{W5670291.3} 9 2.14 Investment Company. The Parent is not, and is not an Affiliate of, and immediately after the issuance of the Units, will not be or be an Affiliate of, an investment company within the meaning of the Investment Company Act of 1940 , as amended. 2.15 Listing and Maintenance Requirements. The Parents Common Units are registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Parent has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of such units under the Exchange Act nor has the Parent received any notification that the Commission is contemplating terminating such registration. The Parent has not, in the 12 months preceding the date hereof, received notice from the NYSE to the effect that the Parent is not in compliance with the listing or maintenance requirements thereof. The Parent is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. The Units are currently eligible for electronic transfer through the American Stock Transfer & Trust Company and the Parent is current in payment of fees thereto in connection with such electronic transfer. 3\. Representations and Warranties of the Investor. The Investor hereby represents and warrants as of the date hereof and as of the Closing to the Parent as follows (unless such representation or warranty is as of a date otherwise specified): 3.1 Organization; Authority. The Investor is an entity duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation with full right, corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement and performance by the Investor of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Investor. This Agreement has been duly executed by the Investor, and when delivered by the Investor in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Investor, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law. 3.2 No Conflicts. The execution, delivery and performance by the Investor of this Agreement, the issuance and sale of the Units and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the Investors certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Investor, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing an Investor debt or otherwise) or other

{ W5670291 . 3 } 9 2 . 14 Investment Company . The Parent is not , and is not an Affiliate of , and immediately after the issuance of the Units , will not be or be an Affiliate of , an investment company within the meaning of the Investment Company Act of 1940 , as amended . 2 . 15 Listing and Maintenance Requirements . The Parents Common Units are registered pursuant to Section 12 ( b ) or 12 ( g ) of the Exchange Act , and the Parent has taken no action designed to , or which to its knowledge is likely to have the effect of , terminating the registration of such units under the Exchange Act nor has the Parent received any notification that the Commission is contemplating terminating such registration . The Parent has not , in the 12 months preceding the date hereof , received notice from the NYSE to the effect that the Parent is not in compliance with the listing or maintenance requirements thereof . The Parent is , and has no reason to believe that it will not in the foreseeable future continue to be , in compliance with all such listing and maintenance requirements . The Units are currently eligible for electronic transfer through the American Stock Transfer & amp ; Trust Company and the Parent is current in payment of fees thereto in connection with such electronic transfer . 3 \ . Representations and Warranties of the Investor . The Investor hereby represents and warrants as of the date hereof and as of the Closing to the Parent as follows ( unless such representation or warranty is as of a date otherwise specified ) : 3 . 1 Organization ; Authority . The Investor is an entity duly incorporated , validly existing and in good standing under the laws of the jurisdiction of its incorporation with full right , corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder . The execution and delivery of this Agreement and performance by the Investor of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Investor . This Agreement has been duly executed by the Investor , and when delivered by the Investor in accordance with the terms hereof , will constitute the valid and legally binding obligation of the Investor , enforceable against it in accordance with its terms , except : ( i ) as limited by general equitable principles and applicable bankruptcy , insolvency , reorganization , moratorium and other laws of general application affecting enforcement of creditors rights generally , ( ii ) as limited by laws relating to the availability of specific performance , injunctive relief or other equitable remedies and ( iii ) insofar as indemnification and contribution provisions may be limited by applicable law . 3 . 2 No Conflicts . The execution , delivery and performance by the Investor of this Agreement , the issuance and sale of the Units and the consummation by it of the transactions contemplated hereby do not and will not ( i ) conflict with or violate any provision of the Investors certificate or articles of incorporation , bylaws or other organizational or charter documents , or ( ii ) conflict with , or constitute a default ( or an event that with notice or lapse of time or both would become a default ) under , result in the creation of any Lien upon any of the properties or assets of the Investor , or give to others any rights of termination , amendment , acceleration or cancellation ( with or without notice , lapse of time or both ) of , any agreement , credit facility , debt or other instrument ( evidencing an Investor debt or otherwise ) or other


{W5670291.3} 10 understanding to which the Investor is a party or by which any property or asset of the Investor is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Investor is subject (including federal and state securities laws and regulations), or by which any property or asset of the Investor is bound or affected; except in the case of each of clauses (ii) and (iii), such as would not reasonably be expected to result in a Material Adverse Effect. 3.3 Understandings or Arrangements. The Investor understands that the Units are restricted securities and have not been registered under the Securities Act or any applicable state securities law and is acquiring the Units as principal for its own account and not with a view to or for distributing or reselling such Units or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing any of such Units in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Units in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting the Investors right to sell the Units pursuant to an effective registration statement or otherwise in compliance with applicable federal and state securities laws). 3.4 Unregistered Securities. (a) Accredited Investor Status; Sophisticated Investor. The Investor is an accredited investor within the meaning of Rule 501 under the Securities Act and is able to bear the risk of its investment in the Units. The Investor has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the purchase of the Units. (b) Information. The Investor has been furnished with materials relating to the business, finances and operations of the Parent and its Subsidiaries and relating to the offer and sale of the Units that have been requested by the Investor. The Investor has been afforded the opportunity to ask questions of the Parent and its Subsidiaries. The Investor understands and acknowledges that its purchase of the Units involves a high degree of risk and uncertainty. The Investor has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its investment in the Units. (c) Investor Representation. The Investor is purchasing the Units for its own account and not with a view to distribution in violation of any securities Laws. The Investor has been advised and understands and acknowledges that none of the Units have been registered under the Securities Act or under the blue sky Laws of any jurisdiction and may, subject to the provisions hereof, be resold only if registered pursuant to the provisions of the Securities Act ( or if eligible, pursuant to the provisions of Rule 144 promulgated under the Securities Act or pursuant to another available exemption from the registration requirements of the Securities Act). The Investor has been advised of and is

{ W5670291 . 3 } 10 understanding to which the Investor is a party or by which any property or asset of the Investor is bound or affected , or ( iii ) subject to the Required Approvals , conflict with or result in a violation of any law , rule , regulation , order , judgment , injunction , decree or other restriction of any court or governmental authority to which the Investor is subject ( including federal and state securities laws and regulations ) , or by which any property or asset of the Investor is bound or affected ; except in the case of each of clauses ( ii ) and ( iii ) , such as would not reasonably be expected to result in a Material Adverse Effect . 3 . 3 Understandings or Arrangements . The Investor understands that the Units are restricted securities and have not been registered under the Securities Act or any applicable state securities law and is acquiring the Units as principal for its own account and not with a view to or for distributing or reselling such Units or any part thereof in violation of the Securities Act or any applicable state securities law , has no present intention of distributing any of such Units in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Units in violation of the Securities Act or any applicable state securities law ( this representation and warranty not limiting the Investors right to sell the Units pursuant to an effective registration statement or otherwise in compliance with applicable federal and state securities laws ) . 3 . 4 Unregistered Securities . ( a ) Accredited Investor Status ; Sophisticated Investor . The Investor is an accredited investor within the meaning of Rule 501 under the Securities Act and is able to bear the risk of its investment in the Units . The Investor has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the purchase of the Units . ( b ) Information . The Investor has been furnished with materials relating to the business , finances and operations of the Parent and its Subsidiaries and relating to the offer and sale of the Units that have been requested by the Investor . The Investor has been afforded the opportunity to ask questions of the Parent and its Subsidiaries . The Investor understands and acknowledges that its purchase of the Units involves a high degree of risk and uncertainty . The Investor has sought such accounting , legal and tax advice as it has considered necessary to make an informed investment decision with respect to its investment in the Units . ( c ) Investor Representation . The Investor is purchasing the Units for its own account and not with a view to distribution in violation of any securities Laws . The Investor has been advised and understands and acknowledges that none of the Units have been registered under the Securities Act or under the blue sky Laws of any jurisdiction and may , subject to the provisions hereof , be resold only if registered pursuant to the provisions of the Securities Act ( or if eligible , pursuant to the provisions of Rule 144 promulgated under the Securities Act or pursuant to another available exemption from the registration requirements of the Securities Act ) . The Investor has been advised of and is


{W5670291.3} 13 (c) Obligations of the Parent. In connection with its obligations under this Section 4.2, the Parent shall: (i) prepare and file with the Commission the registration statements with respect to the Registrable Securities in accordance with the terms of this Agreement and use its commercially reasonable efforts to cause such registration statements to become effective and keep such registration statements effective until the distribution contemplated in such registration statements has been completed and as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the securities covered by such registration statements; (ii) prepare and file with the Commission such amendments and supplements to such registration statements, and the prospectus used in connection with such registration statements, as may be necessary to comply with the Securities Act in order to enable the disposition of all securities covered by such registration statement; (iii) furnish to the Investor such numbers of copies of a prospectus, including a preliminary prospectus, as required by the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate its disposition of its Registrable Securities; (iv) use its commercially reasonable efforts to register and qualify the securities covered by such registration statements under such other securities or blue-sky laws of such jurisdictions as shall be reasonably requested by the Investor; provided that the Parent shall not be required to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Parent is already subject to service in such jurisdiction and except as may be required by the Securities Act; ( v) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the underwriter(s) of such offering; (vi) use its commercially reasonable efforts to cause all such Registrable Securities covered by such registration statements to be listed on a national securities exchange or trading system and each securities exchange and trading system (if any) on which similar securities issued by the Parent are then listed; (vii) provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and provide a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration;

{ W5670291 . 3 } 13 ( c ) Obligations of the Parent . In connection with its obligations under this Section 4 . 2 , the Parent shall : ( i ) prepare and file with the Commission the registration statements with respect to the Registrable Securities in accordance with the terms of this Agreement and use its commercially reasonable efforts to cause such registration statements to become effective and keep such registration statements effective until the distribution contemplated in such registration statements has been completed and as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the securities covered by such registration statements ; ( ii ) prepare and file with the Commission such amendments and supplements to such registration statements , and the prospectus used in connection with such registration statements , as may be necessary to comply with the Securities Act in order to enable the disposition of all securities covered by such registration statement ; ( iii ) furnish to the Investor such numbers of copies of a prospectus , including a preliminary prospectus , as required by the Securities Act , and such other documents as the Investor may reasonably request in order to facilitate its disposition of its Registrable Securities ; ( iv ) use its commercially reasonable efforts to register and qualify the securities covered by such registration statements under such other securities or blue-sky laws of such jurisdictions as shall be reasonably requested by the Investor ; provided that the Parent shall not be required to qualify to do business or to file a general consent to service of process in any such states or jurisdictions , unless the Parent is already subject to service in such jurisdiction and except as may be required by the Securities Act ; ( v ) in the event of any underwritten public offering , enter into and perform its obligations under an underwriting agreement , in usual and customary form , with the underwriter ( s ) of such offering ; ( vi ) use its commercially reasonable efforts to cause all such Registrable Securities covered by such registration statements to be listed on a national securities exchange or trading system and each securities exchange and trading system ( if any ) on which similar securities issued by the Parent are then listed ; ( vii ) provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and provide a CUSIP number for all such Registrable Securities , in each case not later than the effective date of such registration ;


[Signature Pageto Indemnification Agreement ]

[ Signature Pageto Indemnification Agreement ]


THIS INDEMNIFICATION AGREEMENT (the Agreement) is made and entered into as of ____________________, 20___ between Funko, Inc. , a Delaware corporation (the Company), and _______________________________ (Indemnitee).

THIS INDEMNIFICATION AGREEMENT ( the Agreement ) is made and entered into as of ____________________ , 20___ between Funko , Inc . , a Delaware corporation ( the Company ) , and _______________________________ ( Indemnitee ) .


THIS SETTLEMENT AND RELEASE AGREEMENT (this Agreement), dated as of February20, 2017 (Effective Date), is made and entered into by and among Yahoo! Inc. , a Delaware corporation (Seller), Yahoo Holdings Inc. , a Delaware corporation (the Company), and Verizon Communications Inc., a Delaware corporation (Purchaser). Capitalized terms used but not otherwise defined herein have the meanings set forth in Section1 below.

THIS SETTLEMENT AND RELEASE AGREEMENT ( this Agreement ) , dated as of February20 , 2017 ( Effective Date ) , is made and entered into by and among Yahoo ! Inc . , a Delaware corporation ( Seller ) , Yahoo Holdings Inc . , a Delaware corporation ( the Company ) , and Verizon Communications Inc . , a Delaware corporation ( Purchaser ) . Capitalized terms used but not otherwise defined herein have the meanings set forth in Section1 below .


Facsimile: (650) 493-6811 Attn: | | Larry Sonsini Email: | | LSonsini@wsgr.com

Facsimile : ( 650 ) 493-6811 Attn : | | Larry Sonsini Email : | | LSonsini @ wsgr . com


Basking Ridge, NJ 07920


Facsimile: 908-766-3818 Attn: | | William L. Horton, Jr., Senior Vice President, Deputy General | | Counsel and Corporate Secretary | | Michael Rosenblat, Vice President, Associate General Counsel Email: | |

Facsimile : 908-766-3818 Attn : | | William L . Horton , Jr . , Senior Vice President , Deputy General | | Counsel and Corporate Secretary | | Michael Rosenblat , Vice President , Associate General Counsel Email : | |


EX-10.5 5 bfdi_ex105.htm SUBLEASE AGREEMENT BETWEEN GLOBAL PUBLIC SAFETY, LLC AND BREKFORD CORP.

EX-10 . 5 5 bfdi_ex105 . htm SUBLEASE AGREEMENT BETWEEN GLOBAL PUBLIC SAFETY , LLC AND BREKFORD CORP .


THIS SUBLEASE ("Sublease") is made as of the 28th day of February 2017 , by and between Global Public Safety, LLC a Delaware limited liability company (Landlord) and B rekford Corp. , a Delaware corporation ("Tenant").

THIS SUBLEASE ( " Sublease " ) is made as of the 28th day of February 2017 , by and between Global Public Safety , LLC a Delaware limited liability company ( Landlord ) and B rekford Corp . , a Delaware corporation ( " Tenant " ) .


Rent shall be paid to the Landlord at 7020 Dorsey Road, Suite C, Hanover, MD 21076, or to such address as Landlord may from time to time notify Tenant, without prior demand, and without abatement, deduction, or set-off except as set forth in this Sublease.

Rent shall be paid to the Landlord at 7020 Dorsey Road , Suite C , Hanover , MD 21076 , or to such address as Landlord may from time to time notify Tenant , without prior demand , and without abatement , deduction , or set-off except as set forth in this Sublease .


To Landlord: Global Public Safety, LLC , 7020 Dorsey Road, Suite C, Hanover, Maryland <sup> 21076, or at such other address as Landlord may furnish to Tenant for this purpose.

To Landlord : Global Public Safety , LLC , 7020 Dorsey Road , Suite C , Hanover , Maryland < sup > 21076 , or at such other address as Landlord may furnish to Tenant for this purpose .


EX-10.1 4 fs12017ex10i_forgeinnovation.htm CONSULTING AGREEMENT DATED NOV. 5, 2016, BETWEEN THE COMPANY AND SPEEDLIGHT CONSULTING SERVICES INC

EX-10 . 1 4 fs12017ex10i_forgeinnovation . htm CONSULTING AGREEMENT DATED NOV . 5 , 2016 , BETWEEN THE COMPANY AND SPEEDLIGHT CONSULTING SERVICES INC


THIS CONSULTING AGREEMENT (this Agreement) is made and entered into as of 11/05/2016 (the Effective Date), by and between Forge Innovation Development Corp. (the Company) and Speedlight Consulting Services Inc. (the Consultant). The parties (collectively, the Parties) hereto hereby agree as follows:

THIS CONSULTING AGREEMENT ( this Agreement ) is made and entered into as of 11 / 05 / 2016 ( the Effective Date ) , by and between Forge Innovation Development Corp . ( the Company ) and Speedlight Consulting Services Inc . ( the Consultant ) . The parties ( collectively , the Parties ) hereto hereby agree as follows :


| -| Coordinate with Legal Counse l, Transfer Agent, Broker Dealer/Market Maker and OTC market to finish the process of quoted for the Company (OTCQB) ---|---|--- | -| Coordinate with Accounting (for financial statement consolidation, MD&A and footnotes), Auditing firm and Legal Counse l to review/compose the financials, footnotes and MD&A for quarterly, annually, S-1 and 8K filings | -| Assessments, interviews and other inquiries to properly ascertain areas where financial practices can be improved | -| Training, mentoring and other guidance to enhance the effectiveness and efficiency of Company personnel in the area of financial management.

| - | Coordinate with Legal Counse l , Transfer Agent , Broker Dealer / Market Maker and OTC market to finish the process of quoted for the Company ( OTCQB ) - - - | - - - | - - - | - | Coordinate with Accounting ( for financial statement consolidation , MD & amp ; A and footnotes ) , Auditing firm and Legal Counse l to review / compose the financials , footnotes and MD & amp ; A for quarterly , annually , S-1 and 8K filings | - | Assessments , interviews and other inquiries to properly ascertain areas where financial practices can be improved | - | Training , mentoring and other guidance to enhance the effectiveness and efficiency of Company personnel in the area of financial management .


This Agreement will commence on the effective date set forth and continue for a period of Ten months from the effective date. The Company may at its option agree to renew, extend and revise this Agreement prior to its expiration. However, if the quoted process cannot be finished within ten-month period, the Company and the Consultant agree the services to be continued as follows:

This Agreement will commence on the effective date set forth and continue for a period of Ten months from the effective date . The Company may at its option agree to renew , extend and revise this Agreement prior to its expiration . However , if the quoted process cannot be finished within ten-month period , the Company and the Consultant agree the services to be continued as follows :


1). If the delay was caused by the Company without any reasonable ground, the Consultant shall have the right to choose to continue or terminate the services at any time. If the service was terminated, all the unpaid compensation ( 3,000,000 shares of Companys rule 144 restricted stock) shall be issued to the Consultant immediately. However, if the Consultant agrees to continue the services, additional fees may be charged from the Company for service performed.

1 ) . If the delay was caused by the Company without any reasonable ground , the Consultant shall have the right to choose to continue or terminate the services at any time . If the service was terminated , all the unpaid compensation ( 3 , 000 , 000 shares of Companys rule 144 restricted stock ) shall be issued to the Consultant immediately . However , if the Consultant agrees to continue the services , additional fees may be charged from the Company for service performed .


The Company agrees to pay the Consultant 3,000,000 shares of the Companys Rule 144 Restricted Stock for the consulting service compensation of the contract period. However, the Consultants compensation WILL NOT include the fees of the Company to retain the services of Legal Counsel, Transfer Agent, Broker Dealer/Market Maker, OTC market, Accounting and Auditing firms for the purposes of quoted on the OTC market (OTCQB).

The Company agrees to pay the Consultant 3 , 000 , 000 shares of the Companys Rule 144 Restricted Stock for the consulting service compensation of the contract period . However , the Consultants compensation WILL NOT include the fees of the Company to retain the services of Legal Counsel , Transfer Agent , Broker Dealer / Market Maker , OTC market , Accounting and Auditing firms for the purposes of quoted on the OTC market ( OTCQB ) .


Forge Innovation Development Corp.


17700 Castleton Street, Suite 469


Address: 1108 W Valley Blvd. Suite 6-10, Alhambra CA 91803

Address : 1108 W Valley Blvd . Suite 6-10 , Alhambra CA 91803


(h)Arbitration. Any controversy between or among the Parties involving any claim arising out of or relating to this Agreement or the other Agreements or documents contemplated herein shall be finally settled by arbitration in Los Angeles County, California, in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator shall have the power to issue any award, judgment, decree or order of relief that a court of law or equity could issue under such applicable law and any such award, judgment, decree or order of relief shall be in compliance with California law.

( h ) Arbitration . Any controversy between or among the Parties involving any claim arising out of or relating to this Agreement or the other Agreements or documents contemplated herein shall be finally settled by arbitration in Los Angeles County , California , in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association , and judgment upon the award rendered by the arbitrator ( s ) may be entered in any court having jurisdiction thereof . The arbitrator shall have the power to issue any award , judgment , decree or order of relief that a court of law or equity could issue under such applicable law and any such award , judgment , decree or order of relief shall be in compliance with California law .


This Consulting/Advisory Board Agreement (the Agreement) is entered into effective as of [May 1st], 2017 (the Effective Date) by and between Dr. James Mul located at [ 10441 University Center Drive, Tampa, FL 33612] (the Consultant) and Stony Hill Corp. , a Nevada corporation (Stony Hill and together with the Consultant, the Parties).

This Consulting / Advisory Board Agreement ( the Agreement ) is entered into effective as of [ May 1st ] , 2017 ( the Effective Date ) by and between Dr . James Mul located at [ 10441 University Center Drive , Tampa , FL 33612 ] ( the Consultant ) and Stony Hill Corp . , a Nevada corporation ( Stony Hill and together with the Consultant , the Parties ) .


(a) Term; Termination. The Consultants performance of Services shall commence on the Effective Date and shall continue thereafter for three (3) years , unless sooner terminated as provided herein (the Term). Stony Hill or the Consultant may terminate this Agreement at any time upon providing the other party written notice of such termination at least ten (10) business days prior to the termination date.

( a ) Term ; Termination . The Consultants performance of Services shall commence on the Effective Date and shall continue thereafter for three ( 3 ) years , unless sooner terminated as provided herein ( the Term ) . Stony Hill or the Consultant may terminate this Agreement at any time upon providing the other party written notice of such termination at least ten ( 10 ) business days prior to the termination date .


Inventions shall mean, for purposes of this Section 7, ideas, discoveries, creations, manuscripts and properties, innovations, improvements, know-how, inventions, trade secrets, apparatus, developments, techniques, methods, biological processes, cell lines, laboratory notebooks and formulas (whether or not patentable or copyrightable or constituting trade secrets) conceived, made or discovered by the Consultant (whether alone or with others) within the Field (i) solely as a direct result of consulting with Stony Hill under this Agreement and (ii) not in the course of the Consultants activities as an employee of Principal Institution. In no event shall the Consultants obligations hereunder relate to any right, title or interest that the Consultant may have in ideas, discoveries, creations, manuscripts and properties, innovations, improvements, know-how, inventions, trade secrets, apparatus, developments, techniques, methods, biological processes, cell lines, laboratory notebooks and formulas (whether or not patentable or copyrightable or constituting trade secrets) conceived, made or discovered by the Consultant (whether alone or with others) with the use of facilities or findings of any Affiliated Institution and that the Consultant is required to assign to his Affiliated Institution pursuant to the rules and regulations of such Affiliated Institution. Further, Stony Hill will have no rights by reason of this Agreement in any publication, invention, discovery, improvement, or other intellectual property whatsoever, whether or not publishable, patentable, or copyrightable, which is developed as a result of a program of research financed, in whole or in part, by funds provided by or under the control of the Principal Institution. The Consultant agrees to not knowingly use or incorporate any third party proprietary information into any Inventions or to disclose such information to Stony Hill. Upon termination of this Agreement with Stony Hill, the Consultant shall provide to Stony Hill in writing a full, signed statement of all Inventions in which the Consultant participated prior to termination of this Agreement.

Inventions shall mean , for purposes of this Section 7 , ideas , discoveries , creations , manuscripts and properties , innovations , improvements , know-how , inventions , trade secrets , apparatus , developments , techniques , methods , biological processes , cell lines , laboratory notebooks and formulas ( whether or not patentable or copyrightable or constituting trade secrets ) conceived , made or discovered by the Consultant ( whether alone or with others ) within the Field ( i ) solely as a direct result of consulting with Stony Hill under this Agreement and ( ii ) not in the course of the Consultants activities as an employee of Principal Institution . In no event shall the Consultants obligations hereunder relate to any right , title or interest that the Consultant may have in ideas , discoveries , creations , manuscripts and properties , innovations , improvements , know-how , inventions , trade secrets , apparatus , developments , techniques , methods , biological processes , cell lines , laboratory notebooks and formulas ( whether or not patentable or copyrightable or constituting trade secrets ) conceived , made or discovered by the Consultant ( whether alone or with others ) with the use of facilities or findings of any Affiliated Institution and that the Consultant is required to assign to his Affiliated Institution pursuant to the rules and regulations of such Affiliated Institution . Further , Stony Hill will have no rights by reason of this Agreement in any publication , invention , discovery , improvement , or other intellectual property whatsoever , whether or not publishable , patentable , or copyrightable , which is developed as a result of a program of research financed , in whole or in part , by funds provided by or under the control of the Principal Institution . The Consultant agrees to not knowingly use or incorporate any third party proprietary information into any Inventions or to disclose such information to Stony Hill . Upon termination of this Agreement with Stony Hill , the Consultant shall provide to Stony Hill in writing a full , signed statement of all Inventions in which the Consultant participated prior to termination of this Agreement .


12\. Other Consulting Services . During the Term, without the prior written consent of Stony Hill, the Consultant will not be employed or engaged by or otherwise render services for or on behalf of another company engaged in the Field. Stony Hill agrees that the Consultant may serve as a member of scientific advisory boards or in a similar capacity with, and provide consulting services to, other companies in scientific areas outside of the Field, provided that such services do not conflict or materially interfere with his Services hereunder.

12 \ . Other Consulting Services . During the Term , without the prior written consent of Stony Hill , the Consultant will not be employed or engaged by or otherwise render services for or on behalf of another company engaged in the Field . Stony Hill agrees that the Consultant may serve as a member of scientific advisory boards or in a similar capacity with , and provide consulting services to , other companies in scientific areas outside of the Field , provided that such services do not conflict or materially interfere with his Services hereunder .


14\. Disclosure of Relationship . The Parties each shall be entitled to disclose that the Consultant is providing consulting services to Stony Hill for which he is being compensated and is on the Stony Hill AB, and Stony Hill may use the Consultants name, including in any business plan, press release, advertisement, prospectus or other offering document of Stony Hill or its affiliates, so long as any such usage (a) is limited to reporting factual events or occurrences only, and (b) is made in a manner that could not reasonably constitute a specific endorsement by the Consultant of Stony Hill or of any program, product or service of Stony Hill. However, Stony Hill shall not use the Consultants name in any press release, or quote the Consultant in any Stony Hill materials (including advertisements), or otherwise use the Consultants name in a manner not specifically permitted by the preceding sentence, unless in each case Stony Hill obtains in advance the Consultants consent. The foregoing consents shall not be unreasonably withheld or delayed by the Consultant. Notwithstanding the foregoing, if, in the opinion of Stony Hills counsel, Stony Hill is required by applicable law to use the Consultants name in a press release or governmental filing and, under the circumstances, Stony Hill is not reasonably able to obtain the advance written consent of the Consultant, as applicable, to such use, then Stony Hill may proceed without obtaining the advance written consent of the Consultant.

14 \ . Disclosure of Relationship . The Parties each shall be entitled to disclose that the Consultant is providing consulting services to Stony Hill for which he is being compensated and is on the Stony Hill AB , and Stony Hill may use the Consultants name , including in any business plan , press release , advertisement , prospectus or other offering document of Stony Hill or its affiliates , so long as any such usage ( a ) is limited to reporting factual events or occurrences only , and ( b ) is made in a manner that could not reasonably constitute a specific endorsement by the Consultant of Stony Hill or of any program , product or service of Stony Hill . However , Stony Hill shall not use the Consultants name in any press release , or quote the Consultant in any Stony Hill materials ( including advertisements ) , or otherwise use the Consultants name in a manner not specifically permitted by the preceding sentence , unless in each case Stony Hill obtains in advance the Consultants consent . The foregoing consents shall not be unreasonably withheld or delayed by the Consultant . Notwithstanding the foregoing , if , in the opinion of Stony Hills counsel , Stony Hill is required by applicable law to use the Consultants name in a press release or governmental filing and , under the circumstances , Stony Hill is not reasonably able to obtain the advance written consent of the Consultant , as applicable , to such use , then Stony Hill may proceed without obtaining the advance written consent of the Consultant .


19\. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California, without regard to conflict of law principles.

19 \ . Governing Law . This Agreement shall be governed by and construed in accordance with the internal laws of the State of California , without regard to conflict of law principles .


Stony Hill Corp., President Chris Bridges

Stony Hill Corp . , President Chris Bridges


EX-10.1 5 xplosion_ex101.htm EXCLUSIVE GLOBAL RIGHTS AGREEMENT


EXCLUSIVE GLOBAL RIGHTS AGREEMENT


THIS AGREEMENT dated for reference the 7thday of December 2015 .


8.1| The Technology Holder represents and warrants that at the time of execution of this Agreement it has not received notice of any claim by a third party of an ownership interest in or infringement of third party rights by the Technology Holder patents. Except for the foregoing and as set forth in Section 12.2, the Technology Holder makes no representations or warranties of any kind, express or implied, concerning the Technology Holder patents, including, but not limited to, representations and warranties as to non- infringement, merchantability and fitness for any particular purpose. ---|---

8 . 1 | The Technology Holder represents and warrants that at the time of execution of this Agreement it has not received notice of any claim by a third party of an ownership interest in or infringement of third party rights by the Technology Holder patents . Except for the foregoing and as set forth in Section 12 . 2 , the Technology Holder makes no representations or warranties of any kind , express or implied , concerning the Technology Holder patents , including , but not limited to , representations and warranties as to non - infringement , merchantability and fitness for any particular purpose . - - - | - - -


| 8.2| The Technology Holder PATENTS, TECHNOLOGY , any other intellectual property rights AND ANY OTHER INFORMATION OR TECHNOLOGY PROVIDED BY the Technology Holder AND USED IN THE MANUFACTURE, USE, IMPORT, SALE, OFFER FOR SALE, or LEASE ARE PROVIDED ON AN AS IS BASIS AND the Technology Holder MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT THERETO. BY WAY OF EXAMPLE BUT NOT OF LIMITATION, the Technology Holder MAKES NO REPRESENTATIONS OR WARRANTIES (I) OF COMMERCIAL UTILITY , OR (II) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR (III) THAT THE USE OF THE Technology Holder PATENTS, intellectual property OR THE LICENSED TECHNOLOGY, WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER PROPRIETARY OR PROPERTY RIGHTS OF OTHERS.

| 8 . 2 | The Technology Holder PATENTS , TECHNOLOGY , any other intellectual property rights AND ANY OTHER INFORMATION OR TECHNOLOGY PROVIDED BY the Technology Holder AND USED IN THE MANUFACTURE , USE , IMPORT , SALE , OFFER FOR SALE , or LEASE ARE PROVIDED ON AN AS IS BASIS AND the Technology Holder MAKES NO REPRESENTATIONS OR WARRANTIES , EXPRESS OR IMPLIED , WITH RESPECT THERETO . BY WAY OF EXAMPLE BUT NOT OF LIMITATION , the Technology Holder MAKES NO REPRESENTATIONS OR WARRANTIES ( I ) OF COMMERCIAL UTILITY , OR ( II ) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE , OR ( III ) THAT THE USE OF THE Technology Holder PATENTS , intellectual property OR THE LICENSED TECHNOLOGY , WILL NOT INFRINGE ANY PATENT , COPYRIGHT , TRADEMARK , OR OTHER PROPRIETARY OR PROPERTY RIGHTS OF OTHERS .


Construction of Agreement. The Parties acknowledge and agree that both Parties substantially participated in negotiating the provisions of this Agreement; therefore, both Parties agree that this Agreement shall not be construed more favorably toward one Party than the other Party, regardless of which Party primarily drafted the Agreement. The Section and other headings in this Agreement are for convenience of reference only and shall not affect, expressly or by implication, the meaning or interpretation of any of the provisions hereof.

Construction of Agreement . The Parties acknowledge and agree that both Parties substantially participated in negotiating the provisions of this Agreement ; therefore , both Parties agree that this Agreement shall not be construed more favorably toward one Party than the other Party , regardless of which Party primarily drafted the Agreement . The Section and other headings in this Agreement are for convenience of reference only and shall not affect , expressly or by implication , the meaning or interpretation of any of the provisions hereof .


XPLOSION INCORPORATED , a Nevada corporation (hereinafter referred to as "the Xplosion Incorporated")

XPLOSION INCORPORATED , a Nevada corporation ( hereinafter referred to as " the Xplosion Incorporated " )


This LOAN AGREEMENT , dated as of January 12, 2017 (as amended, supplemented or otherwise modified, this Agreement) is made between American Realty Capital Hospitality Trust, Inc. , a Maryland corporation (the Borrower) and Summit Hotel OP, LP (the Lender).

This LOAN AGREEMENT , dated as of January 12 , 2017 ( as amended , supplemented or otherwise modified , this Agreement ) is made between American Realty Capital Hospitality Trust , Inc . , a Maryland corporation ( the Borrower ) and Summit Hotel OP , LP ( the Lender ) .


WHEREAS, the Borrower and the Lender have entered into that certain Loan Agreement, dated as of February 11, 2016 (as amended, supplemented or otherwise modified from time to time, the Existing Loan Agreement), pursuant to which the Lender extended a loan to the Borrower in an aggregate original principal amount of $27,500,000 ; and

WHEREAS , the Borrower and the Lender have entered into that certain Loan Agreement , dated as of February 11 , 2016 ( as amended , supplemented or otherwise modified from time to time , the Existing Loan Agreement ) , pursuant to which the Lender extended a loan to the Borrower in an aggregate original principal amount of $ 27 , 500 , 000 ; and


1.Use of Proceeds. The proceeds of the Loan made by the Lender on the date hereof will be deemed applied as consideration for the entry into that certain letter agreement, dated as of January 12, 2017 , between American Realty Capital Hospitality Portfolio SMT ALT, LLC, Summit Hotel OP, LP and each of the Sellers identified therein (the Summit II PSA Amendment, amending that certain Real Estate Purchase and Sale Agreement, dated as of June 2, 2015, by and among American Realty Capital Hospitality Portfolio SMT, LLC , as Original Purchaser, the Sellers party thereto and Summit Hotel OP, LP , in its capacity as Seller Representative for the Sellers (as amended, supplemented or otherwise modified, the Summit II Purchase Agreement)).

1 . Use of Proceeds . The proceeds of the Loan made by the Lender on the date hereof will be deemed applied as consideration for the entry into that certain letter agreement , dated as of January 12 , 2017 , between American Realty Capital Hospitality Portfolio SMT ALT , LLC , Summit Hotel OP , LP and each of the Sellers identified therein ( the Summit II PSA Amendment , amending that certain Real Estate Purchase and Sale Agreement , dated as of June 2 , 2015 , by and among American Realty Capital Hospitality Portfolio SMT , LLC , as Original Purchaser , the Sellers party thereto and Summit Hotel OP , LP , in its capacity as Seller Representative for the Sellers ( as amended , supplemented or otherwise modified , the Summit II Purchase Agreement ) ) .


2.Repayment of Principal. The entire principal amount of the Loan, and any accrued and unpaid interest, shall be due and payable on July 31, 2017 (the Maturity Date). The Borrower shall repay the principal amount of the Loan in installments of $1,000,000 on the last day of each of May, June and July 2017 (the Amortization Payments). The Loan may be prepaid in whole or in part at any time, without payment of any penalty or premium. Notwithstanding any provision to the contrary in this Agreement, upon the Closing Date, as defined in the Summit II Purchase Agreement (as amended, supplemented or otherwise modified, the Summit II PSA Closing Date), the Loan shall be deemed paid in full and the Borrower shall have no further obligations with respect thereto, except for unpaid interest accrued and payable in cash under Section 3(a)(i), Section 3(a)(ii), Section 3(b)(i) and Section 3(b)(ii) prior to the Summit II PSA Closing Date, which shall be due and payable on the Summit II PSA Closing Date. If the closing of the acquisition contemplated by the Summit II Purchase Agreement does not occur under the revised terms of the Summit II PSA Amendment, then the full amount of the Loan shall become due and payable on the Maturity Date.

2 . Repayment of Principal . The entire principal amount of the Loan , and any accrued and unpaid interest , shall be due and payable on July 31 , 2017 ( the Maturity Date ) . The Borrower shall repay the principal amount of the Loan in installments of $ 1 , 000 , 000 on the last day of each of May , June and July 2017 ( the Amortization Payments ) . The Loan may be prepaid in whole or in part at any time , without payment of any penalty or premium . Notwithstanding any provision to the contrary in this Agreement , upon the Closing Date , as defined in the Summit II Purchase Agreement ( as amended , supplemented or otherwise modified , the Summit II PSA Closing Date ) , the Loan shall be deemed paid in full and the Borrower shall have no further obligations with respect thereto , except for unpaid interest accrued and payable in cash under Section 3 ( a ) ( i ) , Section 3 ( a ) ( ii ) , Section 3 ( b ) ( i ) and Section 3 ( b ) ( ii ) prior to the Summit II PSA Closing Date , which shall be due and payable on the Summit II PSA Closing Date . If the closing of the acquisition contemplated by the Summit II Purchase Agreement does not occur under the revised terms of the Summit II PSA Amendment , then the full amount of the Loan shall become due and payable on the Maturity Date .


(a)from the date of the Loan to February 11, 2017, thirteen percent ( 13.0% ) per annum (the Basic Interest Rate) until the principal amount has been paid in full (or such earlier date upon which the entire principal amount of the Loan has been paid in full or deemed paid in full under Section 2), of which (i) a portion of the Basic Interest Rate equal to nine percent ( 9.0% ) per annum shall be paid in cash on the last day of each calendar month commencing with January 31, 2017 (each such date, an Interest Payment Date) and (ii) the remaining portion of the Basic Interest Rate equal to four percent ( 4.0% ) per annum, compounded monthly on each Interest Payment Date during such period, together with any incremental amount of accrued interest to the extent interest accrues at the Default Interest Rate, shall be paid in kind and added to the principal amount of the Loan then outstanding on the Maturity Date, unless otherwise paid in cash on or prior to such date; provided that such amount described in Section 3(a)(ii) shall not be added to the principal amount of the Loan, but instead shall be payable in cash on the earlier of (x) the Summit II PSA Closing Date and (y) the termination of the Summit II Purchase Agreement as the result of a breach of the Summit II Purchase Agreement by American Realty Capital Hospitality Portfolio SMT ALT, LLC or its successor or permitted assignee; and

( a ) from the date of the Loan to February 11 , 2017 , thirteen percent ( 13 . 0 % ) per annum ( the Basic Interest Rate ) until the principal amount has been paid in full ( or such earlier date upon which the entire principal amount of the Loan has been paid in full or deemed paid in full under Section 2 ) , of which ( i ) a portion of the Basic Interest Rate equal to nine percent ( 9 . 0 % ) per annum shall be paid in cash on the last day of each calendar month commencing with January 31 , 2017 ( each such date , an Interest Payment Date ) and ( ii ) the remaining portion of the Basic Interest Rate equal to four percent ( 4 . 0 % ) per annum , compounded monthly on each Interest Payment Date during such period , together with any incremental amount of accrued interest to the extent interest accrues at the Default Interest Rate , shall be paid in kind and added to the principal amount of the Loan then outstanding on the Maturity Date , unless otherwise paid in cash on or prior to such date ; provided that such amount described in Section 3 ( a ) ( ii ) shall not be added to the principal amount of the Loan , but instead shall be payable in cash on the earlier of ( x ) the Summit II PSA Closing Date and ( y ) the termination of the Summit II Purchase Agreement as the result of a breach of the Summit II Purchase Agreement by American Realty Capital Hospitality Portfolio SMT ALT , LLC or its successor or permitted assignee ; and


(b)from February 11, 2017 to the Maturity Date, fourteen percent (1 4.0% ) per annum until the principal amount has been paid in full and the Loan has been fully satisfied on the Maturity Date (or such earlier date upon which the entire principal amount of the Loan and all interest thereon has been paid in full), of which (i) a portion of the Basic Interest Rate equal to nine percent ( 9.0% ) per annum shall be paid in cash on each Interest Payment Date and (ii) a portion of the Basic Interest Rate equal to five percent (5.0%) per annum, compounded monthly on each Interest Payment Date during such period, together with any incremental amount of accrued interest to the extent interest accrues at the Default Interest Rate, shall be paid in kind and added to the principal amount of the Loan then outstanding on the Maturity Date, unless otherwise paid in cash on or prior to such date; provided that such amount described in Section 3(b)(ii) shall not be added to the principal amount of the Loan, but instead shall be payable in cash on the earlier of (x) the Summit II PSA Closing Date and (y) the Maturity Date.

( b ) from February 11 , 2017 to the Maturity Date , fourteen percent ( 1 4 . 0 % ) per annum until the principal amount has been paid in full and the Loan has been fully satisfied on the Maturity Date ( or such earlier date upon which the entire principal amount of the Loan and all interest thereon has been paid in full ) , of which ( i ) a portion of the Basic Interest Rate equal to nine percent ( 9 . 0 % ) per annum shall be paid in cash on each Interest Payment Date and ( ii ) a portion of the Basic Interest Rate equal to five percent ( 5 . 0 % ) per annum , compounded monthly on each Interest Payment Date during such period , together with any incremental amount of accrued interest to the extent interest accrues at the Default Interest Rate , shall be paid in kind and added to the principal amount of the Loan then outstanding on the Maturity Date , unless otherwise paid in cash on or prior to such date ; provided that such amount described in Section 3 ( b ) ( ii ) shall not be added to the principal amount of the Loan , but instead shall be payable in cash on the earlier of ( x ) the Summit II PSA Closing Date and ( y ) the Maturity Date .


17.Governing Law. This Agreement and the Loan shall be governed and interpreted in accordance with the laws of the State of New York .

17 . Governing Law . This Agreement and the Loan shall be governed and interpreted in accordance with the laws of the State of New York .


American Realty Capital Hospitality Trust, Inc.

American Realty Capital Hospitality Trust , Inc .


Telephone No.: (646) 626-8857


Facsimile No.: (212) 969-2900


Summit Hotel OP, LP


600 South Main Avenue, Suite 102


Sioux Falls, SD 57104


Facsimile No.: (605) 334-4814


Telephone No.: (605) 334-0005


29 Section 7.01Termination 29


DPA shall mean Section 721 of the Defense Production Act of 1950 , as amended ( 50 U.S.C. 4565 ), and implementing regulations promulgated thereunder (31 C.F.R. Part 800).

DPA shall mean Section 721 of the Defense Production Act of 1950 , as amended ( 50 U . S . C . 4565 ) , and implementing regulations promulgated thereunder ( 31 C . F . R . Part 800 ) .


Knowledge of the Company or the Companys Knowledge means, the knowledge of Peter A. Cohen, Jeffrey M. Solomon, John Holmes, Stephen A. Lasota and Owen Littman, and the knowledge that any such individual would have after reasonable inquiry of the employees reporting directly to such individual.

Knowledge of the Company or the Companys Knowledge means , the knowledge of Peter A . Cohen , Jeffrey M . Solomon , John Holmes , Stephen A . Lasota and Owen Littman , and the knowledge that any such individual would have after reasonable inquiry of the employees reporting directly to such individual .


Person means any individual, partnership, firm, corporation, limited liability company, association, trust, unincorporated organization or other entity, as well as any syndicate or group that would be deemed to be a Person under Section 13(d)(3) of the Exchange Act.< br/>

Person means any individual , partnership , firm , corporation , limited liability company , association , trust , unincorporated organization or other entity , as well as any syndicate or group that would be deemed to be a Person under Section 13 ( d ) ( 3 ) of the Exchange Act . & lt ; br / & gt ;


Section 2.03 Closing. Subject to the terms and conditions of this Agreement and the other Transaction Agreements, the issuance, sale and purchase of the Shares contemplated by this Agreement and the funding of the Loan in accordance with the Term Loan Agreement shall take place at a closing (the Closing) to be held at 10:00 a.m. (New York time) at the offices of Willkie Farr & Gallagher LLP, 787 Seventh Avenue, New York, New York 10019 on the third Business Day after the date that the parties have received notice that each of the conditions set forth in Article VI of this Agreement has been satisfied or has been waived in accordance with the terms hereof (such date, the Closing Date), or at such other date, time and place as the Company and the Investor may mutually agree upon in writing.

Section 2 . 03 Closing . Subject to the terms and conditions of this Agreement and the other Transaction Agreements , the issuance , sale and purchase of the Shares contemplated by this Agreement and the funding of the Loan in accordance with the Term Loan Agreement shall take place at a closing ( the Closing ) to be held at 10 : 00 a . m . ( New York time ) at the offices of Willkie Farr & amp ; Gallagher LLP , 787 Seventh Avenue , New York , New York 10019 on the third Business Day after the date that the parties have received notice that each of the conditions set forth in Article VI of this Agreement has been satisfied or has been waived in accordance with the terms hereof ( such date , the Closing Date ) , or at such other date , time and place as the Company and the Investor may mutually agree upon in writing .


Section 2.05 Closing Deliveries by the Investor. At the Closing , the Investor shall deliver to the Company:

Section 2 . 05 Closing Deliveries by the Investor . At the Closing , the Investor shall deliver to the Company :


Section 3.01 Due Organization and Good Standing of the Company. The Company has been duly organized and is validly existing as a corporation in good standing under the Law of the State of Delaware and has all necessary corporate power and authority to enter into this Agreement and each of the other Transaction Agreements, to carry out its obligations hereunder and thereunder, to consummate the transactions contemplated hereby and thereby, and to own, lease and operate its properties, and to carry on its business as currently being conducted. The Company is duly qualified to do business and is in good standing as a foreign corporation in each other jurisdiction in which such qualification is required, except where the failure so to qualify or to be in good standing would not, individually or in the aggregate, result in a Material Adverse Effect. True, complete and correct copies of the Companys amended and restated certificate of incorporation and bylaws, each as in effect as of the date of this Agreement, have previously been made available to the Investor.

Section 3 . 01 Due Organization and Good Standing of the Company . The Company has been duly organized and is validly existing as a corporation in good standing under the Law of the State of Delaware and has all necessary corporate power and authority to enter into this Agreement and each of the other Transaction Agreements , to carry out its obligations hereunder and thereunder , to consummate the transactions contemplated hereby and thereby , and to own , lease and operate its properties , and to carry on its business as currently being conducted . The Company is duly qualified to do business and is in good standing as a foreign corporation in each other jurisdiction in which such qualification is required , except where the failure so to qualify or to be in good standing would not , individually or in the aggregate , result in a Material Adverse Effect . True , complete and correct copies of the Companys amended and restated certificate of incorporation and bylaws , each as in effect as of the date of this Agreement , have previously been made available to the Investor .


(a) The authorized shares of capital stock of the Company consist of 62,500,000 shares of Class A Common Stock, 62,500,000 shares of Class B Common Stock of the Company, par value $0.01 per share (Class B Common Stock and, with the Class A Common Stock, the Common Stock) and 10,000,000 shares of Series A Convertible Preferred Stock of the Company (Preferred Stock). As of March 23, 2017, (i) 120,750 shares of Preferred Stock are issued and outstanding, (ii) 27,312,493 shares of Class A Common Stock are issued and outstanding, (iii) no shares of Class B Common Stock are issued and outstanding, (iv) 10,139,040 shares of Class A Common Stock are held in treasury, (v) 4,595,975 shares of Class A Common Stock are reserved for issuance upon conversion of the Preferred Stock, (vi) 5,475,548 shares of Class A Common Stock are reserved for issuance under restricted stock units under the Equity Plans, (vii) 75,000 shares of Class A Common Stock are reserved for issuance under stock appreciation rights under the Equity Plans. All of the outstanding shares of capital stock of the Company are duly authorized and validly issued, fully paid and non-assessable, and were issued in compliance with the applicable registration and qualification requirements of applicable Law.

( a ) The authorized shares of capital stock of the Company consist of 62 , 500 , 000 shares of Class A Common Stock , 62 , 500 , 000 shares of Class B Common Stock of the Company , par value $ 0 . 01 per share ( Class B Common Stock and , with the Class A Common Stock , the Common Stock ) and 10 , 000 , 000 shares of Series A Convertible Preferred Stock of the Company ( Preferred Stock ) . As of March 23 , 2017 , ( i ) 120 , 750 shares of Preferred Stock are issued and outstanding , ( ii ) 27 , 312 , 493 shares of Class A Common Stock are issued and outstanding , ( iii ) no shares of Class B Common Stock are issued and outstanding , ( iv ) 10 , 139 , 040 shares of Class A Common Stock are held in treasury , ( v ) 4 , 595 , 975 shares of Class A Common Stock are reserved for issuance upon conversion of the Preferred Stock , ( vi ) 5 , 475 , 548 shares of Class A Common Stock are reserved for issuance under restricted stock units under the Equity Plans , ( vii ) 75 , 000 shares of Class A Common Stock are reserved for issuance under stock appreciation rights under the Equity Plans . All of the outstanding shares of capital stock of the Company are duly authorized and validly issued , fully paid and non-assessable , and were issued in compliance with the applicable registration and qualification requirements of applicable Law .


Section 3.06 Governmental Approvals. The Company or any of its Subsidiaries is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any Governmental Authority or other Person pursuant to any Law or requirement in effect on the date hereof in connection with the execution, delivery and performance by the Company of this Agreement or any of the other Transaction Agreements, other than in connection with or in compliance with (i) its obligations under the Securities Act and the Exchange Act, ( ii) the listing of the Shares pursuant to the rules and regulations of NASDAQ, (iii) the HSR Act, ( iv) the CFIUS Approval and (v) state securities or blue sky Law (collectively, the Company Governmental Approvals), and, subject to the accuracy of the representations and warranties of the Investor in Section 4.04, no authorization, consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any Governmental Authority or other Person may be necessary for the consummation by the Company of the transactions contemplated by this Agreement or any of the other Transaction Agreements, except, in each case, for such authorizations, consents, approvals or filings that, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the consummation by the Company of the transactions contemplated in this Agreement or any of the other Transaction Agreement or the performance by the Company of its obligations hereunder or thereunder. Without limiting the generality of the foregoing, the consummation of the transactions contemplated by the Transaction Agreements will not result in the assignment (as defined in the Investment Advisers Act of 1940 and the Investment Company Act of 1940 ) of any investment advisory agreement to which the Company or any of its Subsidiaries is a party or otherwise require consent or other approval of any advisory client of the Company or any of its Subsidiaries.

Section 3 . 06 Governmental Approvals . The Company or any of its Subsidiaries is not required to obtain any consent , waiver , authorization or order of , give any notice to , or make any filing or registration with , any Governmental Authority or other Person pursuant to any Law or requirement in effect on the date hereof in connection with the execution , delivery and performance by the Company of this Agreement or any of the other Transaction Agreements , other than in connection with or in compliance with ( i ) its obligations under the Securities Act and the Exchange Act , ( ii ) the listing of the Shares pursuant to the rules and regulations of NASDAQ , ( iii ) the HSR Act , ( iv ) the CFIUS Approval and ( v ) state securities or blue sky Law ( collectively , the Company Governmental Approvals ) , and , subject to the accuracy of the representations and warranties of the Investor in Section 4 . 04 , no authorization , consent , order , license , permit or approval of , or registration , declaration , notice or filing with , any Governmental Authority or other Person may be necessary for the consummation by the Company of the transactions contemplated by this Agreement or any of the other Transaction Agreements , except , in each case , for such authorizations , consents , approvals or filings that , if not obtained or made , would not , individually or in the aggregate , reasonably be expected to materially and adversely affect the consummation by the Company of the transactions contemplated in this Agreement or any of the other Transaction Agreement or the performance by the Company of its obligations hereunder or thereunder . Without limiting the generality of the foregoing , the consummation of the transactions contemplated by the Transaction Agreements will not result in the assignment ( as defined in the Investment Advisers Act of 1940 and the Investment Company Act of 1940 ) of any investment advisory agreement to which the Company or any of its Subsidiaries is a party or otherwise require consent or other approval of any advisory client of the Company or any of its Subsidiaries .


Section 3.07 Authorization of the Shares. The Shares have been duly and validly authorized for issuance and sale to the Investor pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued, fully paid and non-assessable and free from all preemptive or similar rights, Taxes (other than Transfer Taxes) and Encumbrances. The issuance of the Shares pursuant to this Agreement is not subject to preemptive or other similar rights of any security holder of the Company and is exempt from registration under the Securities Act.< br/>

Section 3 . 07 Authorization of the Shares . The Shares have been duly and validly authorized for issuance and sale to the Investor pursuant to this Agreement and , when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein , will be validly issued , fully paid and non-assessable and free from all preemptive or similar rights , Taxes ( other than Transfer Taxes ) and Encumbrances . The issuance of the Shares pursuant to this Agreement is not subject to preemptive or other similar rights of any security holder of the Company and is exempt from registration under the Securities Act . & lt ; br / & gt ;


Section 3.16 Investment Company Act. The Company is not required, and upon the issuance and sale of the Shares and the funding of the Loan as herein contemplated and the application of the net proceeds therefrom to the capital or any other accounts of the Company in accordance with the terms of the Transaction Agreements will not be required, to register as an investment company under the Investment Company Act of 1940 .

Section 3 . 16 Investment Company Act . The Company is not required , and upon the issuance and sale of the Shares and the funding of the Loan as herein contemplated and the application of the net proceeds therefrom to the capital or any other accounts of the Company in accordance with the terms of the Transaction Agreements will not be required , to register as an investment company under the Investment Company Act of 1940 .


(a) All employee benefit plans, as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 , as amended (ERISA), as to which the Company or any entity which, with the Company, would be deemed to be a single employer under Section 414(b), (c), (m) or (o) of the Code, has any liability and that are subject to Title IV of ERISA or Section 302 of ERISA or Section 412 of the Code shall be referred to herein as Company Plans. No liability has been incurred under Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code that would have a Material Adverse Effect, and, to the Knowledge of the Company, no facts exist or events have occurred that would result in any such liability that would have a Material Adverse Effect. As of the date hereof, there has been no adverse change in the funded status of the Company Plans and each other pension and other post-employment benefit plans (as such terms are used in Statement of Financial Accounting Standards No. 158) with respect to which the Company has any liability, considered individually and in the aggregate, since December 31, 2016, that could have a Material Adverse Effect.

( a ) All employee benefit plans , as defined in Section 3 ( 3 ) of the Employee Retirement Income Security Act of 1974 , as amended ( ERISA ) , as to which the Company or any entity which , with the Company , would be deemed to be a single employer under Section 414 ( b ) , ( c ) , ( m ) or ( o ) of the Code , has any liability and that are subject to Title IV of ERISA or Section 302 of ERISA or Section 412 of the Code shall be referred to herein as Company Plans . No liability has been incurred under Title IV of ERISA , Section 302 of ERISA or Section 412 of the Code that would have a Material Adverse Effect , and , to the Knowledge of the Company , no facts exist or events have occurred that would result in any such liability that would have a Material Adverse Effect . As of the date hereof , there has been no adverse change in the funded status of the Company Plans and each other pension and other post-employment benefit plans ( as such terms are used in Statement of Financial Accounting Standards No . 158 ) with respect to which the Company has any liability , considered individually and in the aggregate , since December 31 , 2016 , that could have a Material Adverse Effect .


Section 4.04 Governmental Approvals. The Investor is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any Governmental Authority or other Person in the United States or China pursuant to any Law or requirement in effect on the date hereof in connection with the execution, delivery and performance by the Investor of this Agreement or any of the other Transaction Agreements, other than as a result of the identity or status of the Company and/or its Subsidiaries in connection with (i) its obligations under the Exchange Act, ( ii) the HSR Act and (iii) the CFIUS Approval (together with the Company Governmental Approvals, the Governmental Approvals), and, subject to the accuracy of the representations and warranties of the Company in Section 3.06, no authorization, consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any Governmental Authority may be necessary, under applicable Law in effect on the date hereof, for the consummation by the Investor of the transactions contemplated by this Agreement or any of the other Transaction Agreements, except, in each case, for such authorizations, consents, approvals or filings that, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the consummation by the Investor of the transactions contemplated in this Agreement or any of the other Transaction Agreements or the performance by the Investor of its obligations hereunder or thereunder.

Section 4 . 04 Governmental Approvals . The Investor is not required to obtain any consent , waiver , authorization or order of , give any notice to , or make any filing or registration with , any Governmental Authority or other Person in the United States or China pursuant to any Law or requirement in effect on the date hereof in connection with the execution , delivery and performance by the Investor of this Agreement or any of the other Transaction Agreements , other than as a result of the identity or status of the Company and / or its Subsidiaries in connection with ( i ) its obligations under the Exchange Act , ( ii ) the HSR Act and ( iii ) the CFIUS Approval ( together with the Company Governmental Approvals , the Governmental Approvals ) , and , subject to the accuracy of the representations and warranties of the Company in Section 3 . 06 , no authorization , consent , order , license , permit or approval of , or registration , declaration , notice or filing with , any Governmental Authority may be necessary , under applicable Law in effect on the date hereof , for the consummation by the Investor of the transactions contemplated by this Agreement or any of the other Transaction Agreements , except , in each case , for such authorizations , consents , approvals or filings that , if not obtained or made , would not , individually or in the aggregate , reasonably be expected to materially and adversely affect the consummation by the Investor of the transactions contemplated in this Agreement or any of the other Transaction Agreements or the performance by the Investor of its obligations hereunder or thereunder .


(ii) it may not sell or otherwise transfer the Shares, except pursuant to an effective registration under the Securities Act and in accordance with the Investor Rights Agreement, or in a transaction which, in the opinion of counsel reasonably satisfactory to the Company or the Investor, qualifies as an exempt transaction under the Securities Act and the rules and regulations promulgated thereunder; provided, however, that no opinion of counsel will be required if the sale or transfer of such shares is pursuant to Rule 144 promulgated under the Securities Act ( or any other similar rule or regulation of the SEC that may at any time permit the Company to sell its securities to the public without registration);

( ii ) it may not sell or otherwise transfer the Shares , except pursuant to an effective registration under the Securities Act and in accordance with the Investor Rights Agreement , or in a transaction which , in the opinion of counsel reasonably satisfactory to the Company or the Investor , qualifies as an exempt transaction under the Securities Act and the rules and regulations promulgated thereunder ; provided , however , that no opinion of counsel will be required if the sale or transfer of such shares is pursuant to Rule 144 promulgated under the Securities Act ( or any other similar rule or regulation of the SEC that may at any time permit the Company to sell its securities to the public without registration ) ;


Section 5.03 HSR Act. The Company and the Investor agree to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable, and in any event within fifteen (15) Business Days following (but not including) the date hereof, and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable. The Company and the Investor shall each pay 50% of all the costs, expenses and filing fees incurred in connection with obtaining approval pursuant to the HSR Act.< br/>

Section 5 . 03 HSR Act . The Company and the Investor agree to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable , and in any event within fifteen ( 15 ) Business Days following ( but not including ) the date hereof , and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable . The Company and the Investor shall each pay 50 % of all the costs , expenses and filing fees incurred in connection with obtaining approval pursuant to the HSR Act . & lt ; br / & gt ;


Section 5.04 Board Representation. Upon the Closing, (i) the Company shall increase the size of its board of directors by three directors and (ii) the Company shall cause its board of directors to fill this vacancy with three directors designated by the Investor who shall (w) be reasonably acceptable to the Company (which acceptance shall not be unreasonably withheld), (x) be approved by the Nominating and Governance Committee of the Companys board of directors, (y) meet all qualifications required by written policy of the Company and (z) meet the independence standards set forth in the NASDAQ listing rules (the Investor Designees).

Section 5 . 04 Board Representation . Upon the Closing , ( i ) the Company shall increase the size of its board of directors by three directors and ( ii ) the Company shall cause its board of directors to fill this vacancy with three directors designated by the Investor who shall ( w ) be reasonably acceptable to the Company ( which acceptance shall not be unreasonably withheld ) , ( x ) be approved by the Nominating and Governance Committee of the Companys board of directors , ( y ) meet all qualifications required by written policy of the Company and ( z ) meet the independence standards set forth in the NASDAQ listing rules ( the Investor Designees ) .


Section 5.05 Securities Law Filings. The Investor shall timely file all forms, reports and documents required to be filed with the SEC (including filing any required statements of Beneficial Ownership on Schedule 13D or Schedule 13G and such filings as may be required under Section 16 of the Exchange Act).< br/>

Section 5 . 05 Securities Law Filings . The Investor shall timely file all forms , reports and documents required to be filed with the SEC ( including filing any required statements of Beneficial Ownership on Schedule 13D or Schedule 13G and such filings as may be required under Section 16 of the Exchange Act ) . & lt ; br / & gt ;


1 Harbour Road, Wanchai, Hong Kong


Section 4.14. | Leases and Rents | 56 ---|---|--- | | Section 4.15. | Management Agreement | 58 | | Section 4.16. | Payment for Labor and Materials | 60 | | Section 4.17. | Performance of Other Agreements | 61 | | Section 4.18. | Debt Cancellation | 61 | | Section 4.19. | ERISA | 61 | | Section 4.20. | No Joint Assessment | 62 | | Section 4.21. | Alterations | 62 | | Section 4.22. | Intentionally Omitted | 63 | | Section 4.23. | Leasing Agreements | 63 | | Section 4.24. | Embargoed Person | 64 | | Section 4.25. | O&M Program | 64 | | ARTICLE 5. ENTITY COVENANTS | 64 | | Section 5.1. | Single Purpose Entity/Separateness | 64 | | Section 5.2. | Independent Director | 69 | | Section 5.3. | Change of Name, Identity or Structure | 70 | | Section 5.4. | Business and Operations | 71 | | ARTICLE 6. NO SALE OR ENCUMBRANCE | 71 | | Section 6.1. | Transfer Definitions | 71 | | Section 6.2. | No Sale/Encumbrance | 71 | | Section 6.3. | Permitted Equity Transfers | 72 | | Section 6.4. | Assumption | 74 | | Section 6.5. | Lenders Rights | 76 | | Section 6.6. | Economic Sanctions, Anti-Money Laundering and Transfers | 76 | | ARTICLE 7. INSURANCE; CASUALTY; CONDEMNATION; RESTORATION | 77 | | Section 7.1. | Insurance | 77 | | Section 7.2. | Casualty | 82 | | Section 7.3. | Condemnation | 82 | | Section 7.4. | Restoration | 83 | | ARTICLE 8. RESERVE FUNDS | 87 | | Section 8.1. | Intentionally Omitted | 87 | | Section 8.2. | Replacement Reserve Funds | 87 | | Section 8.3. | Leasing Reserve Funds | 88 | -iii-| ---|---|---

Section 4 . 14 . | Leases and Rents | 56 - - - | - - - | - - - | | Section 4 . 15 . | Management Agreement | 58 | | Section 4 . 16 . | Payment for Labor and Materials | 60 | | Section 4 . 17 . | Performance of Other Agreements | 61 | | Section 4 . 18 . | Debt Cancellation | 61 | | Section 4 . 19 . | ERISA | 61 | | Section 4 . 20 . | No Joint Assessment | 62 | | Section 4 . 21 . | Alterations | 62 | | Section 4 . 22 . | Intentionally Omitted | 63 | | Section 4 . 23 . | Leasing Agreements | 63 | | Section 4 . 24 . | Embargoed Person | 64 | | Section 4 . 25 . | O & amp ; M Program | 64 | | ARTICLE 5 . ENTITY COVENANTS | 64 | | Section 5 . 1 . | Single Purpose Entity / Separateness | 64 | | Section 5 . 2 . | Independent Director | 69 | | Section 5 . 3 . | Change of Name , Identity or Structure | 70 | | Section 5 . 4 . | Business and Operations | 71 | | ARTICLE 6 . NO SALE OR ENCUMBRANCE | 71 | | Section 6 . 1 . | Transfer Definitions | 71 | | Section 6 . 2 . | No Sale / Encumbrance | 71 | | Section 6 . 3 . | Permitted Equity Transfers | 72 | | Section 6 . 4 . | Assumption | 74 | | Section 6 . 5 . | Lenders Rights | 76 | | Section 6 . 6 . | Economic Sanctions , Anti-Money Laundering and Transfers | 76 | | ARTICLE 7 . INSURANCE ; CASUALTY ; CONDEMNATION ; RESTORATION | 77 | | Section 7 . 1 . | Insurance | 77 | | Section 7 . 2 . | Casualty | 82 | | Section 7 . 3 . | Condemnation | 82 | | Section 7 . 4 . | Restoration | 83 | | ARTICLE 8 . RESERVE FUNDS | 87 | | Section 8 . 1 . | Intentionally Omitted | 87 | | Section 8 . 2 . | Replacement Reserve Funds | 87 | | Section 8 . 3 . | Leasing Reserve Funds | 88 | - iii - | - - - | - - - | - - -


Approved ID Provider shall mean each of CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, Stewart Management Company and Lord Securities Corporation; provided, that, (A) the foregoing shall be deemed Approved ID Providers unless and until disapproved by any Rating Agency and (B) additional national providers of Independent Directors may be deemed added to the foregoing hereunder to the extent reasonably approved in writing by Lender and approved in writing by the Rating Agencies.

Approved ID Provider shall mean each of CT Corporation , Corporation Service Company , National Registered Agents , Inc . , Wilmington Trust Company , Stewart Management Company and Lord Securities Corporation ; provided , that , ( A ) the foregoing shall be deemed Approved ID Providers unless and until disapproved by any Rating Agency and ( B ) additional national providers of Independent Directors may be deemed added to the foregoing hereunder to the extent reasonably approved in writing by Lender and approved in writing by the Rating Agencies .


Bankruptcy Event shall mean the occurrence of any one or more the of the following: (i) Borrower or any SPE Component Entity shall commence any case, proceeding or other action (A) under the Bankruptcy Code and/or any Creditors Rights Laws seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, liquidation or dissolution or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or substantially all of its assets; (ii) Borrower or any SPE Component Entity shall make a general assignment for the benefit of its creditors; (iii) Borrower, any SPE Component Entity, Guarantor or Affiliated Manager (and/or Person owning an interest (directly or indirectly) in Borrower, any SPE Component Entity, Guarantor or Affiliated Manager, but excluding any Person whose indirect interest in Borrower, any SPE Component Entity and/or Affiliated Manager and/or direct or indirect interest in Guarantor is derived solely from its ownership of shares of stock in ARCNYC REIT, that are listed on the New York Stock Exchange, NASDAQ Global Select Market or another nationally recognized stock exchange, unless (I) such Person is an officer and/or director of Borrower, any SPE Component Entity, Guarantor , any Affiliated Manager and/or their respective Affiliates, (II) such Person owns a ten percent (10%) or greater interest in ARCNYC REIT through its ownership of shares of stock in ARCNYC REIT that are listed on the New York Stock Exchange, NASDAQ Global Select Market or another nationally recognized stock exchange and/or (III) such Person Controls Borrower, any SPE Component Entity, Guarantor , any Affiliated Manager and/or their respective Affiliates) files, or joins or colludes in the filing of, (A) an involuntary petition against Borrower or any SPE Component Entity under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited or colludes with petitioning creditors for any involuntary petition under the Bankruptcy Code or any other Creditors Rights Laws against Borrower or any SPE Component Entity or (B) any case, proceeding or other action under the Bankruptcy Code or any other Creditors Rights Laws seeking issuance of a warrant of attachment, execution, distraint or similar process against all or substantially all of Borrowers or any SPE Component Entitys assets; (iv) Borrower or any SPE Component Entity files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited or colludes with petitioning creditors for any involuntary petition from any Person against Borrower or any SPE Component Entity; (v) Borrower, any SPE Component Entity, Guarantor or Affiliated Manager (and/or Person owning an interest (directly or indirectly) in Borrower, any SPE Component Entity, Guarantor or Affiliated Manager, but excluding any Person whose indirect interest in Borrower, any SPE Component Entity and/or Affiliated Manager and/or direct or indirect interest in Guarantor is derived solely from its ownership of shares of stock in ARCNYC REIT that are listed on the New York Stock Exchange, NASDAQ Global Select Market or another nationally recognized stock exchange, unless (I) such Person is an officer and/or director of Borrower, any SPE Component Entity, Guarantor , any Affiliated Manager and/or their respective Affiliates, (II) such Person owns a ten percent (10%) or greater interest in ARCNYC REIT through its ownership of shares of stock in ARCNYC REIT that are listed on the New York Stock Exchange, NASDAQ Global Select Market or another nationally recognized stock exchange and/or (III) such Person Controls Borrower, any SPE Component Entity, Guarantor , any Affiliated Manager and/or their respective Affiliates) consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, any SPE Component Entity or any portion of the Property; and (vi)Borrower or any SPE Component Entity admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due.

Bankruptcy Event shall mean the occurrence of any one or more the of the following : ( i ) Borrower or any SPE Component Entity shall commence any case , proceeding or other action ( A ) under the Bankruptcy Code and / or any Creditors Rights Laws seeking to have an order for relief entered with respect to it , or seeking to adjudicate it a bankrupt or insolvent , or seeking reorganization , liquidation or dissolution or ( B ) seeking appointment of a receiver , trustee , custodian , conservator or other similar official for it or for all or substantially all of its assets ; ( ii ) Borrower or any SPE Component Entity shall make a general assignment for the benefit of its creditors ; ( iii ) Borrower , any SPE Component Entity , Guarantor or Affiliated Manager ( and / or Person owning an interest ( directly or indirectly ) in Borrower , any SPE Component Entity , Guarantor or Affiliated Manager , but excluding any Person whose indirect interest in Borrower , any SPE Component Entity and / or Affiliated Manager and / or direct or indirect interest in Guarantor is derived solely from its ownership of shares of stock in ARCNYC REIT , that are listed on the New York Stock Exchange , NASDAQ Global Select Market or another nationally recognized stock exchange , unless ( I ) such Person is an officer and / or director of Borrower , any SPE Component Entity , Guarantor , any Affiliated Manager and / or their respective Affiliates , ( II ) such Person owns a ten percent ( 10 % ) or greater interest in ARCNYC REIT through its ownership of shares of stock in ARCNYC REIT that are listed on the New York Stock Exchange , NASDAQ Global Select Market or another nationally recognized stock exchange and / or ( III ) such Person Controls Borrower , any SPE Component Entity , Guarantor , any Affiliated Manager and / or their respective Affiliates ) files , or joins or colludes in the filing of , ( A ) an involuntary petition against Borrower or any SPE Component Entity under the Bankruptcy Code or any other Creditors Rights Laws , or solicits or causes to be solicited or colludes with petitioning creditors for any involuntary petition under the Bankruptcy Code or any other Creditors Rights Laws against Borrower or any SPE Component Entity or ( B ) any case , proceeding or other action under the Bankruptcy Code or any other Creditors Rights Laws seeking issuance of a warrant of attachment , execution , distraint or similar process against all or substantially all of Borrowers or any SPE Component Entitys assets ; ( iv ) Borrower or any SPE Component Entity files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it , by any other Person under the Bankruptcy Code or any other Creditors Rights Laws , or solicits or causes to be solicited or colludes with petitioning creditors for any involuntary petition from any Person against Borrower or any SPE Component Entity ; ( v ) Borrower , any SPE Component Entity , Guarantor or Affiliated Manager ( and / or Person owning an interest ( directly or indirectly ) in Borrower , any SPE Component Entity , Guarantor or Affiliated Manager , but excluding any Person whose indirect interest in Borrower , any SPE Component Entity and / or Affiliated Manager and / or direct or indirect interest in Guarantor is derived solely from its ownership of shares of stock in ARCNYC REIT that are listed on the New York Stock Exchange , NASDAQ Global Select Market or another nationally recognized stock exchange , unless ( I ) such Person is an officer and / or director of Borrower , any SPE Component Entity , Guarantor , any Affiliated Manager and / or their respective Affiliates , ( II ) such Person owns a ten percent ( 10 % ) or greater interest in ARCNYC REIT through its ownership of shares of stock in ARCNYC REIT that are listed on the New York Stock Exchange , NASDAQ Global Select Market or another nationally recognized stock exchange and / or ( III ) such Person Controls Borrower , any SPE Component Entity , Guarantor , any Affiliated Manager and / or their respective Affiliates ) consents to or acquiesces in or joins in an application for the appointment of a custodian , receiver , trustee , or examiner for Borrower , any SPE Component Entity or any portion of the Property ; and ( vi ) Borrower or any SPE Component Entity admits , in writing or in any legal proceeding , its insolvency or inability to pay its debts as they become due .


Exchange Act shall mean the Securities and Exchange Act of 1934 , as amended.

Exchange Act shall mean the Securities and Exchange Act of 1934 , as amended .


Indemnified Person shall mean Lender, any Affiliate of Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co- placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who Controls any such Person within the meaning of Section 15 of the Securities Act of 1933 as amended or Section 20 of the Security Exchange Act of 1934 as amended, any Person who is or will have been involved in the origination of the Loan on behalf of Lender, any Person who is or will have been involved in the servicing of the Loan secured hereby, any Person in whose name the encumbrance created by the Security Instrument is or will have been recorded, any Person who may hold or acquire or will have held a full or partial direct interest in the Loan secured hereby as well as custodians, trustees and other fiduciaries who hold or have held a full or partial direct interest in the Loan secured hereby for the benefit of third parties as well as the respective directors, officers, shareholders, partners, employees, agents, representatives of any and all of the foregoing (including, but not limited to, any successors by merger, consolidation or acquisition of all or a substantial portion of Lenders assets and business) and any receiver or other fiduciary appointed in a foreclosure or other Creditors Rights Laws proceeding.

Indemnified Person shall mean Lender , any Affiliate of Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization , any Affiliate of Lender that acts as an underwriter , placement agent or initial purchaser of Securities issued in the Securitization , any other co-underwriters , co - placement agents or co-initial purchasers of Securities issued in the Securitization , and each of their respective officers , directors , partners , employees , representatives , agents and Affiliates and each Person or entity who Controls any such Person within the meaning of Section 15 of the Securities Act of 1933 as amended or Section 20 of the Security Exchange Act of 1934 as amended , any Person who is or will have been involved in the origination of the Loan on behalf of Lender , any Person who is or will have been involved in the servicing of the Loan secured hereby , any Person in whose name the encumbrance created by the Security Instrument is or will have been recorded , any Person who may hold or acquire or will have held a full or partial direct interest in the Loan secured hereby as well as custodians , trustees and other fiduciaries who hold or have held a full or partial direct interest in the Loan secured hereby for the benefit of third parties as well as the respective directors , officers , shareholders , partners , employees , agents , representatives of any and all of the foregoing ( including , but not limited to , any successors by merger , consolidation or acquisition of all or a substantial portion of Lenders assets and business ) and any receiver or other fiduciary appointed in a foreclosure or other Creditors Rights Laws proceeding .


Legal Requirements shall mean all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting Borrower or the Property or any part thereof, or the construction, use, alteration or operation thereof, or any part thereof, whether now or hereafter enacted and in force, including, without limitation, the Americans with Disabilities Act of 1990 , and all Permits, authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting Borrower or the Property or any part thereof, including, without limitation, any which may (i) require repairs, modifications or alterations in or to the Property or any part thereof, or (ii) in any way limit the use and enjoyment thereof.

Legal Requirements shall mean all federal , state , county , municipal and other governmental statutes , laws , rules , orders , regulations , ordinances , judgments , decrees and injunctions of Governmental Authorities affecting Borrower or the Property or any part thereof , or the construction , use , alteration or operation thereof , or any part thereof , whether now or hereafter enacted and in force , including , without limitation , the Americans with Disabilities Act of 1990 , and all Permits , authorizations and regulations relating thereto , and all covenants , agreements , restrictions and encumbrances contained in any instruments , either of record or known to Borrower , at any time in force affecting Borrower or the Property or any part thereof , including , without limitation , any which may ( i ) require repairs , modifications or alterations in or to the Property or any part thereof , or ( ii ) in any way limit the use and enjoyment thereof .


Property Condition Report shall mean that certain Property Condition Report prepared by EBI as Project # 111700026 6 and delivered to Lender in connection with the closing of the Loan.

Property Condition Report shall mean that certain Property Condition Report prepared by EBI as Project # 111700026 6 and delivered to Lender in connection with the closing of the Loan .


Securities Act shall mean the Securities Act of 1933 , as amended.

Securities Act shall mean the Securities Act of 1933 , as amended .


Significant Obligor shall have the meaning set forth in Item 1101(k) of Regulation AB under the Securities Act.< br/>

Significant Obligor shall have the meaning set forth in Item 1101 ( k ) of Regulation AB under the Securities Act . & lt ; br / & gt ;