Exhibit 10.1




***
Portions hereof have been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidential treatment in accordance with Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.

EXHIBIT 10.1




LOAN AND SECURITY AGREEMENT




Dated as of June 9, 2006




between




The Borrowers Signatory Hereto,




as Borrower,




ABP MD (BALTIMORE) LLC,




as Maryland Loan Guarantor




and




GERMAN AMERICAN CAPITAL CORPORATION,

on behalf of the holders of the Notes,




as Lender





 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION
	 	 	1	 
	 
	 	 	 	 
	1.1 Definitions
	 	 	1	 
	1.2 Principles of Construction
	 	 	26	 
	 
	 	 	 	 
	II. GENERAL TERMS
	 	 	26	 
	 
	 	 	 	 
	2.1 Loan; Disbursement to Borrower
	 	 	26	 
	2.1.1 The Loan
	 	 	26	 
	2.1.2 Disbursement to Borrower
	 	 	26	 
	2.1.3 The Notes, Security Instrument and Loan Documents
	 	 	27	 
	2.1.4 Use of Proceeds
	 	 	27	 
	 
	 	 	 	 
	2.2 Interest; Loan Payments; Late Payment Charge
	 	 	27	 
	2.2.1 Payment of Principal and Interest
	 	 	27	 
	2.2.2 Method and Place of Payment
	 	 	27	 
	2.2.3 Late Payment Charge
	 	 	28	 
	2.2.4 Usury Savings
	 	 	28	 
	 
	 	 	 	 
	2.3 Prepayments
	 	 	28	 
	2.3.1 Prepayments
	 	 	28	 
	2.3.2 Prepayments After Event of Default; Application of Amounts Paid
	 	 	28	 
	2.3.3 Release of Property upon Repayment or Defeasance of Loan in Full
	 	 	29	 
	2.3.4 Release of Individual Properties
	 	 	29	 
	2.3.5 Defeasance
	 	 	30	 
	2.3.6 Substitution of Properties
	 	 	34	 
	2.3.7 Release of Outparcels
	 	 	39	 
	2.3.8 Excess Account Collateral
	 	 	39	 
	2.3.9 Reserve Requirements
	 	 	40	 
	 
	 	 	 	 
	2.4 Regulatory Change; Taxes
	 	 	40	 
	2.4.1 Increased Costs
	 	 	40	 
	2.4.2 Special Taxes
	 	 	40	 
	2.4.3 Other Taxes
	 	 	41	 
	2.4.4 Indemnity
	 	 	41	 
	2.4.5 Change of Office
	 	 	41	 
	2.4.6 Survival
	 	 	41	 






 


i









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	2.5 Conditions Precedent to Closing
	 	 	41	 
	2.5.1 Representations and Warranties; Compliance with Conditions
	 	 	41	 
	2.5.2 Delivery of Loan Documents; Title Policy; Reports; Leases
	 	 	41	 
	2.5.3 Related Documents
	 	 	43	 
	2.5.4 Delivery of Organizational Documents
	 	 	43	 
	2.5.5 Counsel Opinions
	 	 	43	 
	2.5.6 Annual Budget
	 	 	43	 
	2.5.7 Completion of Proceedings
	 	 	44	 
	2.5.8 Payments
	 	 	44	 
	2.5.9 Account Agreement
	 	 	44	 
	2.5.10 Master Lease SNDA
	 	 	44	 
	2.5.11 Reserved
	 	 	44	 
	2.5.12 Reserved
	 	 	44	 
	2.5.13 Independent Manager/Member Certificate
	 	 	44	 
	2.5.14 Transaction Costs
	 	 	44	 
	2.5.15 Material Adverse Effect
	 	 	44	 
	2.5.16 Insolvency
	 	 	44	 
	2.5.17 Leases
	 	 	44	 
	2.5.18 Master Lease; Master Lease SNDA
	 	 	44	 
	2.5.19 Tax Lot
	 	 	44	 
	2.5.20 Physical Conditions Reports
	 	 	45	 
	2.5.21 Appraisals
	 	 	45	 
	2.5.22 Financial Statements
	 	 	45	 
	2.5.23 Flood Certifications
	 	 	45	 
	2.5.24 Intercreditor Agreement
	 	 	45	 
	 
	 	 	 	 
	III. CASH MANAGEMENT
	 	 	45	 
	 
	 	 	 	 
	3.1 Cash Management
	 	 	45	 
	3.1.1 Establishment of Accounts
	 	 	45	 
	3.1.2 Pledge of Account Collateral
	 	 	46	 
	3.1.3 Maintenance of Collateral Accounts
	 	 	47	 
	3.1.4 Eligible Accounts
	 	 	47	 
	3.1.5 Deposits into Sub-Accounts
	 	 	48	 
	3.1.6 Monthly Funding of Sub-Accounts; Master Lease Rent
Shortfalls; Master Lease Variable Additional Rent Reserve;
Sub-Account Shortfalls
	 	 	48	 
	3.1.7 Required Payments from Sub-Accounts
	 	 	50	 
	3.1.8 Cash Management Bank
	 	 	50	 
	3.1.9 Borrower’s and Maryland Loan Guarantor’s Account
Representations, Warranties and Covenants
	 	 	51	 
	3.1.10 Account Collateral and Remedies
	 	 	51	 
	3.1.11 Transfers and Other Liens
	 	 	52	 
	3.1.12 Reasonable Care
	 	 	52	 
	3.1.13 Lender’s Liability
	 	 	52	 
	3.1.14 Continuing Security Interest
	 	 	53	 






 


ii









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	IV. REPRESENTATIONS AND WARRANTIES
	 	 	53	 
	 
	 	 	 	 
	4.1 Borrower Representations
	 	 	53	 
	4.1.1 Organization
	 	 	53	 
	4.1.2 Proceedings
	 	 	54	 
	4.1.3 No Conflicts
	 	 	54	 
	4.1.4 Litigation
	 	 	54	 
	4.1.5 Agreements
	 	 	55	 
	4.1.6 Title
	 	 	55	 
	4.1.7 No Bankruptcy Filing
	 	 	55	 
	4.1.8 Full and Accurate Disclosure
	 	 	56	 
	4.1.9 All Property
	 	 	56	 
	4.1.10 No Plan Assets
	 	 	56	 
	4.1.11 Compliance
	 	 	57	 
	4.1.12 Financial Information
	 	 	57	 
	4.1.13 Condemnation
	 	 	57	 
	4.1.14 Federal Reserve Regulations
	 	 	57	 
	4.1.15 Utilities and Public Access
	 	 	57	 
	4.1.16 Not a Foreign Person
	 	 	58	 
	4.1.17 Separate Lots
	 	 	58	 
	4.1.18 Subdivision
	 	 	58	 
	4.1.19 Enforceability
	 	 	58	 
	4.1.20 Assessments
	 	 	58	 
	4.1.21 Insurance
	 	 	58	 
	4.1.22 Use of Property
	 	 	58	 
	4.1.23 Certificate of Occupancy; Licenses
	 	 	58	 
	4.1.24 Flood Zone
	 	 	59	 
	4.1.25 Physical Condition
	 	 	59	 
	4.1.26 Boundaries
	 	 	59	 
	4.1.27 Leases and Subleases
	 	 	59	 
	4.1.28 Filing and Recording Taxes
	 	 	60	 
	4.1.29 Single Purpose Entity/Separateness
	 	 	60	 
	4.1.30 Illegal Activity
	 	 	60	 
	4.1.31 No Change in Facts or Circumstances; Disclosure
	 	 	60	 
	4.1.32 Tax Filings
	 	 	61	 
	4.1.33 Solvency/Fraudulent Conveyance
	 	 	61	 
	4.1.34 Investment Company Act
	 	 	61	 
	4.1.35 Labor
	 	 	61	 
	4.1.36 Brokers
	 	 	62	 
	4.1.37 No Other Debt
	 	 	62	 
	4.1.38 Taxpayer Identification Number
	 	 	62	 
	4.1.39 Compliance with Anti-Terrorism, Embargo and Anti-Money Laundering
Laws
	 	 	62	 
	4.1.40 Rights of First Refusal or First Offer to Lease or Purchase
	 	 	62	 






 


iii









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	4.2 Survival of Representations
	 	 	63	 
	 
	 	 	 	 
	4.3 Borrower’s or Maryland Loan Guarantor’s Knowledge
	 	 	63	 
	 
	 	 	 	 
	V. BORROWER AND MARYLAND LOAN GUARANTOR COVENANTS
	 	 	63	 
	 
	 	 	 	 
	5.1 Affirmative Covenants
	 	 	63	 
	5.1.1 Performance by Borrower and Maryland Loan Guarantor
	 	 	63	 
	5.1.2 Existence; Compliance with Legal Requirements; Insurance
	 	 	64	 
	5.1.3 Litigation
	 	 	64	 
	5.1.4 Single Purpose Entity
	 	 	64	 
	5.1.5 Consents
	 	 	65	 
	5.1.6 Access to Property
	 	 	66	 
	5.1.7 Notice of Default
	 	 	66	 
	5.1.8 Cooperate in Legal Proceedings
	 	 	66	 
	5.1.9 Insurance
	 	 	66	 
	5.1.10 Further Assurances; Severance of Notes and Mezzanine Loan
	 	 	66	 
	5.1.11 Mortgage Taxes
	 	 	68	 
	5.1.12 Business and Operations
	 	 	68	 
	5.1.13 Title to the Property
	 	 	68	 
	5.1.14 Costs of Enforcement
	 	 	69	 
	5.1.15 Estoppel Statements
	 	 	69	 
	5.1.16 Loan Proceeds
	 	 	69	 
	5.1.17 No Joint Assessment
	 	 	69	 
	5.1.18 No Further Encumbrances
	 	 	70	 
	5.1.19 Leases and Material Subleases
	 	 	70	 
	5.1.20 Management
	 	 	70	 
	5.1.21 Master Lease
	 	 	70	 
	 
	 	 	 	 
	5.2 Negative Covenants
	 	 	72	 
	5.2.1 Incur Debt
	 	 	72	 
	5.2.2 Encumbrances
	 	 	72	 
	5.2.3 Engage in Different Business
	 	 	72	 
	5.2.4 Make Advances
	 	 	72	 
	5.2.5 Partition
	 	 	72	 
	5.2.6 Commingle
	 	 	72	 
	5.2.7 Guarantee Obligations
	 	 	73	 
	5.2.8 Transfer Assets
	 	 	73	 
	5.2.9 Amend Organizational Documents
	 	 	73	 
	5.2.10 Dissolve
	 	 	73	 
	5.2.11 Bankruptcy
	 	 	73	 
	5.2.12 ERISA
	 	 	73	 
	5.2.13 Distributions
	 	 	73	 
	5.2.14 Management
	 	 	73	 
	5.2.15 Reserved
	 	 	74	 
	5.2.16 Modify Account Agreement
	 	 	74	 
	5.2.17 Zoning Reclassification
	 	 	74	 
	5.2.18 Change of Principal Place of Business
	 	 	74	 
	5.2.19 Debt Cancellation
	 	 	74	 
	5.2.20 Misapplication of Funds
	 	 	74	 
	5.2.21 Single Purpose Entity
	 	 	75	 






 


iv









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	VI. INSURANCE; CASUALTY; CONDEMNATION; RESTORATION
	 	 	75	 
	 
	 	 	 	 
	6.1 Insurance Coverage Requirements
	 	 	75	 
	6.1.1 Property Insurance
	 	 	75	 
	6.1.2 Liability Insurance
	 	 	75	 
	6.1.3 Workers’ Compensation Insurance
	 	 	75	 
	6.1.4 Business Interruption Insurance
	 	 	76	 
	6.1.5 Builder’s All-Risk Insurance
	 	 	76	 
	6.1.6 Boiler and Machinery Insurance
	 	 	76	 
	6.1.7 Flood Insurance and Earthquake Insurance
	 	 	76	 
	6.1.8 Terrorism Insurance
	 	 	77	 
	6.1.9 Storage Tank System Third Party Liability and Cleanup Insurance
	 	 	78	 
	6.1.10 Other Insurance
	 	 	78	 
	6.1.11 Ratings of Insurers
	 	 	78	 
	6.1.12 Form of Insurance Policies; Endorsements
	 	 	78	 
	6.1.13 Evidence of Insurance
	 	 	79	 
	6.1.14 Separate Insurance
	 	 	79	 
	6.1.15 Blanket Policies
	 	 	79	 
	 
	 	 	 	 
	6.2 Condemnation and Insurance Proceeds
	 	 	79	 
	6.2.1 Notification
	 	 	79	 
	6.2.2 Proceeds
	 	 	80	 
	6.2.3 Lender to Take Proceeds
	 	 	81	 
	6.2.4 Borrower to Restore
	 	 	82	 
	6.2.5 Disbursement of Proceeds
	 	 	83	 
	 
	 	 	 	 
	VII. IMPOSITIONS, OTHER CHARGES, LIENS AND OTHER ITEMS
	 	 	84	 
	 
	 	 	 	 
	7.1 Borrower or Maryland Loan Guarantor to Pay Impositions and Other Charges
	 	 	84	 
	 
	 	 	 	 
	7.2 No Liens
	 	 	84	 
	 
	 	 	 	 
	7.3 Contest
	 	 	85	 
	 
	 	 	 	 
	VIII. TRANSFERS, INDEBTEDNESS AND SUBORDINATE LIENS
	 	 	85	 
	 
	 	 	 	 
	8.1 General Restriction on Transfers and Debt
	 	 	85	 
	 
	 	 	 	 
	8.2 Sale of Building Equipment
	 	 	86	 
	 
	 	 	 	 
	8.3 Immaterial Transfers and Easements, etc.
	 	 	86	 
	 
	 	 	 	 
	8.4 Permitted Equity Transfers
	 	 	87	 






 


v









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	8.5 Deliveries to Lender
	 	 	88	 
	 
	 	 	 	 
	8.6 Loan Assumption
	 	 	88	 
	 
	 	 	 	 
	8.7 Leases and Subleases
	 	 	89	 
	8.7.1 Leasing Conditions
	 	 	89	 
	8.7.2 Delivery of New Sublease or Sublease Modification
	 	 	89	 
	8.7.3 Security Deposits
	 	 	89	 
	8.7.4 No Default Under Subleases
	 	 	89	 
	8.7.5 Subordination
	 	 	89	 
	8.7.6 Attornment
	 	 	90	 
	8.7.7 Non-Disturbance Agreements
	 	 	90	 
	 
	 	 	 	 
	IX. RESERVED
	 	 	90	 
	 
	 	 	 	 
	X. MAINTENANCE OF PROPERTY; ALTERATIONS
	 	 	90	 
	10.1 Maintenance of Property
	 	 	90	 
	10.2 Conditions to Alteration
	 	 	91	 
	10.3 Costs of Alteration
	 	 	91	 
	 
	 	 	 	 
	XI. BOOKS AND RECORDS, FINANCIAL STATEMENTS, REPORTS AND OTHER INFORMATION
	 	 	93	 
	 
	 	 	 	 
	11.1 Books and Records
	 	 	93	 
	11.2 Financial Statements
	 	 	93	 
	11.2.1 Quarterly Reports
	 	 	93	 
	11.2.2 Annual Reports
	 	 	94	 
	11.2.3 Capital Expenditures Summaries
	 	 	94	 
	11.2.4 Master Lease
	 	 	94	 
	11.2.5 Annual Budget
	 	 	94	 
	11.2.6 Other Information
	 	 	94	 
	 
	 	 	 	 
	XII. ENVIRONMENTAL MATTERS
	 	 	95	 
	 
	 	 	 	 
	12.1 Representations
	 	 	95	 
	12.2 Covenants
	 	 	95	 
	12.2.1 Compliance with Environmental Laws
	 	 	95	 
	12.3 Environmental Reports
	 	 	96	 
	12.4 Environmental Indemnification
	 	 	96	 
	12.5 Recourse Nature of Certain Indemnifications
	 	 	97	 






 


vi









 






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	XIII. RESERVED
	 	 	97	 
	 
	 	 	 	 
	XIV. SECURITIZATION
	 	 	97	 
	 
	 	 	 	 
	14.1 Sale of Notes and Securitization
	 	 	97	 
	14.2 Securitization Financial Statements
	 	 	98	 
	14.3 Securitization Indemnification
	 	 	98	 
	14.3.1 Disclosure Documents
	 	 	98	 
	14.3.2 Indemnification Certificate
	 	 	99	 
	 
	 	 	 	 
	XV. ASSIGNMENTS AND PARTICIPATIONS
	 	 	101	 
	15.1 Assignment and Acceptance
	 	 	101	 
	15.2 Effect of Assignment and Acceptance
	 	 	101	 
	15.3 Content
	 	 	101	 
	15.4 Register
	 	 	102	 
	15.5 Substitute Notes
	 	 	102	 
	15.6 Participations
	 	 	103	 
	15.7 Disclosure of Information
	 	 	103	 
	15.8 Security Interest in Favor of Federal Reserve Bank
	 	 	103	 
	 
	 	 	 	 
	XVI. RESERVE ACCOUNTS
	 	 	103	 
	 
	 	 	 	 
	16.1 Tax Reserve Account
	 	 	103	 
	16.2 Insurance Reserve Account
	 	 	104	 
	16.3 Structural Repair Reserve Account
	 	 	105	 
	16.4 Immediate Repair and Remediation Reserve Account
	 	 	106	 
	16.5 Master Lease Variable Additional Rent Reserve Account and LCR
Deterioration Reserve Account
	 	 	107	 
	 
	 	 	 	 
	XVII. DEFAULTS
	 	 	108	 
	 
	 	 	 	 
	17.1 Event of Default
	 	 	108	 
	17.2 Remedies
	 	 	111	 
	17.3 Remedies Cumulative; Waivers
	 	 	112	 
	17.4 Costs of Collection
	 	 	113	 
	 
	 	 	 	 
	XVIII. SPECIAL PROVISIONS
	 	 	113	 
	 
	 	 	 	 
	18.1 Exculpation
	 	 	113	 
	18.1.1 Exculpated Parties
	 	 	113	 
	18.1.2 Carveouts From Non-Recourse Limitations
	 	 	114	 






 


vii









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	XIX. MISCELLANEOUS
	 	 	116	 
	 
	 	 	 	 
	19.1 Survival
	 	 	116	 
	19.2 Lender’s Discretion
	 	 	116	 
	19.3 Governing Law
	 	 	116	 
	19.4 Modification, Waiver in Writing
	 	 	117	 
	19.5 Delay Not a Waiver
	 	 	117	 
	19.6 Notices
	 	 	118	 
	19.7 TRIAL BY JURY
	 	 	119	 
	19.8 Headings
	 	 	119	 
	19.9 Severability
	 	 	119	 
	19.10 Preferences
	 	 	119	 
	19.11 Waiver of Notice
	 	 	120	 
	19.12 Expenses; Indemnity
	 	 	120	 
	19.13 Exhibits and Schedules Incorporated
	 	 	122	 
	19.14 Offsets, Counterclaims and Defenses
	 	 	122	 
	19.15 Liability of Assignees of Lender
	 	 	122	 
	19.16 No Joint Venture or Partnership; No Third Party Beneficiaries
	 	 	122	 
	19.17 Publicity
	 	 	123	 
	19.18 Waiver of Marshalling of Assets
	 	 	123	 
	19.19 Waiver of Counterclaim and other Actions
	 	 	123	 
	19.20 Conflict; Construction of Documents; Reliance
	 	 	123	 
	19.21 Prior Agreements
	 	 	124	 
	19.22 Counterparts
	 	 	124	 






 


viii









 





EXHIBITS AND SCHEDULES




	 	 	 
	EXHIBIT A

	 	TITLE INSURANCE REQUIREMENTS, ENDORSEMENTS
AND AFFIRMATIVE COVERAGES
	EXHIBIT B

	 	SURVEY REQUIREMENTS
	EXHIBIT C

	 	SINGLE PURPOSE ENTITY PROVISIONS
	EXHIBIT D

	 	ENFORCEABILITY OPINION REQUIREMENTS
	EXHIBIT E

	 	INTENTIONALLY DELETED
	EXHIBIT F

	 	INTENTIONALLY DELETED
	EXHIBIT G

	 	INTENTIONALLY DELETED
	EXHIBIT H

	 	INTENTIONALLY DELETED
	EXHIBIT I

	 	INTENTIONALLY DELETED
	EXHIBIT J

	 	INTENTIONALLY DELETED
	EXHIBIT K

	 	BORROWER ORGANIZATIONAL STRUCTURE
	EXHIBIT L

	 	INTENTIONALLY DELETED
	EXHIBIT M

	 	FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
	EXHIBIT N

	 	FORM OF SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
	EXHIBIT O

	 	INTENTIONALLY DELETED
	EXHIBIT P

	 	FORM OF MASTER LEASE RENT PAYMENT DIRECTION
LETTER
	EXHIBIT Q

	 	INTENTIONALLY DELETED
	EXHIBIT R

	 	INTENTIONALLY DELETED
	EXHIBIT S

	 	INTENTIONALLY DELETED
	EXHIBIT T

	 	FORM OF INDEPENDENT MANAGER/MEMBER
CERTIFICATE
	 
	 	 
	SCHEDULE I

	 	ALLOCATED LOAN AMOUNTS
	SCHEDULE II

	 	GEOGRAPHIC QUADRANTS
	SCHEDULE III

	 	IMMEDIATE REPAIRS AND REMEDIATION
	SCHEDULE IV

	 	LEASES
	SCHEDULE V

	 	INTENTIONALLY DELETED
	SCHEDULE VI

	 	LITIGATION SCHEDULE
	SCHEDULE VII

	 	OUTPARCEL LEGAL DESCRIPTIONS
	SCHEDULE VIII

	 	BORROWER TAXPAYER IDENTIFICATION NUMBERS







 


ix









 







LOAN AND SECURITY AGREEMENT




THIS LOAN AND SECURITY AGREEMENT, dated as of June 9, 2006 (as amended, restated, replaced,
supplemented or otherwise modified from time to time, this “Agreement”), by and among ABP
MD (BALTIMORE) LLC, a Delaware limited liability company (“Maryland Loan Guarantor”), the
borrowers signatory hereto (each an “Individual Borrower” and collectively,
“Borrower”) having an office c/o BlueLinx Holdings Inc., 4300 Wildwood Parkway, Atlanta,
Georgia 30339, and GERMAN AMERICAN CAPITAL CORPORATION, a Maryland corporation, on behalf of the
holders of the Notes, having an address at 60 Wall Street, New York, New York 10005 (together with
its successors and assigns, “Lender”).



RECITALS:





WHEREAS, Borrower desires to obtain the Loan (as hereinafter defined) from Lender;



WHEREAS, Lender is willing to make the Loan to Borrower, subject to and in accordance with the
terms of this Agreement and the other Loan Documents (as hereinafter defined).



NOW, THEREFORE, in consideration of the making of the Loan by Lender and the covenants,
agreements, representations and warranties set forth in this Agreement, the parties hereto hereby
covenant, agree, represent and warrant as follows:




I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION



1.1 Definitions. For all purposes of this Agreement, except as otherwise expressly
required or unless the context clearly indicates a contrary intent:



“Account Agreement” shall mean the Account and Control Agreement, dated the date
hereof, among Lender, Borrower (other than Maryland Borrower), Maryland Loan Guarantor and Cash
Management Bank.




“Account Collateral” shall have the meaning set forth in Section 3.1.2.



“Additional Non-Consolidation Opinion” shall have the meaning set forth in Section
4.1.29(b).



“Affiliate” shall mean, with respect to any specified Person, any other Person that
(i) directly or indirectly Controls, is Controlled by or under direct or indirect Common Control
with such specified Person, (ii) is a general partner or managing member of such specified Person,
or (iii) is an officer or director of such specified Person.



 


 









 





“Aggregate Appraised Value” shall mean the sum of (a) the aggregate Appraised Values
(as indicated in the Appraisals delivered by Borrower pursuant to Section 2.5.21) of all
Individual Properties which were subject to the Lien of the Security Instrument on the Closing
Date and remain subject to the Lien of the Security Instrument on the date such determination is
made and (b) the aggregate Appraised Value of the Substitute Properties, as reflected in the
Appraisals delivered in accordance with Section 2.3.6(c).



“Agreement” shall mean this Agreement, as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time.



“Allocated Loan Amount” shall mean with respect to each Individual Property, the
designated allocated portion of the Loan applicable to such Individual Property that is set forth
on Schedule I attached hereto. For the avoidance of doubt, no portion of the Loan shall be
allocated to any of the Outparcels.




“ALTA” shall mean American Land Title Association, or any successor thereto.




“Alteration” shall have the meaning set forth in Section 10.2.



“Annual Budget” shall mean the operating budget for the Property prepared by or on
behalf of Borrower for the applicable Fiscal Year or other period setting forth, in reasonable
detail, Borrower’s or Guarantor’s good faith estimates of the anticipated results of operation of
the Property, including, but not limited to, revenue from all sources, Master Lease Variable
Additional Rent, Master Lease Recurrent Additional Rent and Capital Expenditures.



“Appraisals” shall mean FIRREA appraisals conducted by CB Richard Ellis (or another
Independent appraiser reasonably acceptable to Lender) which establish the Appraised Value of each
Individual Property (or, as applicable, each Substitute Property).



“Appraised Value” shall mean, for an Individual Property or, as applicable, a
Substitute Property, the value of such Individual Property or Substitute Property as determined by
the Appraisal for such Individual Property or Substitute Property.




“Approved Bank” shall have the meaning provided in the Account Agreement.



“Architect” shall mean an architect, engineer or construction consultant selected by
Borrower, licensed to practice in the relevant State, having at least five (5) years of
architectural experience and which is selected by an Individual Borrower and reasonably acceptable
to Lender.



“Assignment and Acceptance” shall mean an assignment and acceptance entered into by
Lender and an assignee, and accepted by Lender in accordance with Article XV and in
substantially the form of Exhibit M or such other form customarily used by Lender in
connection with the participation or syndication of mortgage loans at the time of such assignment.



“Assignment of Leases” shall mean, with respect to each Individual Property, that
certain first priority Assignment of Master Lease, Leases, Rents and Security Deposits, dated as of
the date hereof, from each Individual Borrower (or in the case of the Maryland Property, the
Maryland Loan Guarantor), as assignor, to Lender, as assignee, assigning to Lender all of such
Individual Borrower’s (or Maryland Loan Guarantor’s) interest in and to the Master Lease, the
Leases and the Rents of such Individual Property, as the same may be amended, restated,
replaced, supplemented or otherwise modified from time to time.


 


2









 





“Bankruptcy Code” shall mean Title 11, U.S.C.A., as amended from time to time and any
successor statute thereto.




“Blanket Policy” shall have the meaning provided in Section 6.1.14.




“Borrower” shall have the meaning set forth in the first paragraph of this Agreement.



“Borrower’s Account” shall mean an account or accounts maintained by Borrower for its
own account at such bank and with such account number as may be designated in writing by Borrower
to Lender and Cash Management Bank from time to time.




“Broker” shall mean CB Richard Ellis/L.J. Melody.




“Building Equipment” shall have the meaning set forth in the Security Instrument.



“Business Day” shall mean any day other than a Saturday, Sunday or any other day on
which national banks in New York are not open for business.



“Capital Expenditures” shall mean, for any period, the amount expended for items
capitalized under GAAP, including expenditures for building improvements or major repairs, leasing
commissions and tenant improvements.




“Cash” shall mean the legal tender of the United States of America.



“Cash and Cash Equivalents” shall mean any one or a combination of the following: (i)
Cash, and (ii) U.S. Government Obligations.



“Cash Management Bank” shall mean Wachovia Bank, National Association or any successor
Approved Bank acting as Cash Management Bank under the Account Agreement or other financial
institution approved by the Lender and, if a Securitization has occurred, the Rating Agencies.



“Casualty Amount” shall mean ten percent (10%) of the Allocated Loan Amount of the
affected Individual Property.



“Casualty/Condemnation Property Release” shall mean any Property Release obtained in
connection with a Proceeds Prepayment or other principal prepayment made pursuant to Section
6.2.3 or Section 4(b) of the Note.



“Close Affiliate” shall mean, with respect to any Person (the “First Person”),
any other Person (each, a “Second Person”) which is an Affiliate of the First Person and in
respect of which any of the following are true: (a) the Second Person owns, directly or
indirectly, at least seventy-five percent (75%) of all of the legal, beneficial and/or equitable
interest in such First Person, (b) the First Person owns, directly or indirectly, at least
seventy-five percent (75%) of
all of the legal, beneficial and/or equitable interest in such Second Person, or (c) a third
(3rd) Person owns, directly or indirectly, at least seventy-five percent (75%) of all of
the legal, beneficial and/or equitable interest in both the First Person and the Second Person.


 


3









 





“Closing Date” shall mean the date of this Agreement set forth in the first paragraph
hereof.




“Closing Date LCR Ratio” shall mean 5.18x.




“Closing Date LTV Ratio” shall mean 79.22%.



“Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further
amended from time to time, and any successor statutes thereto, and applicable U.S. Department of
Treasury regulations issued pursuant thereto in temporary or final form.




“Collateral Accounts” shall have the meaning set forth in Section 3.1.1.




“Completion” shall have the meaning set forth in Section 16.4.



“Control” shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise, and the terms “Controlled,” “Controlling” and
“Common Control” shall have correlative meanings.




“Cut-Off Date” shall have the meaning set forth in Section 6.2.3(a).




“DBS” shall have the meaning set forth in Section 14.3.2(b).



“Debt” shall mean, with respect to any Person at any time, (a) indebtedness or
liability of such Person for borrowed money whether or not evidenced by bonds, debentures, notes or
other instruments, or for the deferred purchase price of property or services; (b) obligations of
such Person as lessee under leases which should have been or should be, in accordance with GAAP,
recorded as capital leases; (c) obligations issued for, or liabilities incurred on the account of,
such Person; (d) obligations or liabilities of such Person arising under letters of credit, credit
facilities or other acceptance facilities; (e) obligations of such Person under any guarantees or
other agreement to become secondarily liable for any obligation of any other Person, endorsements
(other than for collection or deposit in the ordinary course of business) and other contingent
obligations to provide funds for payment, to supply funds to invest in any Person or otherwise to
assure a creditor against loss; (f) subject to Section 7.3, obligations of such Person
secured by any Lien on any property of such Person; or (g) obligations of such Person under any
interest rate or currency exchange agreement.



“Debt Service” shall mean, with respect to any particular period of time, scheduled
interest and/or principal payments under the Notes.



“Debt Service Reserve Account” shall have the meaning set forth in Section
3.1.1.


 


4









 





“Default” shall mean the occurrence of any event hereunder or under any other Loan
Document which, but for the giving of notice or passage of time, or both, would be an Event of
Default.




“Default Rate” shall have the meaning set forth in the Note.



“Defeasance Collateral” shall mean obligations or securities that (a) are not subject
to prepayment, call or early redemption, (b) provide for interest at a fixed rate, (c) have a
principal amount due at maturity that cannot vary or change, (d) are rated “AAA” or better by S&P
and Aaa or better by Moody’s (or, if not rated by S&P, are eligible under S&P’s published criteria
in paragraphs 1, 2 or 3 of its Eligible Investment Criteria for “AAA” Rated Structured
Transactions), and (e) constitute “government securities” as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80a-1).




“Defeasance Date” shall have the meaning set forth in Section 2.3.5(a).



“Defeasance Deposit” shall mean an amount equal to the Release Price for the
applicable Individual Property or Individual Properties subject to the Defeasance Event plus any
costs and expenses incurred or to be incurred in the purchase of Defeasance Collateral necessary to
meet the Scheduled Defeasance Payments.




“Defeasance Event” shall have the meaning set forth in Section 2.3.5(a).




“Defeasance Lockout Period” shall have the meaning set forth in the Note.




“Deficiency” shall have the meaning set forth in Section 6.2.4(b).




“Disclosure Documents” shall have the meaning set forth in Section 14.3.1.



“Disqualified Transferee” shall mean any proposed transferee that, (i) has (within the
past ten (10) years) defaulted, or is now in default, beyond any applicable cure period, of its
material obligations, under any written agreement with Lender, any affiliate of Lender or any
financial institution; (ii) has a principal that has been convicted in a criminal proceeding for a
felony or a crime involving moral turpitude or that is an organized crime figure or is reputed (as
determined by Lender in its sole discretion) to have substantial business or other affiliations
with an organized crime figure; (iii) has at any time filed a voluntary petition under the
Bankruptcy Code or any other federal or state bankruptcy or insolvency law; (iv) as to which an
involuntary petition has at any time been filed under the Bankruptcy Code or any other federal or
state bankruptcy or insolvency law; (v) has at any time filed an answer consenting to or
acquiescing in any involuntary petition filed against it by any other person under the Bankruptcy
Code or any other federal or state bankruptcy or insolvency law; (vi) has at any time consented to
or acquiesced in or joined in an application for the appointment of a custodian, receiver, trustee
or examiner for itself or any of its property; (vii) has at any time made an assignment for the
benefit of creditors, or has at any time admitted its insolvency or inability to pay its debts as
they become due; or (viii) has been found by a court of competent jurisdiction or other
governmental authority in a comparable proceeding to have violated any federal or state securities
laws or regulations promulgated thereunder.


 


5









 





“EBITDAR” shall mean earnings from operations before interest expense/income, federal,
state and local income taxes, depreciation and amortization, any rental expense on real property,
restructuring costs, unusual severance costs, debt issuance or stock offering costs, legal loss
reserve, casualty losses and/or related reserves, stock option expense and merger and acquisition
related expenses.



“Eligible Account” shall mean (i) a segregated trust account or accounts maintained
with the corporate trust department of a federal depository institution or state-chartered
depository institution subject to regulations regarding fiduciary funds on deposit such as or
similar to Title 12 of the Code of Federal Regulations Section 9.10(b) which, in either case, has
corporate trust powers, acting in its fiduciary capacity or (ii) a segregated account maintained at
an Approved Bank. An Eligible Account will not be evidenced by a certificate of deposit, passbook
or other instrument.



“Environmental Certificate” shall have the meaning set forth in Section
12.2.1.



“Environmental Claim” shall mean any claim, action, cause of action, investigation or
written notice by any Person alleging potential liability (including potential liability for
investigatory costs, cleanup costs, natural resource damages, property damages, personal injuries
or penalties) arising out of, based upon or resulting from (a) the presence or release into the
environment of any Hazardous Materials from or at the Property, or (b) the violation, or alleged
violation, of any Environmental Law relating to the Property.




“Environmental Event” shall have the meaning set forth in Section 12.2.1.



“Environmental Indemnity” shall mean the Environmental Indemnity, dated the date
hereof, made by Guarantor in favor of Lender.



“Environmental Insurance Policy” shall mean any environmental insurance policy
maintained by or for the benefit of Borrower with respect to the Property on the date hereof and
any environmental insurance policy hereafter obtained and maintained with respect to the Property
and acceptable to Lender.




“Environmental Law” shall have the meaning provided in the Environmental Indemnity.




“Environmental Reports” shall have the meaning set forth in Section 12.1.



“ERISA” shall mean the United States Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and the rulings issued thereunder.




“Event of Default” shall have the meaning set forth in Section 17.1(a).




“Excess Account Collateral” shall have the meaning set forth in Section 2.3.8.



“Excess Cash Flow” shall have the meaning set forth in Section 3.1.6.


 


6









 






“Exchange Act” shall have the meaning set forth in Section 14.3.1.



“Excluded Personal Property” shall mean all personal property of the Master Lessee or
any other Tenants under Leases; provided, however, that Excluded Personal Property
shall not include walls or ceilings or any items that constitute fixtures (specifically including,
but not limited to plumbing and electrical fixtures, heating, ventilation and air conditioning,
wall and floor coverings, elevators and escalators). Excluded Personal Property shall include,
without limitation, any equipment attached to or installed at an Individual Property which is
unique to and used to further the business of Master Lessee or such Tenants at such Individual
Property, including, but not limited to, steel racking, dust collection systems, generators, order
pickers and other similar items. For purposes of this definition, the terms “equipment” and
“fixtures” shall have the meaning set forth in the Uniform Commercial Code in effect in the State
of New York.




“Exculpated Parties” shall have the meaning set forth in Section 18.1.1.



“Excusable Delay” shall mean a delay solely due to acts of God, governmental
restrictions, regulations or controls, stays, judgments, orders, decrees, enemy or hostile
governmental actions, terrorist acts, civil commotion, fire, casualty, strikes, work stoppages,
shortages of labor or materials or other causes beyond the reasonable control of Borrower, but
Borrower’s lack of funds in and of itself shall not be deemed a cause beyond the control of
Borrower.



“Fiscal Year” shall mean the fifty-two (52) or fifty-three (53) week period ending on
the Saturday immediately preceding the last day of each calendar year of the term of the Loan or
the portion of any such period falling within the term of the Loan in the event that such a period
occurs partially before or after, or partially during, the term of the Loan.




“Fiscal Quarter” shall mean each quarter within a Fiscal Year in accordance with GAAP.




“Fitch” shall mean Fitch Ratings Inc.



“GAAP” shall mean the generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and authority within the
accounting profession), or in such other statements by such entity as may be in general use by
significant segments of the U.S. accounting profession, to the extent such principles are
applicable to the facts and circumstances on the date of determination.



“General Release Conditions” shall have the meaning set forth in Section
2.3.4.



“Geographic Quadrant” shall mean any geographic quadrant identified on Schedule
II attached hereto.



“Governmental Authority” shall mean any court, board, agency, commission, office or
other authority of any nature whatsoever for any governmental unit (federal, state, county,
district, municipal, city or otherwise) whether now or hereafter in existence.


 


7









 






“Guarantor” shall mean BlueLinx Holdings Inc., a Delaware corporation.




“Hazardous Materials” shall have the meaning provided in the Environmental Indemnity.




“Holding Account” shall have the meaning set forth in Section 3.1.1.



“Immediate Repairs and Remediation Completion Deadline” shall have the meaning set
forth in Section 16.4.



“Immediate Repair and Remediation Reserve Account” shall have the meaning set forth in
Section 3.1.1.



“Immediate Repairs and Remediation” shall mean, collectively, the immediate repairs
and environmental remediation required to be made to the Property (other than immediate repairs
required to be made to the portion of the Improvements that constitutes shed space) described in
Schedule III attached hereto.



“Impositions” shall mean all taxes (including all ad valorem, sales (including those
imposed on lease rentals), use, single business, gross receipts, value added, intangible
transaction, privilege or license or similar taxes), governmental assessments (including all
assessments for public improvements or benefits, whether or not commenced or completed prior to the
date hereof and whether or not commenced or completed within the term of this Agreement), water,
sewer or other rents and charges, excises, levies, fees (including license, permit, inspection,
authorization and similar fees), and all other governmental charges, in each case whether general
or special, ordinary or extraordinary, or foreseen or unforeseen, of every character in respect of
the Property and/or any Rents (including all interest and penalties thereon), which at any time
prior to, during or in respect of the term hereof may be assessed or imposed on or in respect of or
be a Lien upon (a) Borrower or Maryland Loan Guarantor (including all franchise or other taxes
imposed on Borrower or Maryland Loan Guarantor for the privilege of doing business in the
jurisdiction in which the Property is located), (b) the Property, or any other collateral delivered
or pledged to Lender in connection with the Loan, or any part thereof, or any Rents therefrom or
any estate, right, title or interest therein, or (c) any occupancy, operation, use or possession
of, or sales from, or activity conducted on, or in connection with the Property or the leasing or
use of all or any part thereof by Borrower or Maryland Loan Guarantor. Nothing contained in this
Agreement shall be construed to require Borrower or Maryland Loan Guarantor to pay any tax,
assessment, levy or charge imposed on (i) any Tenant occupying any portion of the Property or (ii)
Lender in the nature of a capital levy, estate, inheritance, succession, income or net revenue tax.




“Improvements” shall have the meaning set forth in the Security Instrument.




“Increased Costs” shall have the meaning set forth in Section 2.4.1.



“Indebtedness” shall mean, at any given time, the Principal Amount, together with all
accrued and unpaid interest thereon and all other obligations and liabilities due or to become due
to Lender pursuant hereto, under the Notes or in accordance with the other Loan Documents
and all other amounts, sums and expenses paid by or payable to Lender hereunder or pursuant to
the Notes or the other Loan Documents.


 


8









 






“Indemnified Parties” shall have the meaning set forth in Section 19.12(b).



“Independent” shall mean, when used with respect to any Person, a Person who: (i)
does not have any direct financial interest or any material indirect financial interest in any
Borrower or in any Affiliate of any Borrower, (ii) is not connected with any Borrower or any
Affiliate of any Borrower as an officer, employee, promoter, underwriter, trustee, partner, member,
manager, creditor, director, supplier, customer or person performing similar functions and (iii) is
not a member of the immediate family of a Person defined in clause (i) or (ii) above.



“Independent Accountant” shall mean a firm of nationally recognized, certified public
accountants which is Independent and which is selected by Borrower and reasonably acceptable to
Lender. Lender acknowledges that Ernst & Young LLP constitutes an approved Independent Accountant.



“Independent Architect” shall mean an architect, engineer or construction consultant
selected by Borrower which is Independent, licensed to practice in the State (if an architect), has
at least five (5) years of applicable experience and which is reasonably acceptable to Lender.
Lender acknowledges that, for purposes of the Physical Condition Reports, ATC Associates, Inc. and
Land America Assessment Corp. are each an approved Independent Architect.



“Independent Director,” “Independent Manager,” or “Independent Member”
shall mean a Person who is not and will not be while serving and has never been (i) a member (other
than an Independent Member), manager (other than an Independent Manager), director, (other than an
Independent Director), employee, attorney, or counsel of Borrower or its Affiliates, (ii) a
customer, supplier or other Person who derives more than one percent (1%) of its purchases or
revenues from its activities with Borrower or its Affiliates, (iii) a direct or indirect legal or
beneficial owner in any entity referred to in clause (i) or (ii) above or any of its Affiliates,
(iv) a member of the immediate family of any member, manager, employee, attorney, customer,
supplier or other Person referred to in clause (i), (ii) or (iii) above, or (v) a person
Controlling or under the common Control of anyone listed in clauses (i) through (iv) above. A
Person that otherwise satisfies the foregoing shall not be disqualified from serving as an
Independent Director or Independent Manager or Independent Member if such individual is at the time
of initial appointment, or at any time while serving as such, is an Independent Director or
Independent Manager or Independent Member, as applicable, of a Single Purpose Entity affiliated
with Borrower.




“Individual Parcel” shall have the meaning set forth in the Security Instrument.



“Individual Borrower” shall have the meaning set forth in the first paragraph of this
Agreement.



“Individual Property” shall have the meaning set forth in the Security Instrument.


 


9









 





“Insurance Requirements” shall mean, collectively, (i) all material terms of any
insurance policy required pursuant to this Agreement and (ii) all material regulations and
then-current standards applicable to or affecting the Property or any part thereof or any use or
condition thereof.




“Insurance Reserve Account” shall have the meaning set forth in Section 3.1.1.




“Insurance Reserve Amount” shall have the meaning set forth in Section 16.2.




“Intangible” shall have the meaning set forth in the Security Instrument.



“Intercreditor Agreement” shall mean that certain Mortgagee Agreement between
Wachovia, as agent for the lenders under the Revolving Loan, and Lender and Wachovia, as holders of
the Notes.




“Interest Period” shall have the meaning set forth in the Notes.




“Interest Rate” shall have the meaning set forth in the Notes.



“Key Properties” shall mean, collectively, (i) any Individual Property which contains
greater than 200,000 square feet of main distribution building space and (ii) the Individual
Property located in Englewood, Colorado and containing 68,721 square feet of space, which
Individual Property is used by the Borrower for office purposes.




“Land” shall have the meaning set forth in the Security Instrument.




“Late Payment Charge” shall have the meaning set forth in Section 2.2.3.



“Lease” shall mean any lease (including the Master Lease), sublease or subsublease,
letting, license, concession or other agreement (whether written or oral and whether now or
hereafter in effect), pursuant to which any Person is granted a possessory interest in, or right to
use or occupy all or any portion of any space in any Individual Property, and every modification,
amendment or other agreement relating to such lease, sublease, subsublease, or other agreement
entered into in connection with such lease, sublease, subsublease, or other agreement and every
guarantee of the performance and observance of the covenants, conditions and agreements to be
performed and observed by the other party thereto. Notwithstanding the foregoing, the term “Lease”
shall exclude all of the Subleases at all times prior to a termination of the Master Lease.



“LCR” shall mean a ratio, as determined by Lender, in which: (i) the numerator is
Master Lessee’s EBITDAR, applied consistently, as stated on Master Lessee’s four (4) most recent
quarterly financial statements delivered to Lender by Borrower or Master Lessee pursuant to
Section 11.2.1, for the trailing twelve (12) month period immediately prior to the
applicable calculation date; and (ii) the denominator is Master Lease Base Rent for the trailing
twelve (12) month period immediately prior to the applicable calculation date (and, in the event
that the calculation date occurs prior to the first anniversary of the date of the Master Lease,
Master Lease Base Rent applicable to any month prior to the date of the Master Lease shall be
deemed to be equal to one-twelfth (1/12) of the Master Lease Base Rent payable during the first year
of the term of the Master Lease).  


 


10









 





“LCR Deterioration Reserve Account” shall have the meaning set forth in Section
3.1.1.



“LCR Test” shall mean the test performed by Lender on a trailing four (4) Fiscal
Quarter basis pursuant to the terms of Section 16.5 hereof following the end of each Fiscal
Quarter after the Closing Date to determine whether a Low LCR Cash Sweep Period has occurred and is
continuing.



“Legal Requirements” shall mean all present and future laws, statutes, codes,
ordinances, orders, judgments, decrees, injunctions, rules, regulations and requirements, and
irrespective of the nature of the work to be done, of every Governmental Authority including,
without limitation, Environmental Laws and all covenants, restrictions and conditions now or
hereafter of record which may be applicable to Borrower, Maryland Loan Guarantor or to the Property
and the Improvements and the Building Equipment thereon, or to the use, manner of use, occupancy,
possession, operation, maintenance, alteration, repair or reconstruction of the Property and the
Improvements and the Building Equipment thereon, including, without limitation, building and zoning
codes and ordinances and laws relating to handicapped accessibility.




“Lender” shall have the meaning set forth in the first paragraph of this Agreement.



“Lender’s Consultant” shall mean an environmental and engineering consulting firm
selected by Lender and reasonably acceptable to Borrower having experience (i) conducting
environmental and engineering assessments for properties similar to the Property and (ii) preparing
and supervising remediation plans for properties similar to the Property.




“Lender Group” shall have the meaning set forth in Section 14.3.2(b).



“Letter of Credit” shall mean an irrevocable, unconditional, transferable, clean sight
draft letter of credit (either an evergreen letter of credit or one which does not expire until at
least sixty (60) days after the Maturity Date (the “LC Expiration Date”)), in favor of
Lender and entitling Lender to draw thereon in New York, New York, based solely on delivery or a
sight draft containing a statement executed by an officer or authorized signatory of Lender and
issued by an Approved Bank. If at any time (a) the institution issuing any such Letter of Credit
shall cease to be an Approved Bank or (b) the Letter of Credit is due to expire prior to the LC
Expiration Date, Lender shall have the right immediately to draw down the same in full and hold the
proceeds thereof in accordance with the provisions of this Agreement, unless Borrower shall deliver
a replacement Letter of Credit from an Approved Bank within (i) as to (a) above, thirty (30) days
after Lender delivers written notice to Borrower that the institution issuing the Letter of Credit
has ceased to be an Approved Bank or (ii) as to (b) above, at least ten (10) Business Days prior to
the expiration date of said Letter of Credit.




“Liabilities” shall have the meaning set forth in Section 14.3.2(b).



“License” shall have the meaning set forth in Section 4.1.23.


 


11









 





“Lien” shall mean any mortgage, deed of trust, lien, pledge, hypothecation,
assignment, security interest, or any other encumbrance or charge on or affecting Borrower,
Maryland Loan Guarantor, the Property, any portion thereof or any interest therein, including,
without limitation, any conditional sale or other title retention agreement, any financing lease
having substantially the same economic effect as any of the foregoing, the filing of any financing
statement, and the filing of mechanic’s, materialmen’s and other similar liens and encumbrances,
excluding any such items solely affecting the Excluded Personal Property.



“Loan” shall mean the loan in the amount of the Loan Amount made by Lender to Borrower
pursuant to this Agreement.



“Loan Amount” shall mean the original principal amount of the Loan equal to
$295,000,000.



“Loan Documents” shall mean, collectively, this Agreement, the Notes, the Security
Instrument, the Assignment of Leases, the Environmental Indemnity, the Master Lease, the Master
Lease SNDA, the Account Agreement, the Recourse Guaranty, the Maryland Loan Guaranty and all other
documents executed and/or delivered by Borrower, Maryland Loan Guarantor, Master Lessee or
Guarantor, as applicable, to Lender in connection with the Loan or in connection with any
Substitution, including any opinion certificates or other certifications or representations
delivered by or on behalf of Borrower or any Affiliate of Borrower to Lender.



“Low LCR Cash Sweep Period” shall mean any period (a) commencing on the Payment Date
following the conclusion of any two (2) consecutive Fiscal Quarters for which the LCR is less than
2.50:1.00, as determined by an LCR Test in accordance with Section 16.5 hereof, and (ii)
ending on the day immediately preceding the Payment Date following the conclusion of any two (2)
consecutive Fiscal Quarters for which the LCR equals or exceeds 2.50:1.00, as determined by an LCR
Test in accordance with Section 16.5 hereof.



“LTV Ratio” shall mean the ratio, expressed as a percentage, of the Principal Amount,
as of the date of determination, to the Aggregate Appraised Value, as of the date of determination.



“Maryland Borrower” shall mean ABP MD (Baltimore) Subsidiary LLC, a Delaware limited
liability company and a wholly owned subsidiary of the Maryland Loan Guarantor.



“Maryland Loan Guarantor” shall have the meaning provided in the first paragraph
hereof.



“Maryland Loan Guaranty” shall mean that certain guaranty delivered by Maryland Loan
Guarantor in favor of Lender.




“Maryland Property” shall mean the Individual Property located in Maryland.



“Master Lease” shall mean that certain Amended and Restated Master Lease Agreement for
the Individual Properties by and between each Individual Borrower (or in the case
of the Maryland Property, the Maryland Loan Guarantor), as lessor, and Master Lessee, as
lessee, dated as of the date hereof, as more particularly described in Section 5.1.23.


 


12









 





“Master Lease Base Rent” shall mean monthly payments under the Master Lease of
scheduled base rent.



“Master Lease Recurrent Additional Rent” shall mean monthly payments under the Master
Lease of additional rent for scheduled pass-through expenses, including, without limitation, taxes
and insurance.



“Master Lease Rent” shall mean, collectively, the Master Lease Scheduled Rent and the
Master Lease Variable Additional Rent.



“Master Lease Rent Payment Direction Letter” shall mean a letter in the form of
Exhibit P pursuant to which Borrower (or in the case of the Maryland Property, the Maryland Loan
Guarantor) instructs Master Lessee to make payments of Master Lease Scheduled Rent and, during the
continuance of an Event of Default and during a Low LCR Cash Sweep Period, Master Lease Variable
Additional Rent directly to the Holding Account as more particularly set forth in Section
3.1.9(a).



“Master Lease Rent Shortfall” shall mean a shortfall in the Holding Account with
respect to all or any portion of the Master Lease Rent required to be deposited therein by Master
Lessee pursuant to the Master Lease Rent Payment Direction Letter.



“Master Lease Scheduled Rent” shall mean, collectively, the Master Lease Base Rent and
the Master Lease Recurrent Additional Rent.



“Master Lease SNDA” shall mean that certain Subordination, Non-Disturbance and
Attornment agreement among Borrower (or in the case of the Maryland Property, the Maryland Loan
Guarantor), Master Lessee and Lender dated of even date herewith.



“Master Lease Variable Additional Rent” shall mean with respect to any month, payments
payable by the Master Lessee under the Master Lease of variable operating and occupancy expenses in
such month, including, without limitation, common area maintenance expenses, but excluding Master
Lease Recurrent Additional Rent.




“Master Lessee” shall mean BlueLinx Corporation, a Georgia corporation.



“Master Lessee Officer’s Certificate” shall mean a certificate executed by an
authorized signatory of Master Lessee that is familiar with the financial condition of Master
Lessee and the operation of the Property.



“Material Adverse Effect” shall mean any event or condition that has a material
adverse effect on (i) the Property taken as a whole, (ii) the use, operation, or value of any Key
Property or the use, operation or value of the Property taken as a whole, (iii) the business,
profits, operations or financial condition of Borrower or the Maryland Loan Guarantor, (iv) the
ability of Maryland Loan Guarantor to satisfy any of Maryland Loan Guarantor’s obligations under
the Loan Documents or (v) the ability of Borrower to repay the principal and/or interest of the
Loan as it becomes due or to satisfy any of Borrower’s obligations under the Loan Documents.


 


13









 





“Material Alteration” shall mean any Alteration which, when aggregated with all
related Alterations (other than decorative work such as painting, wall papering and carpeting and
the replacement of fixtures, furnishings and equipment to the extent being of a routine and
recurring nature and performed in the ordinary course of business) constituting a single project,
is estimated to cost in excess of forty percent (40%) of the Allocated Loan Amount for the
Individual Property to which such Alteration is to be made; provided, however, that
the term “Material Alteration” shall not include Alterations being undertaken at the sole
cost and expense of (a) the Master Lessee pursuant to the Master Lease so long as any security
required for any such material alteration under the Master Lease is deposited with Lender (or any
related guaranty permitted hereunder in lieu of such deposit runs to the benefit of Lender and is
delivered to Lender) or (b) a Tenant pursuant to a Lease.



“Material Sublease” shall mean, during any Low LCR Cash Sweep Period, any Sublease to
a single Tenant covering more than 50,000 rentable square feet at any Individual Property.




“Maturity Date” shall have the meaning set forth in the Notes.




“Maturity Date Payment” shall have the meaning set forth in the Notes.



“Maximum Legal Rate” shall mean the maximum non-usurious interest rate, if any, that
at any time or from time to time may be contracted for, taken, reserved, charged or received on the
indebtedness evidenced by the Notes and as provided for herein or the other Loan Documents, under
the laws of such state or states whose laws are held by any court of competent jurisdiction to
govern the interest rate provisions of the Loan.




“Mezzanine Borrower” shall have the meaning set forth in Section 5.1.11.




“Mezzanine Loan” shall have the meaning set forth in Section 5.1.11.




“Mezzanine Loan Documents” shall have the meaning set forth in Section 5.1.11.



“Monetary Default” shall mean a Default (i) that can be cured with the payment of
money or (ii) arising pursuant to Section 17.1(a)(vi) or (vii).




“Monthly Debt Service Payment Amount” shall have the meaning set forth in the Notes.



“Monthly Insurance Reserve Amount” shall have the meaning set forth in Section
16.2.



“Monthly Structural Repair Reserve Amount” shall mean an amount determined by Lender
equal to one-twelfth (1/12) of the product of (i) $0.05 and (ii) the aggregate square footage of
the portion of the Improvements that constitutes distribution center space that is subject to a
Sublease; provided, however, that in the event that, at the time of determination,
less than ten percent (10%) the aggregate net rentable square footage of the Improvements is
subject to Subleases, the Monthly Structural Repair Reserve Amount shall be $0.00.


 


14









 






“Monthly Tax Reserve Amount” shall have the meaning set forth in Section 16.1.




“Moody’s” shall mean Moody’s Investors Service, Inc.



“Mortgage Tax States” shall mean, collectively, Alabama, Florida, Kansas, Georgia,
Minnesota, New York, Oklahoma, Tennessee, Virginia and any other State in which an Individual
Property or any Substitute Property may be located which imposes a mortgage recording or other
mortgage tax.




“New Sublease” shall have the meaning set forth in Section 8.7.1.




“Non-Consolidation Opinion” shall have the meaning provided in Section 2.5.5.



“Non-Disqualification Opinion” shall mean an opinion of outside tax counsel reasonably
acceptable to the Lender or the Rating Agencies to whom such opinion is addressed that a
contemplated action will neither cause any trust formed as a REMIC pursuant to a Securitization to
fail to qualify as a “real estate mortgage investment conduit” within the meaning of Section 860D
of the Code at any time that any “regular interests” in the REMIC are outstanding nor cause a
“prohibited transaction” tax (within the meaning of Section 860F(a)(2) of the Code) or “prohibited
contribution” tax (within the meaning of Section 860G(d) of the Code) to be imposed on any such
REMIC.




“Non-Disturbance Agreement” shall have the meaning set forth in Section 8.7.7.



“Notes” shall mean, collectively, (a) that certain Amended, Restated and Consolidated
Note A-1, dated the date hereof, made by Borrower, as maker, in favor of Lender, as payee, in the
principal amount of $147,500,000 and (b) that certain Amended, Restated and Consolidated Note A-2,
dated the date hereof, made by Borrower, as maker, in favor of Lender, as payee, in the principal
amount of $147,500,000, as the same may be amended, restated, replaced, supplemented or otherwise
modified from time to time.




“Obligations” shall have meaning set forth in the recitals of the Security Instrument.



“OFAC” List means the list of specially designated nationals and blocked persons
subject to financial sanctions that is maintained by the U.S. Treasury Department, Office of
Foreign Assets Control and accessible through the internet website www.treas.gov/ofac/t11sdn.pdf.



“Officer’s Certificate” shall mean a certificate executed by an authorized signatory
of Borrower that is familiar with the financial condition of Borrower and the operation of the
Property, provided that the Officer’s Certificate required under Article XI shall
be executed by the Chief Financial Officer of Borrower.


 


15









 





“Opinion of Counsel” shall mean an opinion of counsel of a law firm selected by
Borrower and reasonably acceptable to Lender.



“Other Charges” shall mean, collectively, (i) all sums, charges, fees, costs,
expenses, common area maintenance charges and other charges or assessments reserved in or payable
under any reciprocal easement agreements, if any, and (ii) maintenance charges, impositions other
than Impositions, and any other charges, including, without limitation, vault charges and license
fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter
levied or assessed or imposed against the Property or any part thereof by any Governmental
Authority, other than those required to be paid by Master Lessee or any other Tenant pursuant to
its Lease.




“Other Taxes” shall have the meaning set forth in Section 2.4.3.



“Outparcel” shall mean each parcel of Land legally described in Schedule VII
attached hereto.



“Outparcel Release Instruments” shall have the meaning set forth in Section
2.3.7.




“Payment Date” shall have the meaning set forth in the Notes.



“Permitted Debt” shall mean collectively, (a) the Notes and the other obligations,
indebtedness and liabilities specifically provided for in any Loan Document and secured by this
Agreement, the Security Instrument and the other Loan Documents and (b) trade payables incurred in
the ordinary course of Borrower’s (or in the case of the Maryland Property, Maryland Loan
Guarantor’s) business, not secured by Liens on the Property (other than Permitted Encumbrances and
other than liens being properly contested in accordance with the provisions of this Agreement or
the Security Instrument), not to exceed two percent (2%) of the aggregate Principal Amount for the
Property at any one time outstanding, payable by or on behalf of Borrower (or Maryland Loan
Guarantor, as applicable) for or in respect of the operation of the Property in the ordinary course
of operating Borrower’s (or Maryland Loan Guarantor, as applicable) business, provided that
(but subject to the remaining terms of this definition) each such amount shall be paid within sixty
(60) days following the date on which each such amount is incurred. Nothing contained herein shall
be deemed to require Borrower or Maryland Loan Guarantor to pay any amount, so long as Borrower (or
Maryland Loan Guarantor, as applicable) is in good faith, and by proper legal proceedings,
diligently contesting the validity, amount or application thereof, provided that in each
case, at the time of the commencement of any such action or proceeding, and during the pendency of
such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii)
adequate reserves with respect thereto are maintained on the books of Borrower (or Maryland Loan
Guarantor, as applicable) in accordance with GAAP (as determined by Borrower (or Maryland Loan
Guarantor, as applicable) or, at its option, an Independent Accountant), and (iii) such contest
operates to suspend collection or enforcement, as the case may be, of the contested amount and such
contest is maintained and prosecuted continuously and with diligence. Notwithstanding anything set
forth herein, in no event shall Borrower or Maryland Loan Guarantor be permitted under this
provision to enter into a note (other than the Notes and the other Loan Documents) or other
instrument for borrowed money.


 


16









 





“Permitted Encumbrances” shall mean collectively, (a) the Liens and security interests
created or permitted by the Loan Documents, (b) all Liens, encumbrances and other matters disclosed
in the Title Policy or the Survey relating to such Individual Property or any part thereof, (c)
Liens, if any, for Impositions imposed by any Governmental Authority not yet due or delinquent (d)
Liens arising after the date hereof which are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted in accordance with Section 7.3
hereof, (e) easements and encumbrances permitted pursuant to Section 8.3(ii) and (f) such
other Liens as Lender may approve in writing in Lender’s sole discretion.



“Permitted Fund Manager” means any Person that on the date of determination is (i) a
nationally-recognized manager of investment funds investing in debt or equity interests (including
debt and equity interests relating to commercial real estate) and (ii) not subject to a bankruptcy
proceeding.




“Permitted Investments” shall have the meaning set forth in the Account Agreement.



“Person” shall mean any individual, corporation, partnership, joint venture, limited
liability company, estate, trust, unincorporated association, any federal, state, county or
municipal government or any bureau, department or agency thereof and any fiduciary acting in such
capacity on behalf of any of the foregoing.




“Personal Property” shall have the meaning set forth in the Security Instrument.



“Physical Conditions Reports” shall mean the structural engineering reports with
respect to the Individual Properties (i) prepared by an Independent Architect, (ii) addressed to
Lender, (iii) prepared based on a scope of work determined by Lender in Lender’s reasonable
discretion, and (iv) in form and content acceptable to Lender, in Lender’s reasonable discretion,
together with any amendments or supplements thereto. The Physical Conditions Reports may consist
of updates to the existing structural engineering reports, provided that (A) such updated
reports are in form and content acceptable to Lender in Lender’s reasonable discretion and (B) the
Independent Architect preparing such updated reports shall provide to Lender a reliance letter
satisfactory to Lender.




“Plan” shall have the meaning set forth in Section 4.1.10.



“Principal Amount” shall mean, collectively, the aggregate “Principal Amount” under
each of the Notes, as such term is defined in each of the Notes.



“Prohibited Person” means any Person identified on the OFAC List or any other Person
with whom a U.S. Person may not conduct business or transactions by prohibition of Federal law or
Executive Order of the President of the United States or America.




“Proceeds” shall have the meaning set forth in Section 6.2.2.



“Proceeds Prepayments” shall mean Proceeds applied by Lender as a prepayment of
principal in accordance with Section 6.2.3 hereof.


 


17









 






“Proceeds Reserve Account” shall have the meaning set forth in Section 3.1.1.




“Project” shall have the meaning set forth in Section 16.3.




“Property” shall have the meaning set forth in the Security Instrument.




“Property Release” shall have the meaning set forth in Section 2.3.4.




“Property Release Notice” shall have the meaning set forth in Section 2.3.4.




“Provided Information” shall have the meaning set forth in Section 14.1.




“PZR” shall mean The Planning Zoning Resource Corporation.



“Qualified Transferee” shall mean any entity (a) that together with its Close
Affiliates (i) has a net worth of at least $250,000,000 (calculated exclusive of the Property) as
of a date no more than six (6) months prior to the date of the transfer and (ii) manages or owns at
the time of the transfer assets of at least $600,000,000 (calculated exclusive of the Property);
provided, however, that if such transferee has experience in operating warehouse or
distribution facilities, properties (excluding the Property) containing not fewer than 4,000,000
rentable square feet of warehouse space in the aggregate, then such transferee shall meet the
requirements of this clause (a) if it, together with its Close Affiliates (1) has a net worth of at
least $150,000,000 (calculated exclusive of the Property) as of a date no more than six (6) months
prior to the date of the transfer and (2) manages or owns at the time of the transfer assets of at
least $400,000,000 (calculated exclusive of the Property), and (b) that is not a Disqualified
Transferee.



“Rating Agencies” shall mean (a) prior to a Securitization, each of S&P, Moody’s and
Fitch and any other nationally-recognized statistical rating agency which has been approved by
Lender and (b) after a Securitization has occurred, each such Rating Agency which has rated the
Securities in the Securitization.



“Rating Agency Confirmation” shall mean, collectively, a written affirmation from each
of the Rating Agencies that the credit rating of the Securities given by such Rating Agency
immediately prior to the occurrence of the event with respect to which such Rating Agency
Confirmation is sought will not be qualified, downgraded or withdrawn as a result of the occurrence
of such event, which affirmation may be granted or withheld in such Rating Agency’s sole and
absolute discretion. In the event that, at any given time, no such Securities shall have been
issued and are then outstanding, then the term Rating Agency Confirmation shall be deemed instead
to require the written approval of Lender based on its good faith determination of whether the
Rating Agencies would issue a Rating Agency Confirmation if any such Securities were outstanding.



“Recourse Guaranty” shall mean that certain Guaranty of Recourse Obligations of
Borrower, dated as of the date hereof, by Guarantor in favor of Lender, as the same may be amended,
supplemented, restated or otherwise modified from time to time.



“Register” shall have the meaning set forth in Section 15.4.


 


18









 





“Regulatory Change” shall mean any change after the date of this Agreement in federal,
state or foreign laws or regulations or the adoption or the making, after such date, of any
interpretations, directives or requests applying to Lender, or any Person Controlling Lender or to
a class of banks or companies Controlling banks of or under any federal, state or foreign laws or
regulations (whether or not having the force of law) by any court or Governmental Authority or
monetary authority charged with the interpretation or administration thereof.



“Related Remaining Property” shall have the meaning set forth in Section
2.3.7.




“Release Date” shall have the meaning provided in Section 2.3.4(a).




“Release Instruments” shall have the meaning provided in Section 2.3.4(c).



“Release Price” shall mean the product of (a) the Allocated Loan Amount for the
Release Property and (b) either (1) with respect to any Release Property that is a Key Property,
one hundred twenty-five percent (125%) or (2) with respect to any Release Property that is not a
Key Property, the applicable Release Price Percentage. The amount of any Proceeds Prepayments
with respect to an Individual Property shall (after calculating such Release Price based upon the
original Allocated Loan Amount for such Property without deduction, for purposes of such
calculation, for any such prepayments) be deducted from the Release Price for such Property.



“Release Price Percentage” shall mean, as of any Release Date, (i) if the Principal
Amount that would be outstanding immediately following the release of the applicable Release
Property is from $295,000,000 to and including $265,500,000, one hundred percent (100%) or (ii) if
the Principal Amount that would be outstanding immediately following the release of the applicable
Release Property is less than $265,500,000, one hundred ten percent (110%), provided that,
in the case of each of clause (i) and clause (ii), any prior reductions in the Principal Amount
outstanding as a result of payments of Release Prices in respect of Key Properties and any
mandatory prepayment made pursuant to the provisions of Section 6.2.3 and Section 4(b) of
the Note shall be disregarded in determining the Principal Amount that would be outstanding
immediately following the release of the applicable Release Property.




“Release Property” shall have the meaning provided in Section 2.3.4.



“Rents” shall mean all rents, rent equivalents, moneys payable as damages or in lieu
of rent or rent equivalents, royalties (including, without limitation, all oil and gas or other
mineral royalties and bonuses), income, receivables, receipts, revenues, deposits (including,
without limitation, security, utility and other deposits), accounts, cash, issues, profits, charges
for services rendered, and other consideration of whatever form or nature received by or paid to or
for the account of or benefit of Borrower or Maryland Loan Guarantor from any and all sources
arising from or attributable to the Property, including, but not limited to the Master Lease and
the Leases, and Proceeds, if any, from business interruption or other loss of income insurance.
Notwithstanding the foregoing, Rents shall not include any sums payable under (i) the Oil, Gas and
Mineral Lease, dated as of June 17, 2003, between Georgia-Pacific Corporation, as landlord, and
Eagle Oil & Gas Co., as tenant, as amended by that certain Amendment to Oil, Gas and Mineral Lease,
dated as of May 31, 2005, by and between ABP TX (FORT WORTH) LLC, as
landlord, and Antero Resources I, LP and Eagle Oil & Gas Co., as tenant and (ii) the Oil and
Gas Lease, dated November 7, 1988, between Georgia-Pacific Corporation, as landlord, and GonzOil,
Inc., successor by assignment to Weinsz Oil & Gas, as successor by assignment to Spenser Petroleum
Corporation.


 


19









 






“Replaced Property” shall have the meaning provided in Section 2.3.6.



“Revolving Loan” shall mean the loan made by Wachovia pursuant to the Revolving Loan
Agreement (as such term is defined in the Intercreditor Agreement).




“S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill.



“Scheduled Defeasance Payments” shall have the meaning provided in Section
2.3.5(b).




“Securities” shall have the meaning set forth in Section 14.1.




“Securities Act” shall have the meaning set forth in Section 14.3.1.




“Securitization” shall have the meaning set forth in Section 14.1.




“Security Agreement” shall have the meaning set forth in Section 2.3.5(a).




“Security Deposits” shall have the meaning provided in the Assignment of Leases.



“Security Instrument” shall mean that, collectively, those certain Amended, Restated
and Consolidated Mortgages, Security Agreements, Financing Statements, Fixture Filings and
Assignments of Master Lease, Leases, Rents and Security Deposits or similarly entitled instruments,
dated the date hereof, executed and delivered by the applicable Borrower (or in the case of the
Maryland Property, the Maryland Loan Guarantor) to Lender (or to a trustee for the benefit of
lender, as applicable) and encumbering, in each case, its Individual Property, as any of the
foregoing may be amended, restated, replaced, supplemented or otherwise modified from time to time.



“Servicer” shall mean such Person designated in writing with an address for such
Person by Lender, in its sole discretion, to act as Lender’s agent hereunder with such powers as
are specifically delegated to the Servicer by Lender, whether pursuant to the terms of this
Agreement, the Account Agreement or otherwise, together with such other powers as are reasonably
incidental thereto.




“Single Purpose Entity” shall mean a Person, other than an individual, which



(i) is formed or organized solely for the purpose of (1) owning, holding, developing, using,
operating and financing an ownership interest in the Property or its Individual Property, entering
into this Agreement with the Lender, refinancing its Individual Property in connection with a
permitted repayment of the Loan or portion thereof, and transacting lawful business that is
incident, necessary and appropriate to accomplish the foregoing, or (2) acting as
a general partner of a limited partnership that owns the Property or an Individual Property or
the sole or managing member of a limited liability company that owns the Property or an Individual
Property, as applicable;



 


20









 





(ii) does not engage in any business unrelated to (1) the Property or its Individual Property
and the ownership, development, use, operation and financing thereof, or (2) acting as general
partner of a limited partnership that owns the Property or an Individual Property or the sole or
managing member of a limited liability company that owns the Property or an Individual Property, as
applicable;



(iii) has not and will not have (1) any material assets other than the Property or its
Individual Property and personal property necessary or incidental to its interest in the Property
or its Individual Property, or the operation, management and financing thereof, or its partnership
interest in a limited partnership, or the member interest in a limited liability company that owns
the Property or an Individual Property, or acts as the general partner or managing member thereof
(or, in the case of Maryland Borrower, acts as the Subsidiary of Maryland Loan Guarantor), as
applicable; or (2) any indebtedness other than the Permitted Debt;



(iv) maintains its own separate books and records and its own accounts, in each case which are
separate and apart from the books and records and accounts of any other Person;




(v) holds itself out as being a Person, separate and apart from any other Person;




(vi) does not and will not commingle its funds or assets with those of any other Person;




(vii) conducts its own business in its own name;



(viii) maintains separate financial statements and will not permit its assets to be listed as
assets on the financial statement of any other Person; provided, however, that any
such consolidated financial statement shall contain a note indicating that its separate assets and
liabilities are neither available to pay the debts of the consolidated entity nor constitute
obligations of the consolidated entity;




(ix) pays its own liabilities out of its own funds;



(x) observes in all material respects all partnership, corporate or limited liability company
formalities, as applicable;



(xi) pays the salaries of its own employees, if any, and maintains a sufficient number of
employees, if any, in light of its contemplated business operations;



(xii) except pursuant to the Loan Documents, does not guarantee or otherwise obligate itself
with respect to the debts of any other Person or hold out its credit as being available to satisfy
the obligations of any other Person;


 


21









 






(xiii) does not acquire obligations or securities of its partners, members or shareholders;



(xiv) allocates fairly and reasonably shared expenses, including, without limitation, any
overhead for shared office space, if any;




(xv) uses separate stationary, invoices, and checks;




(xvi) maintains an arms-length relationship with its Affiliates;



(xvii) except pursuant to the Loan Documents, does not and will not pledge its assets for the
benefit of any other Person or make any loans or advances to any other Person;



(xviii) does and will continue to use commercially reasonable efforts to correct any known
misunderstanding regarding its separate identity;




(xix) maintains adequate capital in light of its contemplated business operations; and



(xx) has not and will not engage in, seek, or consent to the dissolution, winding up,
liquidation, consolidation or merger and except as otherwise permitted in this Agreement, has not
and will not engage in, seek or consent to any asset sale, transfer of its partnership, membership
or shareholder interests (if such entity is a general partner in a limited partnership or the
managing member in a limited liability company), or amendments of its partnership or operating
agreement, certificate of incorporation, articles of organization or other organizational document.
In addition, if such Person is a partnership, (1) all general partners of such Person shall be
Single Purpose Entities; and (2) if such Person has more than one general partner, then the
organizational documents shall provide that such Person shall continue (and not dissolve) for so
long as a solvent general partner exists. In addition, if such Person is a corporation, then, at
all times: (a) such Person shall have at least two (2) Independent Directors and (b) the board of
directors of such Person may not take any action requiring the unanimous affirmative vote of one
hundred percent (100%) of the members of the board of directors unless all of the directors,
including the Independent Directors, shall have participated in such vote. In addition, if such
Person is a limited liability company, (a) with only one (1) member, then, such Person shall be
organized in the State of Delaware, have as its only member a non-managing member, and be managed
by a board of managers, (b) shall have at least two (2) Independent Managers or Independent
Members, (c) if such Person is managed by a board of managers, the board of managers of such Person
may not take any action requiring the unanimous affirmative vote of one hundred percent (100%) of
the members of the board of managers unless all of the managers, including the Independent
Managers, shall have participated in such vote, (c) if such Person is not managed by a board of
managers, the members of such Person may not take any action requiring the affirmative vote of one
hundred percent (100%) of the members of such Person unless all of the members, including the
Independent Members, shall have participated in such vote, (d) with more than one member, each
managing member shall be a Single Purpose Entity, and (e) its articles of organization, certificate
of formation and/or operating agreement, as applicable, shall provide that until all of the
Indebtedness and Obligations are paid in full such entity will not dissolve. In addition, the
organizational documents of such Person shall



 


22









 






provide that such Person (1) without the unanimous consent of all of the partners, directors or
members, as applicable, shall not with respect to itself or to any other Person in which it has a
direct or indirect legal or beneficial interest (a) seek or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator, custodian or other similar official for the
benefit of the creditors of such Person or all or any portion of such Person’s properties, or (b)
take any action that might cause such Person to become insolvent, petition or otherwise institute
insolvency proceedings or otherwise seek any relief under any laws relating to the relief from
debts or the protection of debtors generally, (2) has and will maintain its books, records,
resolutions and agreements as official records, (3) has held and will hold its assets in its own
name, (4) has and will maintain its financial statements, accounting records and other
organizational documents, books and records separate and apart from any other Person, and will not
permit its assets to be listed as assets on the financial statement of any other Person;
provided, however, that any such consolidated financial statement shall contain a
note indicating that its separate assets and liabilities are neither available to pay the debts of
the consolidated entity nor constitute obligations of the consolidated entity, (5) will file its
own tax returns to the extent required by applicable law, (6) has not and will not identify its
partners, members or shareholders, or any affiliates of any of them as a division or part of it,
(7) has and will maintain an arms-length relationship with its Affiliates, and (8) has not and will
not enter into or be a party to any transaction with its partners, members, shareholders, or its
Affiliates except in the ordinary course of business and on terms which are intrinsically fair and
are no less favorable to it than would be obtained in a comparable arms-length transaction with a
third party.



“Special Taxes” shall mean any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, or any liabilities with respect thereto, including those
arising after the date hereof as result of the adoption of or any change in law, treaty, rule,
regulation, guideline or determination of a Governmental Authority or any change in the
interpretation or application thereof by a Governmental Authority but excluding, in the case of
Lender, such taxes (including income taxes, franchise taxes and branch profit taxes) as are imposed
on or measured by Lender’s net income by the United States of America or any Governmental Authority
of the jurisdiction under the laws under which Lender is organized or maintains a lending office.



“SPE Entity” shall mean Borrower, Maryland Loan Guarantor and any other Person which
is required by this Agreement to be, as long as the Loan is outstanding, a Single Purpose Entity.



“State” shall mean, with respect to each Individual Property, the State in which such
Individual Property or any part thereof is located.



“Structural Repair Reserve Account” shall have the meaning set forth in Section
3.1.1.



“Structural Repairs” shall mean structural repairs and replacements with respect to
the Improvements approved by Lender or for which disbursement is otherwise permitted in accordance
with Section 16.3.



“Sub-Account(s)” shall have the meaning set forth in Section 3.1.1.


 


23









 





“Sublease” shall mean any lease (other than the Master Lease), sublease or
subsublease, letting, license, concession or other agreement (whether written or oral and whether
now or hereafter in effect), pursuant to which any Person is granted by Master Lessee a possessory
interest in, or right to use or occupy all or any portion of any space in any Individual Property,
and every modification, amendment or other agreement relating to such lease, sublease, subsublease,
or other agreement entered into in connection with such lease, sublease, subsublease, or other
agreement and every guarantee of the performance and observance of the covenants, conditions and
agreements to be performed and observed by the other party thereto.




“Sublease Modification” shall have the meaning set forth in Section 8.7.1.




“Substitute Property” shall have the meaning provided in Section 2.3.6(a).



“Substitute Property Mortgage Spreader Agreement” shall have the meaning provided in
Section 2.3.6(a).




“Substitution” shall have the meaning provided in Section 2.3.6(a).




“Substitution Date” shall have the meaning provided in Section 2.3.6(c).



“Substitution Due Diligence Package” shall have the meaning provided in Section
2.3.6(c).




“Substitution Notice” shall have the meaning provided in Section 2.3.6(c).




“Successor Borrower” shall have the meaning set forth in Section 2.3.5(d).



“Survey” shall mean a survey of each parcel of each Individual Property prepared by a
surveyor licensed in the State selected by Borrower and reasonably satisfactory to Lender and the
Title Company, and containing a certification of such surveyor satisfactory to Lender.



“Taking” shall mean a temporary or permanent taking by any Governmental Authority as
the result or in lieu or in anticipation of the exercise of the right of condemnation or eminent
domain, of all or any part of the Property, or any interest therein or right accruing thereto,
including any right of access thereto or any change of grade affecting the Property or any part
thereof.




“Tax Reserve Account” shall have the meaning set forth in Section 3.1.1.




“Tax Reserve Amount” shall have the meaning set forth in Section 16.1.



“Tenant” shall mean any Person other than the Master Lessee leasing, subleasing or
otherwise occupying any portion of any Individual Property, and its permitted successors and
assigns.




“Terrorism Insurance” shall have the meaning set forth in Section 6.1.8.



“Threshold Amount” shall mean two percent (2%) of the Loan Amount.


 


24









 





“Title Company” shall mean, collectively, Fidelity National Title Insurance Company
(as to fifty-five percent (55%) of coverage) and Lawyers Title Insurance Corporation (as to
forty-five percent (45%) of coverage), or, with respect to Substitutions from and after the date
hereof, any one of the foregoing subject to delivery of co-insurance endorsements from the other
Title Companies and, in states where available, tie-in endorsements from all of the Title Companies
with respect to such coverage.



“Title Policy” shall mean an ALTA mortgagee title insurance policy or policies in a
form acceptable to Lender (or, if an Individual Property is in a State which does not permit the
issuance of such ALTA policy, such form as shall be permitted in such State and acceptable to
Lender) issued by the Title Company with respect to the Property and insuring the Lien of the
Security Instrument.



“Total Loss” shall mean, with respect to each Individual Property, (i) a casualty,
damage or destruction of an Individual Property which, in the reasonable judgment of Lender, (A)
involves an actual or constructive loss of more than fifty percent (50%) (or, in the case of a Key
Property, twenty-five percent (25%)) of the Allocated Loan Amount for such Individual Property, or
(B) results in the cancellation of the Master Lease or of Leases comprising more than forty percent
(40%) of the rentable area of such Individual Property, and in either case with respect to which
the Master Lease and the Leases do not require Proceeds to be applied to the restoration of such
Individual Property or (ii) a permanent Taking which, in the reasonable judgment of Lender, (A)
involves an actual or constructive loss of more than thirty-five percent (35%) (or, in the case of
a Key Property, fifteen percent (15%)) of the Allocated Loan Amount for an Individual Property, or
(B) renders untenantable either more than thirty-five percent (35%) (or, in the case of a Key
Property, fifteen percent (15%)) of the rentable area of such Individual Property, or (iii) a
casualty, damage, destruction or Taking that affects so much of an Individual Property such that it
would be impracticable, in Lender’s reasonable discretion, even after restoration, to operate such
Individual Property as an economically viable whole. Notwithstanding the foregoing, in no event
shall a Total Loss with respect to a particular Individual Property exist pursuant to clauses (i)
or (ii) above unless the aggregate Allocated Loan Amounts of Individual Properties then currently
impacted by a casualty, damage, destruction or Taking is greater than 10% of the Principal Amount.



“Transfer” shall mean to, directly or indirectly, sell, assign, convey, mortgage,
transfer, pledge, hypothecate, encumber, grant a security interest in, exchange or otherwise
dispose of any beneficial interest or grant any option or warrant with respect to, or where used as
a noun, a direct or indirect sale, assignment, conveyance, transfer, pledge or other disposition of
any beneficial interest by any means whatsoever whether voluntary, involuntary, by operation of law
or otherwise.



“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as
in effect in the State.




“Underwriter Group” shall have the meaning set forth in Section 14.3.2(b).


 


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“U.S. Government Obligations” shall mean any direct obligations of, or obligations
guaranteed as to principal and interest by, the United States Government or any
agency or instrumentality thereof, provided that such obligations are backed by the
full faith and credit of the United States. Any such obligation must be limited to instruments
that have a predetermined fixed dollar amount of principal due at maturity that cannot vary or
change. If any such obligation is rated by S&P, it shall not have an “r” highlighter affixed to
its rating. Interest must be fixed or tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with said index. U.S. Government Obligations include,
but are not limited to: U.S. Treasury direct or fully guaranteed obligations, Farmers Home
Administration certificates of beneficial ownership, General Services Administration participation
certificates, U.S. Maritime Administration guaranteed Title XI financing, Small Business
Administration guaranteed participation certificates or guaranteed pool certificates, U.S.
Department of Housing and Urban Development local authority bonds, and Washington Metropolitan Area
Transit Authority guaranteed transit bonds. In no event shall any such obligation have a maturity
in excess of 365 days.




“Wachovia” shall have the meaning set forth in Section 14.3.2(b).




“Work” shall have the meaning provided in Section 6.2.4(a).




“Yield Maintenance Premium” shall have the meaning set forth in the Notes.



“Yield Maintenance Premium Release Date” shall have the meaning set forth in the
Notes.



1.2 Principles of Construction. All references to sections and schedules are to sections
and schedules in or to this Agreement unless otherwise specified. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP. When used herein, the term
“financial statements” shall include the notes and schedules thereto. Unless otherwise specified
herein or therein, all terms defined in this Agreement shall have the definitions given them in
this Agreement when used in any other Loan Document or in any certificate or other document made or
delivered pursuant thereto. All uses of the word “including” shall mean including, without
limitation unless the context shall indicate otherwise. Unless otherwise specified, the words
hereof, herein and hereunder and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise
specified, all meanings attributed to defined terms herein shall be equally applicable to both the
singular and plural forms of the terms so defined.




II. GENERAL TERMS



2.1 Loan; Disbursement to Borrower.



2.1.1 The Loan. Subject to and upon the terms and conditions set forth herein, Lender
hereby agrees to make and Borrower hereby agrees to accept the Loan on the Closing Date.



2.1.2 Disbursement to Borrower. Borrower may request and receive only one borrowing
hereunder in respect of the Loan and any amount borrowed and repaid hereunder in respect of the
Loan may not be reborrowed. Borrower acknowledges and agrees that the full proceeds of the Loan
have been disbursed by Lender to Borrower on the Closing Date.


 


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2.1.3 The Notes, Security Instrument and Loan Documents. The Loan shall be evidenced by
the Notes and secured by the Security Instrument, the Assignment of Leases, this Agreement and the
other Loan Documents.



2.1.4 Use of Proceeds. Borrower shall use the proceeds of the Loan (a) to (i) repay and
discharge any existing mortgage loans secured by the Property, (ii) make initial deposits into the
Sub-Accounts as required hereunder, and (iii) pay costs and expenses incurred in connection with
the closing of the Loan, and (b) as otherwise set forth on the closing statement executed by Lender
and Borrower in connection with the closing of the Loan.



2.2 Interest; Loan Payments; Late Payment Charge.



2.2.1 Payment of Principal and Interest.



(i) Except as set forth in Section 2.2.1(ii), interest shall accrue on the Principal
Amount as set forth in the Notes.



(ii) Upon the occurrence and during the continuance of an Event of Default, and from and after
the Maturity Date if the entire Principal Amount is not repaid on the Maturity Date, interest on
the outstanding principal balance of the Loan and, to the extent permitted by law, overdue interest
and other amounts due in respect of the Loan shall accrue at the Default Rate calculated from the
date such payment was due without regard to any grace or cure periods contained herein. Interest
at the Default Rate shall be computed from the occurrence of the Event of Default until the actual
receipt and collection of the Indebtedness (or that portion thereof that is then due). This
paragraph shall not be construed as an agreement or privilege to extend the date of the payment of
the Indebtedness, nor as a waiver of any other right or remedy accruing to Lender by reason of the
occurrence of any Event of Default, and Lender retains its rights under the Notes to accelerate and
to continue to demand payment of the Indebtedness upon the happening of any Event of Default in
accordance with the terms hereof.



2.2.2 Method and Place of Payment.



(a) On each Payment Date, Borrower shall pay to Lender interest accruing pursuant to the Notes
for the entire Interest Period preceding such Payment Date.



(b) All amounts advanced by Lender pursuant to the applicable provisions of the Loan
Documents, other than the Principal Amount, together with any interest at the Default Rate or other
charges as provided therein, shall be due and payable hereunder as provided in the Loan Documents.
In the event any such advance or charge is not so repaid by Borrower, Lender may, at its option,
first apply any payments received under the Notes to repay such advances, together with any
interest thereon, or other charges as provided in the Loan Documents, and the balance, if any,
shall be applied in payment of any installment of interest or principal then due and payable.


 


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(c) The Maturity Date Payment shall be due and payable in full on the Maturity Date.



2.2.3 Late Payment Charge. If any principal, interest or any other sums due under the Loan
Documents (other than the outstanding Principal Amount due and payable on the
Maturity Date) is not paid by Borrower on or prior to the date which is five (5) days after the
date on which it is due (or if such fifth (5th) day is not a Business Day, then the
Business Day immediately preceding such fifth (5th) day), Borrower shall pay to Lender
upon demand an amount equal to the lesser of five percent (5%) of such unpaid sum or the Maximum
Legal Rate (the “Late Payment Charge”) in order to defray the expense incurred by Lender in
handling and processing such delinquent payment and to compensate Lender for the loss of the use of
such delinquent payment. Any such amount shall be secured by this Agreement, the Security
Instrument and the other Loan Documents to the extent permitted by applicable law.



2.2.4 Usury Savings. This Agreement and the Notes are subject to the express condition
that at no time shall Borrower be obligated or required to pay interest on the principal balance of
the Loan at a rate which could subject Lender to either civil or criminal liability as a result of
being in excess of the Maximum Legal Rate. If, by the terms of this Agreement or the other Loan
Documents, Borrower is at any time required or obligated to pay interest on the principal balance
due under the Notes at a rate in excess of the Maximum Legal Rate, then the Interest Rate or the
Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal
Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been
payments in reduction of principal and not on account of the interest due under the Notes. All
sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due
under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term of the Loan until payment in full so that the
rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of
interest from time to time in effect and applicable to the Loan for so long as the Loan is
outstanding.



2.3 Prepayments.



2.3.1 Prepayments. No prepayments of the Indebtedness shall be permitted except as set
forth in Section 4 of the Notes and as set forth herein.



2.3.2 Prepayments After Event of Default; Application of Amounts Paid. If after the
occurrence and during the continuance of an Event of Default, Borrower tenders payment of all or
any part of the Indebtedness, or if all or any portion of the Indebtedness is recovered by Lender
after such Event of Default (including through application of any reserves held by Lender pursuant
to the terms hereof), (a) on any date other than a Payment Date, then such payment shall include
interest that would have accrued on such amounts through the end of the Interest Period during
which such payment is made, and such amounts shall be held by Lender as collateral security for the
Loan in an interest bearing account at an Eligible Institution, with interest accruing on such
amounts to the benefit of Borrower, and applied to the Loan on the next occurring Payment Date, (b)
such payment shall be deemed a voluntary prepayment by Borrower, and (c) Borrower shall pay, in
addition to the Indebtedness, an amount equal to the Yield Maintenance Premium and all other fees
and sums payable hereunder or under the Loan Documents, including without limitation, interest that
has accrued at the Default Rate and any Late Payment Charges.


 


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2.3.3 Release of Property upon Repayment or Defeasance of Loan in Full. Lender shall, upon
the written request and at the expense of Borrower, upon (a) payment in full of the
Principal Amount and interest on the Loan and all other amounts due and payable under the Loan
Documents in accordance with the terms and provisions of the Notes and this Agreement or (b) a
Defeasance Event with respect to the Loan in whole, release the Lien of (i) this Agreement upon the
Account Collateral and (ii) the Security Instrument and Assignment of Leases on the Property (or,
at Borrower’s request, assign it (together with the Notes), in whole or in part, to a new lender
without representation, warranty or recourse). In such event, Borrower shall submit to Lender, not
less than ten (10) Business Days prior to the date of such release or assignment, a release of lien
or assignment of lien, as applicable, for such property for execution by Lender. Such release or
assignment, as applicable, shall be in a form appropriate in each jurisdiction in which the
Property is located and satisfactory to Lender in its reasonable discretion. In addition, Borrower
shall provide all other documentation Lender reasonably requires to be delivered by Borrower in
connection with such release or assignment, as applicable.



2.3.4 Release of Individual Properties. Subject to satisfaction of each of the conditions
set forth below (collectively, the “General Release Conditions”) with respect to any
Individual Property or Individual Properties (other than the portion of any Individual Property
that that is an Outparcel, the release of which Outparcels is governed by Section 2.3.7
below), Lender shall (i) release such Individual Property or Individual Properties (each a
“Release Property”) from the Lien of the Security Instrument and related Loan Documents (or
a deed of partial reconveyance, as the case may be) and the release of Borrower’s (and in the case
of the Maryland Property, the Maryland Loan Guarantor’s) obligations under the Loan Documents with
respect to the Released Property, other than those expressly stated herein or in such other Loan
Documents to survive (or to the extent so requested by Borrower, assign the Lien of the Security
Instrument to a new lender without representation, warranty or recourse) (each release under this
Section 2.3.4 or Section 2.3.6 or in connection with a partial defeasance of the
Loan pursuant to Section 2.3.5, a “Property Release”), (ii) instruct the Cash
Management Bank to return to Borrower any Excess Account Collateral subject to and in accordance
with Section 2.3.8 except to the extent otherwise provided in such Section 2.3.8,
(iii) comply with Section 2.3.9 with regard to adjusting the ongoing reserve requirements
hereunder and (iv) adjust the Monthly Debt Service Payment Amount in accordance with Section
4(b)(ii) of the Notes:



(a) Borrower delivers a written notice (a “Property Release Notice”) to Lender of its
desire to effect such Property Release, no later than fifteen (15) Business Days prior to the date
of such desired Property Release, and setting forth the Business Day (the “Release Date”)
on which Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) desires that
Lender release its interest in such Release Property.



(b) Borrower shall have paid to Lender (i) the Release Price, (ii) the applicable Yield
Maintenance Premium, if any, and (iii) all other sums due under the Notes in connection with such
prepayment. If the Release Date is not a Payment Date, then the Release Price shall include
interest that would have accrued on the Allocated Loan Amount for the Release Property through the
end of the Interest Period during which such payment is made, and the Release Price, and the
applicable Yield Maintenance Premium, if any, shall be held by Lender as collateral security for
the Loan in an interest bearing account at an Eligible Institution, with interest accruing on such
amounts to the benefit of Borrower, and applied to the Loan on the next occurring Payment Date.


 


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(c) Borrower shall submit to Lender not less than ten (10) Business Days prior to the Release
Date (which must be on a Business Day), a release of Liens (and related Loan Documents) for each
applicable Release Property (for execution by Lender) in a form appropriate in the applicable State
and otherwise satisfactory to Lender, in its reasonable discretion, and all other documentation
Lender reasonably requires to be delivered by Borrower in connection with such Property Release
(collectively, “Release Instruments”), together with an Officer’s Certificate certifying
that the requirement described in paragraph (d) below is satisfied in connection with such Property
Release (together with calculations and supporting documentation demonstrating the same in
reasonable detail) and, simultaneously with the Release, Guarantor withdraws and is replaced as the
managing member of the applicable Borrower (or Maryland Loan Guarantor, as applicable) that is the
owner of the Release Property or such Borrower (or Maryland Loan Guarantor) is dissolved in
connection with the release.



(d) With respect to any Property Release, after giving effect to such Property Release, the
LCR as of the Release Date (calculated with reference to all of the Individual Properties then
remaining subject to the Liens of the Security Instrument) shall not be less than the greater of
(A) ninety percent (90%) of the Closing Date LCR and (B) seventy-five percent (75%) of the LCR for
all of the Individual Properties subject to the Lien of the Security Instrument immediately prior
to the Release Date.




(e) No Event of Default shall have occurred and then be continuing on the Release Date.



(f) The Release Property is simultaneously transferred to a party other than Borrower or
Maryland Loan Guarantor or any SPE Entity.



(g) Each of Borrower and Maryland Loan Guarantor executes and delivers such other instruments,
certificates, opinions of counsel and documentation as Lender and, if the Release Date occurs
following a Securitization, the Rating Agencies shall reasonably request in order to preserve,
confirm or secure the Liens and security granted to Lender by the Loan Documents, including any
amendments, modifications or supplements to any of the Loan Documents and partial release
endorsements to the existing Title Policy.



(h) Borrower shall pay for any and all out-of-pocket costs and expenses incurred by Lender in
connection with any proposed Property Release, including Lender’s reasonable attorneys’ fees and
disbursements and all title insurance premiums for any customary endorsements to any existing Title
Policies required by Lender in connection with such proposed release.



Notwithstanding the foregoing, clauses (b)(ii) and (d) above shall not apply to
Casualty/Condemnation Property Releases.



2.3.5 Defeasance.



(a) Generally. Borrower shall have the right, at any time following the expiration of
the Defeasance Lockout Period but prior to the Yield Maintenance Premium Release Date to
voluntarily defease the Loan in whole and obtain the release of the Property, or solely in
connection with a Property Release, in part, and obtain the release of the applicable Individual
Property or Individual Properties, by and upon satisfaction of the following conditions (such
event being a “Defeasance Event”):


 


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(i) Borrower shall provide not less than thirty (30) days prior written notice to Lender
specifying the date (the “Defeasance Date”) on which the Defeasance Event shall occur;
provided that Borrower shall have the right to revoke such notice upon written notice given
to Lender not Less than three (3 Business Days prior to the then scheduled Defeasance Date
provided Borrower reimburses Lender for any actual out-of-pocket costs incurred by Lender
in connection with such revocation;



(ii) Borrower shall pay to Lender all accrued and unpaid interest on the portion of the
outstanding Principal Amount of the Loan then being defeased to and including the Defeasance Date;



(iii) Borrower shall pay to Lender all other sums, not including scheduled interest or
principal payments, then due and payable under the Note, this Agreement, the Security Instrument
and the other Loan Documents;




(iv) No Event of Default shall have occurred and then be continuing on the Defeasance Date;



(v) If the Loan is defeased in whole, Borrower shall comply with the conditions set forth in
Section 2.3.3, and if the Loan is defeased only in part, Borrower shall also comply with
the conditions set forth in Section 2.3.4(c) with respect to the release of the applicable
Individual Property or Individual Properties;



(vi) Borrower shall deliver to Lender, at Borrower’s option, either (A) the Defeasance Deposit
or (B) the Defeasance Collateral (such Defeasance Collateral to be in an amount equal to or greater
than that which could otherwise be purchased with the Defeasance Deposit had the required
Defeasance Deposit been delivered by Borrower);



(vii) Borrower (and/or, if requested by Lender in the case of the Maryland Property, the
Maryland Loan Guarantor) shall execute and deliver a pledge and security agreement, in form and
substance that would be reasonably satisfactory to a prudent lender, creating a first priority lien
on the Defeasance Collateral, in accordance with the provisions of this Section 2.3.5 (the
“Security Agreement”);



(viii) Borrower shall (A) deliver an Opinion of Counsel for Borrower that is standard in
commercial lending transactions and subject only to customary qualifications, assumptions and
exceptions opining, among other things, that (1) Lender has a perfected first priority security
interest in the Defeasance Collateral delivered by Borrower or the Maryland Loan Guarantor, as
applicable and (2), if applicable, Borrower (and/or Maryland Loan Guarantor, as applicable, in the
case of the Maryland Property), has duly and validly transferred and assigned to the Successor
Borrower the Defeasance Collateral and all obligations, rights and duties under and to the Notes
(or each Undefeased Note, as hereinafter defined) that are attributable to the Property, and (B) if
the Defeasance Event occurs after a Securitization, pay all reasonable costs of Lender obtaining a
Non-Disqualification Opinion with respect to such Defeasance Event;


 


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(ix) With respect to any Defeasance Event occurring after a Securitization, Borrower shall
obtain a Rating Agency Confirmation to the effect that the Defeasance Collateral to be purchased
qualifies and is sufficient so that the substitution of such Defeasance Collateral for the Property
or the Individual Property or Individual Properties being released, as applicable, will not result
in a downgrade, withdrawal or qualification of the respective ratings in effect immediately prior
to such Defeasance Event for the Securities issued in connection with the Securitization which are
then outstanding. If required by the applicable Rating Agencies, Borrower shall also deliver or
cause to be delivered a Non-Consolidation Opinion with respect to any Successor Borrower in form
and substance (i) reasonably satisfactory to a prudent lender and (ii) satisfactory to the
applicable Rating Agencies;



(x) Borrower shall deliver a certificate (in form reasonably acceptable to Lender) of an
Independent Accountant engaged by Borrower certifying that the Defeasance Collateral shall generate
monthly amounts equal to or greater than the Scheduled Defeasance Payments;



(xi) In the case of a defeasance of the Loan in part, Borrower shall execute and deliver all
documents required by the Lender to amend and restate each of the Notes with two (2) substitute
Notes, (A) one Note having a principal balance equal to all sums required to be paid hereunder with
respect to such Release and Defeasance Event (the “Defeased Note”), and (B) one Note having
a principal balance equal to the outstanding principal balance of the Note immediately prior to the
Defeasance Event minus the all sums required to be paid hereunder with respect to such Release and
Defeasance Event (the “Undefeased Note”). Each Undefeased Note may be the subject of one
or more further Defeasance Events in accordance with the provisions of this Section 2.3.5.
From and after the Defeasance of the Loan in part, all references to the Note in this Agreement and
the other Loan Documents shall be deemed to refer to the Undefeased Note; and



(xii) Borrower shall pay all costs and expenses of Lender incurred in connection with the
Defeasance Event, including (A) any out-of-pocket costs and expenses associated with a release (in
full or in part, as applicable) of the Lien of the Security Instrument as provided in Section
2.3.3 or Section 2.3.4, as applicable (including, in the case of a release of an
Individual Property or Individual Properties, all title insurance premiums for any endorsements to
any existing Title Policies reasonably required by Lender in connection with such proposed
release), (B) reasonable attorneys’ fees and expenses incurred in connection with the Defeasance
Event, (C) the costs and expenses of the Rating Agencies, if the Defeasance Event occurs after a
Securitization, and (D) any revenue, documentary stamp or intangible taxes or any other tax or
charge due in connection with the transfer of the Notes, or otherwise required to accomplish the
defeasance.


 


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(b) Scheduled Defeasance Payments. In connection with any Defeasance Event, Borrower
shall purchase Defeasance Collateral (or Lender shall use the Defeasance Deposit to purchase such
Defeasance Collateral) which provide payments on or prior to, but as close as possible to, all
successive scheduled Payment Dates after the Defeasance Date but prior to the Yield Maintenance
Premium Release Date, in amounts equal to the scheduled payments of principal, interest, and any
other amounts due on each such Payment Date under the Loan Documents (or, in the case, of a partial
defeasance, the portions of such scheduled payments due
on each such Payment Date under this Agreement and the Defeased Note) but assuming, for
purposes hereof, that the Maturity Date Payment shall be paid on the Yield Maintenance Premium
Release Date (the aforedescribed payments, the “Scheduled Defeasance Payments”). Borrower
(and/or Maryland Loan Guarantor, as applicable, in the case of the Maryland Property) pursuant to
the Security Agreement or other appropriate document, shall authorize and direct that the payments
received from the Defeasance Collateral may be made directly to the Holding Account (unless
otherwise directed by Lender) and applied to satisfy the obligations of Borrower (and/or Maryland
Loan Guarantor, as applicable in the case of the Maryland Property) or Successor Borrower, if
applicable, under this Agreement and the Notes (or each Defeased Note, in the case of the
defeasance of the Loan in part). Any portion of the Defeasance Deposit in excess of the amount
necessary to purchase the Defeasance Collateral required by this Section 2.3.5 and to
satisfy Borrower’s other obligations hereunder shall be remitted to Borrower. Following the
payment in full of the Notes (and each Defeased Note in the case of a defeasance of the Loan in
part) and all other Obligations on the Maturity Date, any amounts remaining in the Defeasance
Deposit, if any, shall be remitted to Borrower.



(c) Defeasance Collateral. The Defeasance Collateral shall be duly endorsed by the
holder thereof as directed by Lender or accompanied by a written instrument of transfer in form and
substance that would be reasonably satisfactory to a prudent lender and that does not require
Borrower or Maryland Loan Guarantor, as applicable, to incur any additional obligations or
liabilities, (including, without limitation, such instruments as may be reasonably required by the
depository institution holding such securities or by the issuer thereof, as the case may be, to
effectuate book-entry transfers and pledges through the book-entry facilities of such institution)
in order to perfect, upon the delivery of the Defeasance Collateral, a first priority security
interest therein in favor of the Lender in conformity with all applicable state and federal laws
governing the granting of such security interests.



(d) Successor Borrower. If the Defeasance Event occurs after a Securitization,
Borrower (and/or Maryland Loan Guarantor, as applicable, in the case of the Maryland Property)
may, at its option, or if so required by the applicable Rating Agencies, shall, establish or
designate a successor entity (the “Successor Borrower”) which shall be a single purpose
bankruptcy remote entity approved by the Rating Agencies with one (1) Independent Director, and
Borrower (and/or Maryland Loan Guarantor, as applicable, in the case of the Maryland Property)
shall transfer and assign all obligations, rights and duties under and to the Notes (or each
Defeased Note in the case of a defeasance of the Loan in part), together with the pledged
Defeasance Collateral to such Successor Borrower. Such Successor Borrower shall assume the
obligations under the Notes (or each Defeased Note in the case of a defeasance of the Loan in part)
and the Security Agreement and Borrower (and/or Maryland Loan Guarantor, as applicable, in the case
of the Maryland Property) shall be relieved of its obligations under such documents. Borrower
shall pay $1,000 to any such Successor Borrower as consideration for assuming the obligations under
the Notes and the Security Agreement. Notwithstanding anything in this Agreement to the contrary,
no other assumption fee shall be payable upon a transfer of the Note in accordance with this
Section 2.3.5(d), but Borrower shall pay all costs and expenses incurred by Lenders,
including Lenders’ reasonable attorneys’ fees and expenses and, if the Defeasance Event occurs
after a Securitization, any fees and expenses of any Rating Agencies, incurred in connection
therewith. Any Successor Borrower may be an Affiliate of Borrower or a defeasance consultant or
similar service provider.


 


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(e) Release of Defeased Property. If Borrower has elected to defease the Loan or any
allocated portion thereof, and the requirements set forth in this Section 2.3.5 have been
satisfied, the Property or the applicable Individual Property or Individual Properties shall be
released from the Lien of the Security Instrument and the Defeasance Collateral pledged pursuant to
the Security Agreement shall be the substitute sole source of collateral securing such amounts due
under the Notes (or a substitute source of collateral securing such amounts under each Defeased
Note in the case of a defeasance of the Loan in part). Further, the pledge of the related Account
Collateral and other property pledged under this Agreement and the other Loan Documents and all
other obligations of Borrower (and Maryland Loan Guarantor in the case of the Maryland Property)
created hereunder in respect of such Property, Individual Property or Individual Properties, as
applicable, shall be discharged, other than those expressly stated to survive.



2.3.6 Substitution of Properties.



(a) Generally. An Individual Borrower may, subject to the conditions in this
Section 2.3.6, substitute one or more warehouse or distribution facility properties (each a
“Substitute Property”) for an existing Individual Property (each a “Replaced
Property”) and obtain the release of the Replaced Property from the Lien of the Security
Instrument and related Loan Documents (or a deed of partial reconveyance, as the case may be) and
the release of Borrower’s (and, in the case of the Maryland Property, Maryland Loan Guarantor’s)
obligations under the Loan Documents with respect to the Replaced Property, other than those
expressly stated to survive (each such release and substitution, a “Substitution”);
provided, however, such right of Substitution shall be limited to Individual
Properties whose aggregate Allocated Loan Amounts represent not greater than thirty percent (30%)
of the Loan Amount. From and after the Substitution of a Substitute Property in accordance
herewith, such Substitute Property shall thereafter be deemed a Property, and shall have the
Allocated Loan Amount applicable to the Replaced Property. Concurrently with the completion of all
steps necessary to effect a Substitution as provided in this Section 2.3.6, Lender shall
release such Replaced Property from the Lien of the Security Instrument and related Loan Documents.
In the event of a Substitution, the Notes shall remain in full force and effect, and the Lien of
the Security Instrument shall be spread to encumber the Substitute Property (each a “Substitute
Property Mortgage Spreader Agreement”).



(b) Certain Requirements. All Substitute Properties shall comply with this
Section 2.3.6. To qualify as a Substitute Property, a property must, as of the
Substitution Date (in addition to the other criteria set forth in this Section 2.3.6):




(i) be subject to the Master Lease;



(ii) be a property as to which the applicable Individual Borrower (or, in the case of the
Maryland Property, Maryland Loan Guarantor) will hold insurable fee title free and clear of any
Lien or other encumbrance except for exceptions not materially impairing the value of such
property, and have an Appraised Value at least equal to the Appraised Value of the Replaced
Property;



(iii) be (A) free and clear, as evidenced by the environmental report referred to in paragraph
(c) below, of Hazardous Substances requiring remediation or other action under any
Environmental Law and/or the presence of which violates Environmental Laws and (B) in material
compliance with all Environmental Laws;


 


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(iv) be in good repair and condition, as evidenced by the engineering report referred to in
clause (c) below; and



(v) be in compliance, in all material respects, with Legal Requirements and Insurance
Requirements, as evidenced by diligence items required to be provided in paragraph (c) below.



(c) Diligence Process. The Borrower shall submit to the Lender written notice (a
“Substitution Notice”) setting forth the Business Day no earlier than forty-five (45) days
after the date of such Substitution Notice on which Borrower desires to effect such Substitution
(the “Substitution Date”), together with the following materials (the “Substitution Due
Diligence Package”) relating to the proposed Substitute Property: (i) a description of the
proposed Substitute Property sufficient to obtain the Title Policy, (ii) two (2) years of
historical cash flow operating statements, if available, (iii) true, complete and correct copies of
any Leases affecting the proposed Substitute Property, (iv) a map and site plan, including an
existing Survey of the property dated not more than six (6) months prior to such submission, (v) a
copy of the proposed amendment to the Master Lease and Master Lease SNDA to include the Substitute
Property, (vi) copies of all permits, licenses and approvals required with respect to operation of
the Substitute Property, (vii) an environmental report issued by a recognized environmental
consultant, (viii) copies of all reciprocal easement agreements, if any, affecting the Substitute
Property, (ix) an engineer’s inspection report, (x) estoppel certificates from parties to any
reciprocal easement agreements and tenants under any Material Subleases, in each case in form
reasonably acceptable to Lender, together with any governmental consents required in order to
subject the Substitute Property to the Lien of the Security Instrument, (xi) a commitment from the
Title Company with respect to the issuance of a Title Policy, together with copies of all
exceptions referenced therein, (xii) upon the reasonable request of the Lender, a “Probable Maximum
Loss” study, (xiii) an Appraisal, (xiv) if such Substitute Property is not then owned by Borrower
(or in the case of property located in Maryland, Maryland Guarantor) or its Affiliate, a duly
executed copy of the purchase and sale agreement for such Substitute Property and copies of all
proposed documentation transferring title to the Substitute Property to Borrower (or, in the case
of property located in Maryland, the Maryland Guarantor), including any interim transfers to its
Affiliates, (xv) a copy of the flood certification, (xvi) either (A) a letter or other evidence
with respect to the proposed Substitute Property from the appropriate Governmental Authorities
concerning compliance with applicable zoning and building laws, (B) an ALTA 3.1 zoning endorsement
for the Title Policy or (C) a zoning report prepared by PZR or other similar company indicating
that the Substitute Property is in material compliance with applicable zoning and building laws,
(xvii) a copy of the valid permanent certificate of occupancy (if required by applicable law),
(xviii) calculations of the LTV Ratio and the LCR both before and after the proposed Substitution
and (xix) pro formas of the insurance certificates required under Article VI with respect
to such Substitute Property, and not revealing any Liens other than Permitted Encumbrances. In
addition, subject to the consent of the owner of the Substitute Property, Lender shall be permitted
to make an inspection of such Substitute Property as a condition to such substitution.


 


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(d) Additional Conditions Precedent. In addition to the conditions in paragraphs (a),
(b) and (c) above, each Substitution shall be subject to the satisfaction of the following
conditions precedent:



(i) Rating Agency Confirmation; Rating Agency Requirements. For any Substitution made
after a Securitization, Lender’s receipt of a Rating Agency Confirmation and Borrower’s
satisfaction of such other conditions as may be required by the Rating Agencies;



(ii) Release Conditions. Borrower’s compliance with the conditions set forth in
Section 2.3.4(c), (f) and (g) with respect to the release of the Replaced
Property;




(iii) Financial and Other Tests.



(1) LCR. After giving effect to such Substitution, the LCR as of the Substitution
Date (calculated with reference to all of the Individual Properties then remaining subject to the
Liens of the Security Instrument; i.e., including the Substitute Property and excluding the
Replaced Property) shall not be less than the greater of (A) ninety percent (90%) of the Closing
Date LCR and (B) seventy-five percent (75%) of the LCR for all of the Individual Properties subject
to the Lien of the Security Instrument immediately prior to the Substitution Date.



(2) LTV Ratio. After giving effect to such Substitution, as of the Substitution Date,
the LTV Ratio (as calculated by including the Substitute Property, but excluding the Replaced
Property), shall not be less than the Closing Date LTV Ratio.



(3) Geographic Diversity. The proposed Substitution does not cause the aggregate
Allocated Loan Amounts with respect to Individual Properties located in any single Geographic
Quadrant to exceed fifty percent (50%) of the Principal Amount.



(iv) Lender’s Costs and Expenses. Borrower shall pay for any and all costs and
expenses of Lender incurred in connection with any proposed Substitution, including Lender’s
reasonable attorneys’ fees and disbursements, all title insurance premiums for any endorsements to
any existing Title Policies reasonably required by Lender in connection with such proposed
Substitution, title premiums, mortgage recording taxes, transfer taxes and recording fees.




(v) Intentionally Omitted.



(vi) Opinions of Counsel. Borrower shall deliver to Lender the following favorable
original Opinions of Counsel or updates thereto in connection with the Substitute Property similar
in form and substance to the opinions which were delivered on the Closing Date in connection with
the Replaced Property, reasonably satisfactory to Lender (and satisfactory to the Rating Agencies,
if applicable) and addressed to the Lender on behalf of the holders of the Notes: (a) if requested
by the Rating Agencies following or in connection with a Securitization, a non-consolidation
opinion, (b) a local counsel enforceability opinion, (c) an enforceability opinion under New York
law, (d) an opinion to the effect that each of Borrower, Maryland Loan Guarantor, Master Lessee and
Guarantor is duly organized and validly existing under the laws of the state of its formation and
is qualified or licensed to do business in each jurisdiction where the
nature of its business in which it is engaged makes such qualification or licensing necessary
and (e) an opinion to the effect that the Loan Documents or amendments thereto have been duly
authorized, executed and delivered by Borrower, Maryland Loan Guarantor, Master Lessee and
Guarantor and are the valid and binding obligations and agreements of such party, enforceable in
accordance with their terms, in each case with the same exceptions as made on Closing Date;


 


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(vii) No Event of Default. No Event of Default shall have occurred and then be
continuing on the Substitution Date;



(viii) Accuracy of Representations and Warranties. The representations and warranties
set forth in the Loan Documents shall be true and correct as to the Substitute Property on the
Substitution Date in all material respects;



(ix) Officer’s Certificate. Delivery to Lender of an Officer’s Certificate certifying
to the truth and accuracy of the statements in clause (viii);



(x) Non-Disqualification Opinion. If the Substitution Date occurs after a
Securitization, delivery of a Non-Disqualification Opinion;



(xi) Organizational Documents. Delivery to Lender of (A) if required by the Rating
Agencies, copies of organizational documents of Borrower, Maryland Loan Guarantor, Master Lessee
and Guarantor, including, but not limited to a current certificate of good standing, (B) if the
Substitute Property is located in a state not previously covered by the Security Instrument,
evidence of Borrower’s (or, in the case of property located in Maryland, the Maryland Loan
Guarantor’s) qualification to do business in the state where the Substitute Property is located if
and to the extent such qualification is required in the applicable jurisdiction and (C) appropriate
evidence of the authorization of the Borrower, Maryland Loan Guarantor, Master Lessee and Guarantor
approving the execution, delivery and performance of the Loan Documents or amendments thereto being
executed and delivered in connection with the Substitution, duly adopted by the Borrower, Maryland
Loan Guarantor, Master Lessee and Guarantor, as applicable, and accompanied by an Officer’s
Certificate stating that such authorizations have not been altered or repealed and are in full
force and effect, and certifying as to the names of the Persons authorized to sign on behalf of
such parties, together with the true signatures of each such Person;



(xii) Insurance Certificates. Delivery of the insurance certificates with respect to
the Substitute Property required under Article VI; and



(xiii) Loan Documents. Delivery to Lender of originals of the following Loan
Documents or amendments thereto:



(1) a Substitute Property Mortgage Spreader Agreement, duly executed and acknowledged by
Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor);



(2) a first priority Assignment of Master Lease, Leases, Rents and Security Deposits, from
Borrower (or in the case of property located in Maryland, Maryland Loan Guarantor), as assignor, to
Lender, as assignee, assigning to Lender all of Borrower’s (or
Maryland Loan Guarantor’s, as applicable) interest in and to the Master Lease, the Leases,
Rents and Security Deposits as security for the Loan with respect to the Substitute Property, or a
counterpart original of the Assignment of Leases, modified as necessary, duly executed and
acknowledged by Borrower or Maryland Loan Guarantor, as applicable;


 


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(3) UCC financing statements (Form UCC-1) (or other forms required in any jurisdiction),
covering all fixtures and Building Equipment and other Personal Property (other than the Excluded
Personal Property), and all proceeds thereof, naming Borrower (or in the case of property located
in Maryland, Maryland Loan Guarantor) as debtor and Lender as secured party;



(4) the Title Policy or endorsements to the Title Policy, as applicable, issued by the Title
Company in an amount equal to the amount of coverage that had been provided for the Replaced
Property (or, if such Substitute Property is located in a Mortgage Tax State and the Replaced
Property is not, an amount equal to 125% of the amount of coverage that had been provided for the
Replaced Property), reflecting the addition of such Substitute Property and containing such
affirmative coverage similar in form and substance to the affirmative coverage provided in
connection with the Replaced Property, insuring that the Substitute Property Mortgage Spreader
Agreement creates a valid first lien on Borrower’s (or in the case of property located in Maryland,
Maryland Loan Guarantor’s) fee title in the Substitute Property, subject to the Permitted
Encumbrances, and insuring the perfected first priority interest of Lender pursuant to the
Substitute Property Mortgage Spreader Agreement, together with any title insurance premiums, fees
or charges due in connection therewith, and the Borrower shall cooperate with the Lender and
execute such further instruments and documents and perform such further acts as the Lender or the
Title Company shall reasonably request to carry out the creation and perfection of the liens and
security interests contemplated by the documents described in clauses (i), (ii) and (iii) and the
release, discharge and removal of any encumbrances required for the issuance of the Title Policy;



(5) an amendment to the Master Lease and to the Master Lease SNDA incorporating the Substitute
Property and eliminating the Replaced Property;



(6) updates to any Exhibits and Schedules to the Loan Documents, as applicable, without
disclosing matters inconsistent with the requirements of this Section 2.3.6; and



(7) a Confirmation of Guaranty and Indemnity in customary form duly executed and delivered by
Guarantor, adding the Substitute Property to, and affirming its obligations under, the Recourse
Guaranty and the Environmental Indemnity.



(e) Additional Deliveries. Lender shall have received such other deliveries
reasonably requested by Lender, provided such requests are customary and are consistent
with the deliveries required with respect to the Property on the Closing Date.


 


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2.3.7 Release of Outparcels. Provided no Event of Default has occurred and is continuing,
Borrower may request that Lender release an Outparcel from the Lien of the Security Instrument in
accordance with the terms of this Section 2.3.7. Lender shall have no obligation to
release any Outparcel from the Lien of the Security Instrument until Borrower shall have satisfied
the following conditions, as reasonably determined by Lender: (1) the Outparcel to be released
shall constitute a separate conveyable legal parcel in accordance with the subdivision map act or
the equivalent thereof in the jurisdiction of such Outparcel or other relevant granted government
approvals in such jurisdiction; (2) to the extent any easements or restrictive covenants benefiting
or burdening such Outparcel are necessary or appropriate for the use or operation of or
preservation of value with respect to any remaining Individual Property that is in the vicinity of,
or otherwise related to, the Outparcel (a “Related Remaining Property”), such easements
shall have been granted or reserved prior to or at the time of the release or reconveyance of such
Outparcel and shall have been approved by Lender, which approval shall not be unreasonably withheld
or delayed; (3) each Related Remaining Property shall remain a legal parcel (or parcels) in
compliance in all material respects with all Legal Requirements, zoning, subdivision, land use and
other applicable laws and regulations; (4) at the time of, but not prior to, any such release or
reconveyance, such Outparcel shall be transferred to a person or entity that does not result in a
breach of Borrower’s or Maryland Loan Guarantor’s obligation to be a Single Purpose Entity; (5)
Lender shall have received satisfactory evidence that any tax, bond or assessment that constitutes
a lien against such Outparcel has (i) prior to such release, been properly allocated between the
Outparcel and any Related Remaining Property and (ii) after such release, will be properly assessed
against the Outparcel and such Related Remaining Property separately; (6) Lender shall have
received such endorsements to the Title Policy (or substantially equivalent assurance) as Lender
may reasonably require confirming continuing title insurance and that (A) the Security Instrument
constitutes a first priority lien on any Related Remaining Property after the release of the
Outparcel, (B) such Related Remaining Property constitutes a separate tax lot or tax lots and (C)
such release shall not result in such Related Remaining Property ceasing to comply in all material
respects with all applicable Legal Requirements, zoning, land use and subdivision laws; (7)
Borrower (and in the case of Outparcels located in Maryland, Maryland Loan Guarantor) shall have
executed and delivered such documents (including amendments to the Loan Documents) as Lender may
reasonably require to reflect such release; (8) Borrower shall pay to Lender all costs and expenses
incurred by Lender (including, without limitation, reasonable attorneys fees and any applicable
costs and expenses of the Rating Agencies) in connection with each such release; (9) Borrower shall
have provided Lender at least fifteen (15) Business Days prior written notice of such requested
release; and (10) Borrower shall submit to Lender, not less than fifteen (15) days prior to the
date of such proposed release (which must be on a Business Day), a release of Liens (and related
Loan Documents) for such Outparcel, in a form appropriate in the applicable State and otherwise
satisfactory to Lender in its reasonable discretion, and all other documentation Lender reasonably
requires to be delivered by Borrower in connection with such release (collectively, “Outparcel
Release Instruments”).



2.3.8 Excess Account Collateral. Upon the occurrence of any Property Release,
provided no Low LCR Cash Sweep Period exists and no Event of Default has occurred and is
continuing, Lender shall promptly perform an analysis of the Account Collateral in order to
reasonably determine the amount of the Account Collateral (including, but not limited to, Proceeds)
attributable to the Release Property (the “Excess Account Collateral”), and shall promptly
instruct Cash Management Bank to return to Borrower the Excess Account Collateral, if any, except
to the extent that Lender reasonably determines that a shortfall exists in such Sub-Account with
respect to the Property other than the Release Property.


 


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2.3.9 Reserve Requirements. Upon the occurrence of a Property Release, provided no
Low LCR Cash Flow Sweep Period exists and no Event of Default has occurred and is continuing,
Lender shall promptly prepare a revised estimate of Impositions and Other Charges and insurance
premiums with respect to the remaining Individual Properties in accordance with Sections
16.1 and 16.2, as applicable, and shall promptly provide Borrower and Cash Management
Bank with notice of the revised Monthly Tax Reserve Amount and Monthly Insurance Reserve Amount.



2.4 Regulatory Change; Taxes.



2.4.1 Increased Costs. If as a result of any Regulatory Change or compliance of Lender
therewith, the basis of taxation of payments to Lender or any company Controlling Lender of the
principal of or interest on the Loan is changed or Lender or the company Controlling Lender shall
be subject to (i) any tax, duty, charge or withholding of any kind with respect to this Agreement
(excluding federal taxation of the overall net income of Lender or the company Controlling Lender);
or (ii) any reserve, special deposit or similar requirements relating to any extensions of credit
or other assets of, or any deposits with or other liabilities, of Lender or any company Controlling
Lender is imposed, modified or deemed applicable; or (iii) any other condition affecting loans to
borrowers subject to fixed interest rates is imposed on Lender or any company Controlling Lender
and Lender determines that, by reason thereof, the cost to Lender or any company Controlling Lender
of making, maintaining or extending the Loan to Borrower is increased, or any amount receivable by
Lender or any company Controlling Lender hereunder in respect of any portion of the Loan to
Borrower is reduced, in each case by an amount deemed by Lender in good faith to be material (such
increases in cost and reductions in amounts receivable being herein called “Increased
Costs”), then Lender shall provide notice thereof to Borrower and Borrower agrees that it will
pay to Lender upon Lender’s written request such additional amount or amounts as will compensate
Lender or any company Controlling Lender for such Increased Costs to the extent Lender reasonably
determines that such Increased Costs are allocable to the Loan. If Lender requests compensation
under this Section 2.4.1, Borrower may, by notice to Lender, require that Lender furnish to
Borrower a statement setting forth the basis for requesting such compensation and the method for
determining the amount thereof.



2.4.2 Special Taxes. Borrower shall make all payments hereunder free and clear of and
without deduction for Special Taxes. If Borrower shall be required by law to deduct any Special
Taxes from or in respect of any sum payable hereunder or under any other Loan Document to Lender,
(i) the sum payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under this Section
2.4.2) Lender receives an amount equal to the sum it would have received had no such deductions
been made, (ii) Borrower shall make such deductions, and (iii) Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable law. Notwithstanding
anything to the contrary contained in this Section 2.4.2, Borrower shall not be liable for
any amounts as a result of withholding for Special Taxes or additional costs incurred as a result
of the assignment of all or any portion of the Loan by Lender to any Person that is subject to
Special Taxes and which is organized under or has its principal place of business outside of the
United States of America or any political subdivision thereof.


 


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2.4.3 Other Taxes. In addition, Borrower agrees to pay any present or future stamp or
documentary taxes or other excise or property taxes, charges, or similar levies which arise from
any payment made hereunder, or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement, the other Loan Documents or the Loan (hereinafter referred to as
“Other Taxes”).



2.4.4 Indemnity. Borrower shall indemnify Lender for the full amount of Special Taxes and
Other Taxes (including any Special Taxes or Other Taxes imposed by any Governmental Authority on
amounts payable under this Section 2.4.4) paid by Lender and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto. This indemnification
shall be made within thirty (30) days after the date Lender makes written demand therefor.



2.4.5 Change of Office. To the extent that changing the jurisdiction of Lender’s
applicable office would have the effect of minimizing Special Taxes, Other Taxes or Increased
Costs, Lender shall use reasonable efforts to make such a change.



2.4.6 Survival. Without prejudice to the survival of any other agreement of Borrower
hereunder, the agreements and obligations of Borrower contained in this Section 2.4 shall
survive the payment in full of principal and interest hereunder, and the termination of this
Agreement.



2.5 Conditions Precedent to Closing. The obligation of Lender to make the Loan hereunder
is subject to the fulfillment by, or on behalf of, Borrower or waiver by Lender of the following
conditions precedent no later than the Closing Date; provided, however, that unless
a condition precedent shall expressly survive the Closing Date pursuant to a separate agreement, by
funding the Loan, Lender shall be deemed to have waived any such conditions not theretofore
fulfilled or satisfied.



2.5.1 Representations and Warranties; Compliance with Conditions. The representations and
warranties of Borrower and Maryland Loan Guarantor contained in this Agreement and the other Loan
Documents shall be true and correct in all material respects on and as of the Closing Date with the
same effect as if made on and as of such date, and no Default or Event of Default shall have
occurred and be continuing; and Borrower and Maryland Loan Guarantor shall be in compliance in all
material respects with all terms and conditions set forth in this Agreement and in each other Loan
Document on its part to be observed or performed.



2.5.2 Delivery of Loan Documents; Title Policy; Reports; Leases.



(a) Loan Documents. Lender shall have received an original copy of this Agreement,
the Notes and all of the other Loan Documents, in each case, duly executed (and to the extent
required, acknowledged) and delivered on behalf of Borrower and any other parties thereto.



(b) Security Instrument, Assignment of Leases. Lender shall have received evidence
that original counterparts of the Security Instrument and Assignment of Leases, in proper form for
recordation, have been delivered to the Title Company for recording, so as effectively to create,
in the reasonable judgment of Lender, upon such recording valid and enforceable first priority
Liens upon the Property, in favor of Lender (or such other trustee as may be required or
desired under local law), subject only to the Permitted Encumbrances and such other Liens as
are permitted pursuant to the Loan Documents.


 


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(c) UCC Financing Statements. Lender shall have received evidence that the UCC
financing statements relating to the Security Instrument and this Agreement have been delivered to
the Title Company for filing in the applicable jurisdictions.



(d) Title Insurance. Lender shall have received a Title Policy issued by the Title
Company and dated as of the Closing Date. Such Title Policy shall (i) provide coverage in an
amount equal to one hundred percent (100%) of the Loan (or in the case of the Individual Properties
in the Mortgage Tax States, one hundred twenty-five percent (125%) of the Allocated Loan Amount),
(ii) insure Lender that the Security Instrument creates a valid, first priority Lien on the
Property, free and clear of all exceptions from coverage other than Permitted Encumbrances and
standard exceptions and exclusions from coverage (as modified by the terms of any endorsements),
(iii) contain the endorsements and affirmative coverages set forth on Exhibit A and such
additional endorsements and affirmative coverages as Lender may reasonably request to the extent
available in the applicable State, and (iv) name Lender as the insured. Lender also shall have
received evidence that all premiums in respect of such Title Policy have been paid and that all
appropriate releases or discharges of encumbrances necessary for the delivery of the Title Policy
have been delivered for recording.



(e) Surveys. With respect to each of the Individual Properties, Lender shall have
received (i) a current Survey containing the survey certification substantially in the form
attached hereto as Exhibit B or (ii) copies of existing Surveys prepared in connection with
the financing being repaid with proceeds of the Loan, together with so called “no change
affidavits” executed by Borrower (or in the case of the Maryland Property, Maryland Loan
Guarantor), each in form sufficient to enable the Title Company to omit the standard survey
exception to title coverage and to issue the endorsements to the Title Policy required by Lender
(to the extent available in the applicable State), including, but not limited to, contiguity,
comprehensive, subdivision, land same as survey and access endorsements. Each such Survey shall
reflect the same legal description contained in the Title Policy referred to in paragraph (d) above
and shall include, among other things, a metes and bounds description (or such other description as
is required by Title Company) of the applicable Individual Property, any such description to be
reasonably satisfactory to Lender. The surveyor’s seal shall be affixed to each Survey.



(f) Insurance. Lender shall have received valid certificates of insurance for the
policies of insurance required hereunder, satisfactory to Lender in its sole discretion, and
evidence of the payment of all insurance premiums currently due and payable for the existing policy
period.



(g) Environmental Reports. Lender shall have received the Environmental Reports in
respect of the Individual Properties satisfactory to Lender (and Lender agrees and acknowledges
that the Environmental Reports may consist of updates to the existing environmental reports,
provided that (A) such updated reports are in form and content acceptable to Lender in
Lender’s reasonable discretion and (B) the environmental consultant preparing such updated reports
shall provide to Lender a reliance letter satisfactory to Lender).


 


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(h) Zoning. Lender shall have received with respect to each Individual Property one
of the following: (i) letters or other evidence with respect to the Property from the appropriate
municipal authorities (or other Persons) concerning compliance with applicable zoning and building
laws acceptable to Lender, (ii) an ALTA 3.1 zoning endorsement for the Title Policy or (iii) a
zoning report reasonably acceptable to Lender prepared by PZR or another nationally recognized
zoning due diligence firm acceptable to Lender.



(i) Certificate of Occupancy. Lender shall have received a copy of the valid
permanent certificate of occupancy for each Individual Property located in a jurisdiction that
requires certificates of occupancy under applicable law, in each case acceptable to Lender.



(j) Encumbrances. Borrower shall have taken or caused to be taken such actions in
such a manner so that Lender has a valid and perfected first Lien as of the Closing Date on the
Property, subject only to Permitted Encumbrances and such other Liens as are permitted pursuant to
the Loan Documents, and Lender shall have received satisfactory evidence thereof.



2.5.3 Related Documents. Each additional document not specifically referenced herein, but
relating to the transactions contemplated herein, shall have been duly authorized, executed and
delivered by all parties thereto and Lender shall have received and approved certified copies
thereof.



2.5.4 Delivery of Organizational Documents. On or before the Closing Date, Borrower shall
deliver, or cause to be delivered, to Lender copies, certified by an Officer’s Certificate, of all
organizational documentation related to Borrower, Maryland Loan Guarantor, Master Lessee, any other
SPE Entity and Guarantor as have been requested by Lender and/or the formation, structure,
existence, good standing and/or qualification to do business of Borrower, Maryland Loan Guarantor,
any other SPE Entity and Guarantor as Lender may request in its sole discretion, including, without
limitation, good standing certificates, qualifications to do business in the appropriate
jurisdictions, resolutions authorizing the entering into of the Loan and incumbency certificates as
may be requested by Lender. Each of the organizational documents of any SPE Entity shall contain
single purpose entity provisions having a substantive effect materially similar to that of the
language set forth in Exhibit C.



2.5.5 Counsel Opinions.



(a) Lender shall have received a Non-Consolidation Opinion in a form approved by Lender (the
“Non-Consolidation Opinion”).



(b) Lender shall have received the Opinion of Counsel substantially in compliance with the
requirements set forth in Exhibit D (and including a non-contravention opinion with respect
to the Revolving Loan) or in such other form approved by the Lender (provided that Lender
shall not unreasonably withhold its approval of the general form of any Opinion of Counsel that was
used by the applicable counsel in connection with the financing being repaid with proceeds of the
Loan).



2.5.6 Annual Budget. Borrower shall have delivered the Annual Budget for the current
Fiscal Year, which Annual Budget shall be acceptable to Lender and shall be certified by an
Officer’s Certificate.


 


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2.5.7 Completion of Proceedings. All corporate and other proceedings taken or to be taken
in connection with the transactions contemplated by this Agreement and other Loan Documents and all
documents incidental thereto shall be satisfactory in form and substance to Lender, and Lender
shall have received all such counterpart originals or certified copies of such documents as Lender
may reasonably request.



2.5.8 Payments. All payments, deposits or escrows, if any, required to be made or
established by Borrower under this Agreement, the Notes and the other Loan Documents on or before
the Closing Date shall have been paid.



2.5.9 Account Agreement. Lender shall have received the original of the Account Agreement
executed by each of Cash Management Bank, Borrower (other than Maryland Borrower) and Maryland Loan
Guarantor.



2.5.10 Master Lease SNDA. Borrower shall have, prior to Closing, delivered to Lender the
Master Lease SNDA executed by Master Lessee with respect to the Master Lease.



2.5.11 Reserved.



2.5.12 Reserved.



2.5.13 Independent Manager/Member Certificate. Lender shall have received an executed
Independent Manager/Member certificate substantially in the form attached as Exhibit T.



2.5.14 Transaction Costs. Borrower shall have paid or reimbursed Lender for all title
insurance premiums, recording and filing fees, costs of Environmental Reports, Physical Condition
Reports, seismic reports, zoning reports, searches, flood certifications, appraisals and other
reports, the reasonable fees and costs of Lender’s counsel and all other third party out-of-pocket
expenses incurred in connection with the origination of the Loan.



2.5.15 Material Adverse Effect. No change, circumstance, event or effect shall have
occurred since the date of Borrower’s most recent financial statements delivered to Lender which
has, or could reasonably be expected to, have a Material Adverse Effect.



2.5.16 Insolvency. None of Borrower, Master Lease Guarantor or Guarantor shall be the
subject of any bankruptcy, reorganization, or insolvency proceeding.



2.5.17 Leases. Lender shall have received copies of all Leases.



2.5.18 Master Lease; Master Lease SNDA. Lender shall have received a certified copy of the
Master Lease and shall have received the duly executed Master Lease SNDA in form and substance
reasonably acceptable to Lender.



2.5.19 Tax Lot. Lender shall have received a tax lot endorsement to the Title Policy or
other evidence that each Individual Property constitutes one (1) or more separate tax lots, which
endorsement or other evidence shall be reasonably satisfactory in form and substance to Lender.


 


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2.5.20 Physical Conditions Reports. Lender shall have received the Physical Conditions
Reports with respect to the Individual Properties, which shall be satisfactory in form and
substance to Lender.



2.5.21 Appraisals. Lender shall have received an Appraisal of each Individual Property,
which shall be satisfactory in form and substance to Lender.



2.5.22 Financial Statements. Lender shall have confirmed the accuracy of all financial
statements and other financial information with respect to the Property delivered by Borrower to
Lender.



2.5.23 Flood Certifications. Lender shall have received a flood zone certification with
respect to each Individual Property.



2.5.24 Intercreditor Agreement. Lender shall have received the Intercreditor Agreement as
well as certified copies of the loan documents evidencing the Revolving Loan (including any
amendments thereto).




III. CASH MANAGEMENT



3.1 Cash Management.



3.1.1 Establishment of Accounts. Borrower hereby confirms that, simultaneously with the
execution of this Agreement and pursuant to the Account Agreement, Borrower (or in the case of the
Maryland Property, Maryland Loan Guarantor) has established with Cash Management Bank, in the name
of Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) for the benefit of
Lender, as secured party, the holding account (the “Holding Account”), which has been
established as a securities account. The Holding Account and each sub-account of such account and
the funds deposited therein and securities and other assets credited thereto shall serve as
additional security for the Loan. Pursuant to the Account Agreement, Borrower (or in the case of
the Maryland Property, Maryland Loan Guarantor) shall irrevocably instruct and authorize Cash
Management Bank to disregard any and all orders for withdrawal from the Collateral Accounts made
by, or at the direction of, Borrower (or in the case of the Maryland Property, Maryland Loan
Guarantor). Borrower agrees that, prior to the payment in full of the Indebtedness, the terms and
conditions of the Account Agreement shall not be amended or modified without the prior written
consent of Lender (which consent Lender may grant or withhold in its sole discretion), and if a
Securitization has occurred, the delivery by Borrower of a Rating Agency Confirmation. In
recognition of Lender’s security interest in the funds deposited into the Collateral Accounts, the
Holding Account shall be named as follows: “BlueLinx Portfolio Holding Account f/b/o German
American Capital Corporation, as secured party, (Account Number 5000000140431).” Borrower confirms
that it has established with Cash Management Bank the following sub-accounts of the Holding Account
(each, a “Sub-Account” and, collectively, the “Sub-Accounts” and together with the
Holding Account, the “Collateral Accounts”), which (i) may be ledger or book entry
sub-accounts and need not be actual sub-accounts, (ii) shall each be linked to the Holding Account,
(iii) shall each be a “Securities Account” pursuant to Article 8 of the UCC and (iv) shall
each be an Eligible Account to which
certain funds shall be allocated and from which disbursements shall be made pursuant to the terms
of this Agreement:


 


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(a) a sub-account for the retention of Account Collateral in respect of Impositions and Other
Charges for the Property (the “Tax Reserve Account”);



(b) a sub-account for the retention of Account Collateral in respect of insurance premiums for
the Property (the “Insurance Reserve Account”);



(c) a sub-account for the retention of Account Collateral in respect of Debt Service on the
Loan (the “Debt Service Reserve Account”);



(d) a sub-account for the retention of Account Collateral in respect of reserves relating to
Master Lease Variable Additional Rent (the “Master Lease Variable Additional Rent Reserve
Account”);



(e) a sub-account for the retention of Account Collateral in respect of reserves for the
Immediate Repair Conditions and the Environmental Remediation Conditions (the “Immediate Repair
and Remediation Reserve Account”);



(f) a sub-account for the retention of Account Collateral in respect of reserves for
Structural Maintenance Items (the “Structural Repair Reserve Account”);



(g) a sub-account for the retention of Account Collateral in respect of certain Proceeds, as
more fully set forth in Section 6.2 (the “Proceeds Reserve Account”); and



(h) a sub-account for the retention of Account Collateral in respect of reserves of Excess
Cash Flow required during a Low LCR Cash Sweep Period pursuant to Section 16.5(c) (the
“LCR Deterioration Reserve Account”).



3.1.2 Pledge of Account Collateral. To secure the full and punctual payment and
performance of the Obligations, Borrower (or in the case of the Maryland Property, Maryland Loan
Guarantor) hereby collaterally assigns, grants a security interest in and pledges to Lender, to the
extent not prohibited by applicable law, a first priority continuing security interest in and to
the following property of Borrower (or in the case of the Maryland Property, Maryland Loan
Guarantor), whether now owned or existing or hereafter acquired or arising and regardless of where
located (all of the same, collectively, the “Account Collateral”):



(a) the Collateral Accounts and all cash, checks, drafts, securities entitlements,
certificates, instruments and other property, including, without limitation, all deposits and/or
wire transfers from time to time deposited or held in, credited to or made to Collateral Accounts;




(b) any and all amounts invested in Permitted Investments;



(c) subject to the provisions of Section 3.1.4, all interest, dividends, cash,
instruments, securities entitlements and other property from time to time received, receivable or
otherwise payable in respect of, or in exchange for, any or all of the foregoing or purchased with
funds from the Collateral Accounts; and


 


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(d) to the extent not covered by clauses (a), (b) or (c) above, all proceeds (as defined under
the UCC) of any or all of the foregoing.



In addition to the rights and remedies herein set forth, Lender shall have all of the rights
and remedies with respect to the Account Collateral available to a secured party at law or in
equity, including, without limitation, the rights of a secured party under the UCC, as if such
rights and remedies were fully set forth herein.



This Agreement shall constitute a security agreement for purposes of the Uniform Commercial
Code and other applicable law.



3.1.3 Maintenance of Collateral Accounts. Borrower (or in the case of the Maryland
Property, Maryland Loan Guarantor) agrees that each of the Collateral Accounts is and shall be
maintained (i) as a “securities account” (as such term is defined in Section 8-501(a) of the UCC),
(ii) in such a manner that Lender shall have control (within the meaning of Section 8-106(d)(2) of
the UCC) over the Collateral Accounts, (iii) such that no Person other than Lender shall have any
right of withdrawal from the Collateral Accounts and, except as provided herein, no Account
Collateral shall be released to the Borrower or any Affiliate of Borrower from the Collateral
Accounts, (iv) in such a manner that the Cash Management Bank shall agree to treat all property
credited to the Collateral Accounts as “financial assets” and (v) such that all securities or other
property underlying any financial assets credited to the Collateral Accounts shall be registered in
the name of Cash Management Bank, indorsed to Cash Management Bank or in blank or credited to
another securities account maintained in the name of Cash Management Bank and in no case will any
financial asset credited to any of the Collateral Accounts be registered in the name of Borrower,
payable to the order of Borrower or specially indorsed to Borrower, except to the extent the
foregoing have been specially indorsed to Cash Management Bank or in blank. Without limiting
Borrower’s obligations under the immediately preceding sentence, Borrower shall only establish and
maintain the Collateral Accounts with a financial institution that has executed an agreement
substantially in the form of the Account Agreement or in such other form acceptable to Lender in
its sole discretion.



3.1.4 Eligible Accounts. The Collateral Accounts shall be Eligible Accounts. The
Collateral Accounts shall be subject to such applicable laws, and such applicable regulations of
the Board of Governors of the Federal Reserve System and of any other banking or governmental
authority, as may now or hereafter be in effect. Income and interest accruing on the Collateral
Accounts or any investments held in such accounts for the benefit of Borrower (or in the case of
the Maryland Property, Maryland Loan Guarantor) shall be added to the principal amount of such
account on a daily basis (or with such frequency as the Cash Management Bank can accommodate) and
shall be held, disbursed and applied in accordance with the provisions of this Agreement and the
Account Agreement. Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor)
shall be the beneficial owner of the Collateral Accounts for federal income tax purposes and shall
report all income on the Collateral Accounts.


 


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3.1.5 Deposits into Sub-Accounts. On the date hereof, Borrower has deposited the following
amounts into the Sub-Accounts:




	 	(i)	 	$1,252,579.76 into the Tax Reserve Account;

	 
	 	(ii)	 	$1,193,316.37 into the Insurance Reserve Account;

	 
	 	(iii)	 	$0.00 into the Debt Service Reserve Account;

	 
	 	(iv)	 	$0.00 into the Master Lease Variable Additional Rent Reserve Account;

	 
	 	(v)	 	$0.00 into the Structural Repair Reserve Account;

	 
	 	(vi)	 	$404,310 into the Immediate Repair and Remediation Reserve Account; and

	 
	 	(vii)	 	$0.00 into the Proceeds Reserve Account; and

	 
	 	(viii)	 	$0.00 into the LCR Deterioration Reserve Account.






3.1.6 Monthly Funding of Sub-Accounts; Master Lease Rent Shortfalls; Master Lease Variable
Additional Rent Reserve; Sub-Account Shortfalls.



(a) Monthly Funding of Sub-Accounts. Borrower (or in the case of the Maryland
Property, Maryland Loan Guarantor) hereby irrevocably authorizes Lender to transfer (and, pursuant
to the Account Agreement shall irrevocably authorize Cash Management Bank to execute any
corresponding instructions of Lender), and Lender shall transfer, from the Holding Account by 11:00
a.m. New York time on the date on which each payment of Master Lease Rent under the Master Lease is
made to the Holding Account, or as soon thereafter as sufficient funds are in the Holding Account
to make the applicable transfers, commencing on the date of the first payment of Master Lease Rent
under the Master Lease following the date of this Agreement, funds in the following amounts and in
the following order of priority:



(i) funds in an amount equal to the Monthly Tax Reserve Amount and any other amounts required
pursuant to Section 16.1 for the month in which the transfer from the Holding Account is
made to the Tax Reserve Account;



(ii) funds in an amount equal to the Monthly Insurance Reserve Amount and any other amounts
required pursuant to Section 16.2 for the month in which the transfer from the Holding
Account is made to the Insurance Reserve Account;



(iii) funds in an amount equal to the amount of Debt Service due on the Payment Date
immediately following the date the transfer from the Holding Account is made to the Debt Service
Reserve Account;



(iv) funds in an amount equal to the Monthly Structural Repair Reserve Amount for the month in
which the transfer from the Holding Account is made to the Structural Repair Reserve Account;



(v) during the continuance of an Event of Default and during any Low LCR Cash Sweep Period,
funds in an amount equal to the Master Lease Variable Additional Rent payable under the Master
Lease for the month following the month in which the transfer from the Holding Account is made to
the Master Lease Variable Additional Rent Reserve Account;


 


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(vi) during the continuance of an Event of Default or a Low LCR Cash Sweep Period, funds in an
amount equal to the balance (if any) remaining or deposited in the Holding Account after the
foregoing transfers (such remainder being hereinafter referred to as “Excess Cash Flow”) to
the LCR Deterioration Reserve Account; and



(vii) provided no Low LCR Cash Sweep Period or Event of Default is then continuing,
the Excess Cash Flow to the Borrower’s Account.



(b) Master Lease Rent Shortfalls. If there is a Master Lease Rent Shortfall, subject
to the provisions of Section 3.1.6(c) below, Lender shall have the right, at its election,
to direct the Cash Management Bank to transfer (but shall not be obligated to so direct the Cash
Management Bank to transfer) from the LCR Deterioration Reserve Account to the Holding Account,
without notice to Borrower, an amount equal to such Master Lease Rent Shortfall.



(c) Master Lease Variable Additional Rent Reserve. In the event that no Low LCR Cash
Sweep Period or Event of Default is then continuing, Lender shall direct the Cash Management Bank
to transfer the funds in the Master Lease Variable Additional Rent Reserve Account to Borrower (or,
if directed by Borrower, to Master Lessee). During the continuance of any Low LCR Cash Sweep
Period or Event of Default, Lender shall pay or direct the Cash Management Bank to pay from the
Master Lease Variable Additional Rent Reserve Account, monthly payments of Master Lease Variable
Additional Rent directly to the Person having the right to receive such funds on the respective due
dates therefor and shall promptly notify Borrower and Master Lessee of any such payment.



(d) Sub-Account Shortfalls. If Lender shall reasonably determine that there will be
insufficient amounts in the Holding Account to make any of the transfers required pursuant to this
Section 3.1.6, Lender shall provide notice to Borrower of such insufficiency (it being
understood that in no event shall Lender be required to notify Borrower of any deficiency in the
Debt Service Reserve Account, such deficiency on the fifth (5th) day of any month (or,
if such fifth (5th) day is not a Business Day then the immediately preceding Business
Day) being an Event of Default) and, within five (5) days after receipt of said notice and prior to
the expiration of any grace period applicable to such payment, Borrower shall deposit into the
Holding Account an amount equal to the shortfall of available funds in the Holding Account taking
into account any funds which accumulate in the Holding Account during such five (5) day period.
Notwithstanding anything to the contrary contained in this Agreement or in the other Loan
Documents, Borrower shall not be deemed to be in default hereunder or thereunder in the event funds
sufficient for a required transfer are held in an appropriate Sub-Account and Lender or Cash
Management Bank fails to timely make any transfer from such Sub-Account, as contemplated by this
Agreement, unless due to the negligence or willful misconduct of Borrower.



(e) Notwithstanding anything to the contrary contained herein or in the Security Instrument,
Lender shall have the right, upon five (5) Business Days prior written notice thereof to Borrower,
to withdraw from the Holding Account an amount equal to any mortgage recording tax, costs, expenses
or other amounts pursuant to Section 19.12 of this Agreement then due and owing and pay
such amounts to the Person(s) entitled thereto.


 


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3.1.7 Required Payments from Sub-Accounts. Borrower irrevocably authorizes Lender to make
and, provided no Event of Default shall have occurred and be continuing, Lender hereby
agrees to make or to direct the Cash Management Bank to make, the following payments from the
Sub-Accounts to the extent of the monies on deposit therefor:



(i) funds from the Tax Reserve Account to Lender sufficient to permit Lender to pay (A)
Impositions and (B) Other Charges, on the respective due dates therefor, and Lender shall so pay
such funds to the Governmental Authority having the right to receive such funds;



(ii) funds from the Insurance Reserve Account to Lender sufficient to permit Lender to pay
insurance premiums for the insurance required to be maintained pursuant to the terms of this
Agreement and the Security Instrument, on the respective due dates therefor, and Lender shall so
pay such funds to the insurance company having the right to receive such funds;



(iii) funds from the Debt Service Reserve Account to Lender sufficient to pay Debt Service on
each Payment Date, and Lender, on each Payment Date, shall apply such funds to the payment of the
Debt Service payable on such Payment Date;



(iv) as provided in Section 16.3, funds from the Structural Repair Reserve Account to
the Borrower’s Account to pay for Structural Repairs;



(v) as provided in Section 16.4, funds from the Immediate Repair and Remediation
Reserve Account to the Borrower’s Account to reimburse Borrower for, or to pay, the cost of the
Immediate Repairs and Remediation;



(vi) as applicable, funds from the Master Lease Variable Additional Rent Reserve Account in
accordance with Section 3.1.6(c) and Section 16.5(b), and Lender shall so pay such
funds to the Person having the right to receive such funds; and



(vii) as applicable, funds from the LCR Deterioration Reserve Account in accordance with
Section 16.5(c).



3.1.8 Cash Management Bank.



(a) Lender shall have the right at Borrower’s sole cost and expense to replace the Cash
Management Bank with a financial institution reasonably satisfactory to Borrower in the event that
(i) the Cash Management Bank fails, in any material respect, to comply with the Account Agreement,
(ii) the Cash Management Bank named herein is no longer the Cash Management Bank or (iii) the Cash
Management Bank is no longer an Approved Bank. Upon the occurrence and during the continuance of
an Event of Default, Lender shall have the right at Borrower’s sole cost and expense to replace
Cash Management Bank at any time, upon prior written notice to Borrower. Borrower shall cooperate
with Lender in connection with the appointment of any replacement Cash Management Bank and the
execution by the Cash Management Bank and the Borrower of an Account Agreement and delivery of same
to Lender.



(b) So long as no Event of Default shall have occurred and be continuing, Borrower shall have
the right at its sole cost and expense to replace the Cash Management Bank with a financial
institution that is an Approved Bank provided that such financial institution and
Borrower shall execute and deliver to Lender an Account Agreement substantially similar to the
Account Agreement executed as of the Closing Date, or in such other form reasonably required by
Lender or required by the Rating Agencies, with such changes therein as shall be reasonably
acceptable to Lender.


 


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3.1.9 Borrower’s and Maryland Loan Guarantor’s Account Representations, Warranties and
Covenants.



(a) Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) represents,
warrants and covenants that as of the date hereof, Borrower (or in the case of the Maryland
Property, Maryland Loan Guarantor) has irrevocably directed the Master Lessee, pursuant to a letter
substantially in the form of the Master Lease Rent Payment Direction Letter, to (i) make all
payments of Master Lease Scheduled Rent directly to the Holding Account at all times during the
term of the Loan and (ii) make all payment of Master Lease Variable Additional Rent directly to the
Holding Account at all times during the continuance of a Low LCR Cash Sweep Period or an Event of
Default.



(b) Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) further
represents, warrants and covenants that (i) it shall cause Master Lessee to deposit all amounts
payable to it pursuant to the Master Lease directly into the Holding Account, (ii) it shall pay or
cause to be paid all Rents, Cash and Cash Equivalents or other items of operating income not
covered by the preceding subsection (a) within one Business Day after receipt thereof by Borrower
or its Affiliates directly into the Holding Account and, until so deposited, any such amounts held
by Borrower or its Affiliates shall be deemed to be Account Collateral and shall be held in trust
by it for the benefit, and as the property, of Lender and shall not be commingled with any other
funds or property of Borrower or its Affiliates, (iii) there are no accounts other than the
Collateral Accounts maintained by Borrower or any other Person with respect to the Property or the
collection of Rents and (vii) so long as the Loan shall be outstanding, neither Borrower nor any
other Person shall open any other operating accounts with respect to the Property or the collection
of Rents, except for the Collateral Accounts; provided that Borrower (or in the case of the
Maryland Property, Maryland Loan Guarantor) shall not be prohibited from utilizing one or more
separate accounts for the disbursement or retention of funds that have been transferred to the
Borrower’s Account pursuant to Section 3.1.6.



3.1.10 Account Collateral and Remedies.



(a) Upon the occurrence and during the continuance of an Event of Default, without additional
notice from Lender to Borrower, (i) Lender may, in addition to and not in limitation of Lender’s
other rights, make any and all withdrawals from, and transfers between and among, the Collateral
Accounts as Lender shall determine in its sole and absolute discretion to pay any Obligations,
operating expenses and/or Capital Expenditures for the Property, (ii) all Excess Cash Flow shall be
retained in the Holding Account or applicable Sub-Accounts and (iii) Lender may liquidate and
transfer any amounts then invested in Permitted Investments to the Collateral Accounts to which
they relate or reinvest such amounts in other Permitted Investments as Lender may reasonably
determine is necessary to perfect or protect any security interest granted or purported to be
granted hereby or to enable Lender to exercise and enforce Lender’s rights and
remedies hereunder with respect to any Account Collateral or to preserve the value of the
Account Collateral.


 


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(b) Borrower (and in the case of the Maryland Property, Maryland Loan Guarantor) hereby
expressly waives, to the fullest extent permitted by law, presentment, demand, protest or any
notice of any kind in connection with this Agreement or the Account Collateral. Borrower (and in
the case of the Maryland Property, Maryland Loan Guarantor) acknowledges and agrees that twenty
(20) days’ prior written notice of the time and place of any public sale of the Account Collateral
or any other intended disposition thereof shall be reasonable and sufficient notice within the
meaning of the UCC.



3.1.11 Transfers and Other Liens. Borrower (or in the case of the Maryland Property,
Maryland Loan Guarantor) agrees that it will not (i) sell or otherwise dispose of any of the
Account Collateral or (ii) create or permit to exist any Lien upon or with respect to all or any of
the Account Collateral, except for the Lien granted to Lender under this Agreement.



3.1.12 Reasonable Care. Beyond the exercise of reasonable care in the custody thereof,
Lender shall have no duty as to any Account Collateral in its possession or control as agent
therefor or bailee thereof or any income thereon or the preservation of rights against any person
or otherwise with respect thereto. Lender shall be deemed to have exercised reasonable care in the
custody and preservation of the Account Collateral in its possession if the Account Collateral is
accorded treatment substantially equal to that which Lender accords its own property, it being
understood that Lender shall not be liable or responsible for any loss or damage to any of the
Account Collateral, or for any diminution in value thereof, by reason of the act or omission of
Lender, its Affiliates, agents, employees or bailees, except to the extent that such loss or damage
results from Lender’s gross negligence or willful misconduct. In no event shall Lender be liable
either directly or indirectly for losses or delays resulting from any event which may be the basis
of an Excusable Delay, computer malfunctions, interruption of communication facilities, labor
difficulties or other causes beyond Lender’s reasonable control or for indirect, special or
consequential damages except to the extent of Lender’s gross negligence or willful misconduct.
Notwithstanding the foregoing, Borrower (or in the case of the Maryland Property, Maryland Loan
Guarantor) acknowledges and agrees that (i) Lender does not have custody of the Account Collateral,
(ii) Cash Management Bank has custody of the Account Collateral, (iii) the initial Cash Management
Bank was chosen by Borrower and (iv) Lender has no obligation or duty to supervise Cash Management
Bank or to see to the safe custody of the Account Collateral.



3.1.13 Lender’s Liability.



(a) Lender shall be responsible for the performance only of such duties with respect to the
Account Collateral as are specifically set forth in this Section 3.1 or elsewhere in the
Loan Documents, and no other duty shall be implied from any provision hereof. Lender shall not be
under any obligation or duty to perform any act with respect to the Account Collateral which would
cause it to incur any expense or liability or to institute or defend any suit in respect hereof, or
to advance any of its own monies. Borrower (and in the case of the Maryland Property, Maryland
Loan Guarantor) shall indemnify and hold harmless Lender, its employees and officers, from and
against any loss, cost or damage (including, without limitation, reasonable attorneys’
fees and disbursements) incurred by Lender in connection with the transactions contemplated
hereby with respect to the Account Collateral except as such may be caused by the gross negligence
or willful misconduct of Lender, its employees, officers or agents.


 


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(b) Lender shall be protected in acting upon any notice, resolution, request, consent, order,
certificate, report, opinion, bond or other paper, document or signature believed by it in good
faith to be genuine, and, in so acting, it may be assumed that any person purporting to give any of
the foregoing in connection with the provisions hereof has been duly authorized to do so. Lender
may consult with counsel, and the opinion of such counsel shall be full and complete authorization
and protection in respect of any action taken or suffered by it hereunder and in good faith in
accordance therewith.



3.1.14 Continuing Security Interest. This Agreement shall create a continuing security
interest in the Account Collateral and shall remain in full force and effect until payment in full
of the Indebtedness. Upon payment in full of the Indebtedness, this security interest shall
automatically terminate without further notice from any party and Borrower shall be entitled to the
return of such of the Account Collateral as shall not have been sold or otherwise applied pursuant
to the terms hereof, and Lender shall execute such instruments and documents as may be reasonably
requested by Borrower to evidence such termination and the release and return of the Account
Collateral to Borrower.




IV. REPRESENTATIONS AND WARRANTIES



4.1 Borrower Representations. Borrower (and in the case of the Maryland Property, Maryland
Loan Guarantor) represents and warrants as of the Closing Date that:



4.1.1 Organization. Each Borrower and Maryland Loan Guarantor is a limited liability
company and has been duly organized and is validly existing and in good standing pursuant to the
laws of the State of Delaware with requisite power and authority to own its properties and to
transact the businesses in which it is now engaged. Guarantor is a corporation and has been duly
organized and is validly existing and in good standing pursuant to the laws of the State of
Delaware with requisite power and authority to own its properties and to transact the businesses in
which it is now engaged. Master Lessee is a corporation and has been duly organized and is validly
existing and in good standing pursuant to the laws of the State of Georgia with requisite power and
authority to own its properties and to transact the businesses in which it is now engaged. Each
Borrower, Maryland Loan Guarantor, Guarantor and Master Lessee has duly qualified to do business
and is in good standing in each jurisdiction where it is required to be so qualified in connection
with its properties, businesses and operations. Each of Borrower, Maryland Loan Guarantor and
Guarantor possesses all material rights, licenses, permits and authorizations, governmental or
otherwise, necessary to entitle it to own its properties and to transact the businesses in which it
is now engaged, and the sole business of Borrower (or in the case of the Maryland Property,
Maryland Loan Guarantor) is the ownership of the Property. The organizational structure of
Borrower is accurately depicted by the schematic diagram attached hereto as Exhibit K.
Neither Borrower nor Maryland Loan Guarantor shall not change its name, identity, corporate form or
structure or jurisdiction of organization unless it shall have given Lender thirty (30) days prior
written notice of any such
change and shall have taken all steps reasonably requested by Lender to grant, perfect, protect
and/or preserve the liens and security interest granted to Lender under the Loan Documents.


 


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4.1.2 Proceedings. Each of Borrower, Maryland Loan Guarantor, Guarantor and Master Lessee
has full power, and has taken all necessary action, to authorize the execution, delivery and
performance of the Loan Documents to which it is a party. The Loan Documents to which such Person
is a party have been duly executed and delivered by, or on behalf of, Borrower, Maryland Loan
Guarantor, Guarantor and Master Lessee, as applicable, and constitute legal, valid and binding
obligations of such Persons, as applicable, enforceable against such Persons, as applicable, in
accordance with their respective terms, subject only to applicable bankruptcy, insolvency and
similar laws affecting rights of creditors generally, and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at
law).



4.1.3 No Conflicts. The execution, delivery and performance of this Agreement and the
other Loan Documents by Borrower, Maryland Loan Guarantor, Guarantor and Master Lessee, as
applicable, will not conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien, charge or
encumbrance (other than pursuant to the Loan Documents) upon any of the property or assets of any
such Person pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement,
partnership agreement or other agreement or instrument to which any such Person is a party or by
which any of such Person’s property or assets is subject (unless consents from all applicable
parties thereto have been obtained), nor will such action result in any violation of the provisions
of any statute or any order, rule or regulation of any Governmental Authority, and any material
consent, approval, authorization, order, registration or qualification of or with any Governmental
Authority required for the execution, delivery and performance by Borrower, Maryland Loan Guarantor
and Guarantor of this Agreement, except for any violation that would not individually or in the
aggregate reasonably be expected to result in a Material Adverse Effect, or any other Loan
Documents has been obtained and is in full force and effect.



4.1.4 Litigation. Except as set forth on Schedule VI attached hereto, there are no
arbitration proceedings, governmental investigations, actions, suits or proceedings at law or in
equity by or before any Governmental Authority now pending or, to Borrower’s knowledge, threatened
against or affecting Borrower, Maryland Loan Guarantor, Guarantor, Master Lessee or any Individual
Property (other than (a) claims for nonpayment brought by Borrower, Maryland Loan Guarantor,
Guarantor or Master Lessee as plaintiff, and (b) claims (i) which are being covered by insurance,
(ii) which are being defended by the relevant insurance company and (iii) as to which Borrower (or
in the case of the Maryland Property, Maryland Loan Guarantor) has not received a notice from such
insurance company that the claim exceeds the total amount of insurance coverage with respect to
such claim, provided that none of such unscheduled claims could reasonably be expected to
individually or in the aggregate to have a Material Adverse Effect if adversely determined). The
actions, suits or proceedings identified on Schedule VI, if determined against Borrower,
Maryland Loan Guarantor, Guarantor, Master Lessee or the applicable Individual Property or
Individual Properties, would not materially and adversely affect the condition (financial or
otherwise) or business of any such Person or the condition or operation of any Individual Property.


 


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4.1.5 Agreements. The Master Lease and the Subleases constitute all of the agreements to
which Borrower or any of its Affiliates are party or are bound which are material to the ownership
and operation of any Individual Property other than the Master Lease. Neither Borrower nor
Maryland Loan Guarantor is a party to any agreement or instrument or subject to any restriction
which is reasonably likely to materially and adversely affect it or its business, properties or
assets, operations or condition, financial or otherwise. Neither Borrower nor Maryland Loan
Guarantor is in default in any material respect in the performance, observance or fulfillment of
any of the obligations, covenants or conditions contained in any agreement or instrument to which
it is a party or by which Borrower, Maryland Loan Guarantor or the Property is bound. Neither
Borrower nor Maryland Loan Guarantor has any material financial obligation (contingent or
otherwise) under any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it or the Property is otherwise bound, other than (a)
obligations constituting Permitted Debt which are incurred in the ordinary course of the ownership
and operation of the Property and (b) obligations under the Loan Documents and the Master Lease.
There are no prior sales, transfers or assignments of the Master Lease or any portion of the Rents
due and payable or to become due and payable which are presently outstanding following the funding
of the Loan, other than those being terminated or assigned to Lender concurrently herewith.



4.1.6 Title. Borrower (or in the case of the Maryland Property, the Maryland Loan
Guarantor) has good, marketable and insurable fee simple title to the Land and the Improvements,
free and clear of all Liens whatsoever except the Permitted Encumbrances, such other Liens as are
permitted pursuant to the Loan Documents and the Liens created by the Loan Documents. Borrower (or
in the case of the Maryland Property, the Maryland Loan Guarantor) has good and marketable title to
the remainder of the Property, free and clear of all Liens whatsoever except the Permitted
Encumbrances. The Security Instrument, when properly recorded in the appropriate records, together
with any Uniform Commercial Code financing statements required to be filed in connection therewith,
will create (i) a valid, perfected first mortgage lien on the Land and the Improvements, subject
only to Permitted Encumbrances and (ii) perfected security interests in and to, and perfected
collateral assignments of, all Personal Property (including the Leases) and any leases of equipment
from third parties, all in accordance with the terms thereof, in each case subject only to any
applicable Permitted Encumbrances. To Borrower’s knowledge, there are no claims for payment for
work, labor or materials affecting the Property which are or may become a lien prior to, or of
equal priority with, the Liens created by the Loan Documents other than the Permitted Encumbrances.
Borrower and Maryland Loan Guarantor represent and warrant that none of the Permitted Encumbrances
would individually or in the aggregate reasonably be expected to result in a Material Adverse
Effect as of the Closing Date and thereafter. Borrower (or in the case of the Maryland Property,
the Maryland Loan Guarantor) shall preserve its right, title and interest in and to the Property
for so long as the Notes remains outstanding and will warrant and defend same and the validity and
priority of the Lien hereof from and against any and all claims whatsoever other than the Permitted
Encumbrances.



4.1.7 No Bankruptcy Filing. None of Borrower, Maryland Loan Guarantor, Guarantor or Master
Lessee is contemplating either the filing of a petition by it under any state or federal bankruptcy
or insolvency laws or the liquidation of all or a major portion of such entity’s assets or
property, to Borrower’s knowledge, no Person is contemplating the filing of any such
petition against it or against Borrower, Maryland Loan Guarantor, Guarantor or Master Lessee, as
applicable.


 


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4.1.8 Full and Accurate Disclosure. No statement of material fact made by Borrower or
Maryland Loan Guarantor in this Agreement or in any of the other Loan Documents contains any untrue
statement of a material fact or omits to state any material fact necessary to make statements
contained herein or therein not misleading. There is no fact presently known to Borrower or
Maryland Loan Guarantor which has not been disclosed which could reasonably be expected to have a
Material Adverse Effect.



4.1.9 All Property. The Property constitutes all of the real property, personal property,
equipment and fixtures currently (i) owned or leased by Borrower (or in the case of the Maryland
Property, the Maryland Loan Guarantor) and (ii) used in the operation of the business located on
the Property, other than the Excluded Personal Property.



4.1.10 No Plan Assets.



(a) Neither Borrower nor Maryland Loan Guarantor maintains an employee benefit plan as defined
by Section 3(3) of ERISA, which is subject to Title IV of ERISA, and (i) to Borrower’s knowledge,
neither Borrower nor Maryland Loan Guarantor has incurred or expect to incur any material liability
which is or remains unsatisfied for any taxes or penalties with respect to any “employee benefit
plan,” within the meaning of Section 3(3) of ERISA, or any “plan,” within the meaning of Section
4975(e)(1) of the Internal Revenue Code or any other benefit plan (other than a multiemployer plan)
maintained, contributed to, or required to be contributed to by Borrower (or in the case of the
Maryland Property, the Maryland Loan Guarantor) or by any entity that is under common control with
Borrower or Maryland Loan Guarantor within the meaning of ERISA Section 4001(a)(14) (a
“Plan”) or any plan that would be a Plan but for the fact that it is a multiemployer plan
within the meaning of ERISA Section 3(37); and (ii) Borrower (or in the case of the Maryland
Property, the Maryland Loan Guarantor) has made and shall continue to make when due all required
contributions to all such Plans, if any. Each such Plan has been and will be administered in
compliance with its terms and the applicable provisions of ERISA, the Internal Revenue Code, and
any other applicable federal or state law; and no action shall be taken or fail to be taken that
would result in the disqualification or loss of tax-exempt status of any such Plan intended to be
qualified and/or tax exempt; and



(b) Neither Borrower nor Maryland Loan Guarantor is an employee benefit plan, as defined in
Section 3(3) of ERISA, subject to Title I of ERISA, none of the assets of Borrower or Maryland Loan
Guarantor constitutes or will constitute plan assets of one or more such plans within the meaning
of 29 C.F.R. Section 2510.3-101 and neither Borrower nor Maryland Loan Guarantor is a governmental
plan within the meaning of Section 3(32) of ERISA and transactions by or with Borrower and Maryland
Loan Guarantor are not subject to state statutes regulating investment of, and fiduciary
obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA
or Section 4975 of the Code currently in effect, which prohibit or otherwise restrict the
transactions contemplated by this Agreement.


 


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4.1.11 Compliance. To Borrower’s knowledge, Borrower, Maryland Loan Guarantor and the
Property and the use thereof comply in all material respects with all applicable Legal
Requirements, including, without limitation, building and zoning ordinances and codes. To
Borrower’s knowledge, neither Borrower nor Maryland Loan Guarantor is in default or in violation of
any order, writ, injunction, decree or demand of any Governmental Authority. To Borrower’s
knowledge, there has not been committed by Borrower or Maryland Loan Guarantor any act or omission
affording the federal government or any other Governmental Authority the right of forfeiture as
against the Property or any part thereof or any monies paid in performance of Borrower’s or
Maryland Loan Guarantor’s obligations under any of the Loan Documents.



4.1.12 Financial Information. To Borrower’s knowledge, all financial data including,
without limitation, the statements of cash flow and income and operating expense, that have been
delivered by or on behalf of Borrower to Lender in respect of the Property (i) are true, complete
and correct in all material respects, (ii) fairly represent the financial condition of the Property
as of the date of such reports and (iii) to the extent prepared or audited by an independent
certified public accounting firm, have been prepared in accordance with GAAP throughout the periods
covered, except as disclosed therein. To Borrower’s knowledge, neither Borrower nor Maryland Loan
Guarantor has any contingent liabilities, liabilities for taxes, unusual forward or long-term
commitments or unrealized or anticipated losses from any unfavorable commitments that are known to
Borrower and could reasonably be expected to have a Material Adverse Effect. Since the date of
such financial statements, there has been no material adverse change in the financial condition,
operations or business of Borrower or Maryland Loan Guarantor from that set forth in said financial
statements.



4.1.13 Condemnation. No Taking is pending or, to Borrower’s knowledge, is contemplated
with respect to all or any portion of the Property. No Taking is pending or, to Borrower’s
knowledge, is contemplated for the relocation of roadways providing access to the Property.



4.1.14 Federal Reserve Regulations. None of the proceeds of the Loan will be used for the
purpose of purchasing or carrying any “margin stock” as defined in Regulation U, Regulation X or
Regulation T or for the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry “margin stock” or for any other purpose which might constitute this
transaction a “purpose credit” within the meaning of Regulation U or Regulation X. As of the
Closing Date, neither Borrower nor Maryland Loan Guarantor owns any “margin stock.”



4.1.15 Utilities and Public Access. Each Individual Property has rights of access to one
or more public ways, either directly or through a recorded easement set forth in, and insured
under, the Title Policy. Each Individual Property is served by water, sewer, sanitary sewer and
storm drain facilities adequate to service the Property for its intended uses. To Borrower’s
knowledge, all utilities necessary to the existing use of the Property are located either in the
public right-of-way abutting the Property (which are connected so as to serve the Property without
passing over other property) or in recorded easements serving the Property and such easements are
set forth in and insured by the Title Policy. All roads necessary for the use of the each
Individual Property for its current purposes have been completed and, if necessary, dedicated to
public use.


 


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4.1.16 Not a Foreign Person. Neither Borrower nor Maryland Loan Guarantor is a foreign
person within the meaning of §1445(f)(3) of the Code.



4.1.17 Separate Lots. Each Individual Property is comprised of one (1) or more contiguous
parcels which constitute a separate tax lot or lots and does not constitute or include a portion of
any other tax lot not a part of such Individual Property.



4.1.18 Subdivision. The Individual Properties comply in all material respects with all
applicable subdivision laws, ordinances and regulations.



4.1.19 Enforceability. The Loan Documents are not subject to any existing right of
rescission, set-off, counterclaim or defense by Borrower or Maryland Loan Guarantor, including the
defense of usury, nor would the operation of any of the terms of the Loan Documents, or the
exercise of any right thereunder, render the Loan Documents unenforceable (subject to applicable
bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject as to
enforceability, to general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law)), and neither Borrower nor Maryland Loan Guarantor has asserted any
right of rescission, set-off, counterclaim or defense with respect thereto.



4.1.20 Assessments. To Borrower’s knowledge, there are no pending or proposed special or
other assessments for public improvements or otherwise affecting the Property, nor are there any
contemplated improvements to the Property that may result in such special or other assessments.



4.1.21 Insurance. Borrower has obtained and, to the extent requested by Lender, has
delivered to Lender evidence of all insurance policies required under this Agreement, reflecting
the insurance coverages, amounts and other requirements set forth in this Agreement. Borrower has
not, and to Borrower’s knowledge no Person has, done by act or omission anything which would impair
the coverage of any such policy.



4.1.22 Use of Property. Each Individual Property is used primarily as a distribution
facility, other than the Individual Property located in Englewood, Colorado, which Individual
Property is used by the Borrower for office purposes.



4.1.23 Certificate of Occupancy; Licenses. To Borrower’s knowledge, all certifications,
permits, licenses and approvals, including without limitation, certificates of completion and
occupancy permits required of Borrower (or in the case of the Maryland Property, the Maryland Loan
Guarantor) for the legal use, occupancy and operation of each Individual Property for its current
use as a distribution facility (or, in the case of the Individual Property located in Englewood,
Colorado, an office building) (collectively, the “Licenses”), have been obtained and are in
full force and effect. Borrower (or in the case of the Maryland Property, the Maryland Loan
Guarantor) shall keep and maintain all Licenses necessary for the operation of each Individual
Property in accordance with its current use as aforesaid. To Borrower’s knowledge, the use being
made of each Individual Property is in conformity with the certificate of occupancy issued for such
Individual Property.


 


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4.1.24 Flood Zone. None of the Improvements on the Property are located in an area as
identified by the Federal Emergency Management Agency as an area having special flood
hazards, except as identified on the flood certifications delivered to Lender prior to the date
hereof, and Borrower has obtained the insurance required under Article VI with respect to
any Improvements located in any such special flood hazards.



4.1.25 Physical Condition. To Borrower’s knowledge and except as expressly disclosed in
the Physical Conditions Reports, the Property, including, without limitation, all buildings,
Improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC
systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and
doors, landscaping, irrigation systems and all structural components, are in good condition, order
and repair in all material respects; to Borrower’s knowledge and except as expressly disclosed in
the Physical Conditions Reports, there exists no structural or other material defects or damages in
or to the Property, whether latent or otherwise, and neither Borrower nor Maryland Loan Guarantor
has received any written notice from any insurance company or bonding company of any defects or
inadequacies in the Property, or any part thereof, which would adversely affect the insurability of
the same or cause the imposition of extraordinary premiums or charges thereon or of any termination
or threatened termination of any policy of insurance or bond.



4.1.26 Boundaries. Except as set forth in and insured pursuant to the Title Policy, to
Borrower’s knowledge and in reliance on the Surveys, (a) all of the Improvements lie wholly within
the boundaries and building restriction lines of the Land relating to the applicable Individual
Property, (b) no improvements on adjoining properties encroach upon the Land, and (c) no easements
or other encumbrances upon the Land encroach upon any of the Improvements.



4.1.27 Leases and Subleases. The Property is not subject to any Leases other than the
Master Lease. To Borrower’s knowledge, the Property is not subject to any Subleases other than the
Subleases set forth on Schedule IV attached hereto. No Person has any possessory interest
in the Property or right to occupy the same except under and pursuant to the provisions of the
Master Lease and the Subleases. The Master Lease and, to Borrower’s knowledge, the current
Subleases are in full force and effect and to Borrower’s knowledge, there are no material defaults
thereunder by either party (other than as expressly disclosed on Schedule IV or in the
estoppel certificates, if any, delivered to Lender in connection with the closing of the Loan) and
there are no conditions that, with the passage of time or the giving of notice, or both, would
constitute material defaults thereunder. No Master Lease Rent has been paid more than one (1)
month in advance of its due date, except as disclosed in the Master Lease SNDA delivered to Lender
in connection with the closing of the Loan. There has been no prior sale, transfer or assignment,
hypothecation or pledge by Borrower (or in the case of the Maryland Property, the Maryland Loan
Guarantor) or Master Lessee of the Master Lease or of the Master Lease Rents received therein,
which will be outstanding following the funding of the Loan, other than those being assigned to
Lender concurrently herewith. To Borrower’s knowledge, no Tenant under any Sublease has a right or
option pursuant to such Sublease or otherwise to purchase all or any part of the Property of which
the leased premises are a part. Master Lessee does not have a right or option pursuant to the
Master Lease or otherwise to purchase all or any part of the Property of which the leased premises
are a part.


 


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4.1.28 Filing and Recording Taxes. To Borrower’s knowledge, all transfer taxes, deed
stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid
by any Person under applicable Legal Requirements currently in effect in connection with the
transfer of the Property to Borrower (or in the case of the Maryland Property, the Maryland Loan
Guarantor) have been paid and the granting and recording of the Security Instrument and the UCC
financing statements required to be filed in connection with the Loan. To Borrower’s knowledge,
all mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any
Person under applicable Legal Requirements currently in effect in connection with the execution,
delivery, recordation, filing, registration, perfection or enforcement of any of the Loan
Documents, including, without limitation, the Security Instrument, have been paid, and, under
current Legal Requirements, the Security Instrument is enforceable against Borrower (or in the case
of the Maryland Property, the Maryland Loan Guarantor) in accordance with its terms by Lender (or
any subsequent holder thereof) subject only to applicable bankruptcy, insolvency and similar laws
affecting rights of creditors generally, and subject as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or at law.



4.1.29 Single Purpose Entity/Separateness.



(a) Until the Indebtedness has been paid in full, Borrower and Maryland Loan Guarantor hereby
represent, warrant and covenant that Borrower, Maryland Loan Guarantor and each other SPE Entity
is, shall be, and shall continue to be, a Single Purpose Entity.



(b) To Borrower’s knowledge, all of the assumptions made in the Non-Consolidation Opinion,
including, but not limited to, any exhibits attached thereto, are true and correct in all respects
and any assumptions made in any subsequent non-consolidation opinion delivered in connection with
the Loan Documents (an “Additional Non-Consolidation Opinion”), including, but not limited
to, any exhibits attached thereto, will have been and shall be true and correct in all respects.
Each of Borrower Maryland Loan Guarantor has complied and will comply with all of the assumptions
made with respect to it in the Non-Consolidation Opinion. Each of Borrower and Maryland Loan
Guarantor will have complied and will comply with all of the assumptions made with respect to it in
any Additional Non-Consolidation Opinion. Each entity other than Borrower and Maryland Loan
Guarantor with respect to which an assumption shall be made in any Additional Non-Consolidation
Opinion will have complied and will comply with all of the assumptions made with respect to it in
any Additional Non-Consolidation Opinion.



4.1.30 Illegal Activity. No portion of the Property has been or will be purchased with
proceeds of any illegal activity.



4.1.31 No Change in Facts or Circumstances; Disclosure. To Borrower’s knowledge , all
financial statements submitted by Borrower in connection with the Loan are accurate, complete and
correct in all material respects. All other material written information, reports, certificates
and other documents submitted by Borrower to Lender in connection with the Loan are, to Borrower’s
knowledge, accurate, complete and correct in all material respects except as would not have a
Material Adverse Effect. Except with respect to such representations and warranties contained in
this Agreement or in any other Loan Document which are qualified as being made to Borrower’s
knowledge, all representations and warranties made by Borrower or Maryland Loan Guarantor in this
Agreement or in any other Loan Document, are accurate, complete and correct in all material
respects except as would not have a Material Adverse Effect.
There has been no material adverse change known to Borrower in any condition, fact, circumstance or
event that would make any such information inaccurate, incomplete or otherwise misleading in any
material respect or that otherwise materially and adversely affects the Property or the business
operations or the financial condition of Borrower or Maryland Loan Guarantor.


 


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4.1.32 Tax Filings. To the extent required by applicable law, each of Borrower and
Maryland Loan Guarantor has filed (or has obtained effective extensions for filing) all federal,
state and local tax returns required to be filed and has paid or made adequate provision for the
payment of all federal, state and local taxes, charges and assessments payable by Borrower and
Maryland Loan Guarantor.



4.1.33 Solvency/Fraudulent Conveyance. Neither Borrower nor Maryland Loan Guarantor (a)
has entered into the transaction contemplated by this Agreement or any Loan Document with the
actual intent to hinder, delay, or defraud any creditor and (b) has received reasonably equivalent
value in exchange for its obligations under the Loan Documents. After giving effect to the Loan,
the fair saleable value of Borrower’s and Maryland Loan Guarantor’s assets exceeds and will,
immediately following the making of the Loan, exceed Borrower’s and Maryland Loan Guarantor’s total
liabilities, including, without limitation, subordinated, unliquidated, disputed and contingent
liabilities. The fair saleable value of Borrower’s and Maryland Loan Guarantor’s assets is and
will, immediately following the making of the Loan, be greater than Borrower’s and Maryland Loan
Guarantor’s probable liabilities, including the maximum amount of its contingent liabilities on its
Debts as such Debts become absolute and matured. Borrower’s and Maryland Loan Guarantor’s assets
do not and, immediately following the making of the Loan will not, constitute unreasonably small
capital to carry out its business as conducted or as proposed to be conducted. Neither Borrower
nor Maryland Loan Guarantor intends to, and does not believe that it will, incur Debt and
liabilities (including contingent liabilities and other commitments) beyond its ability to pay such
Debt and liabilities as they mature (taking into account the timing and amounts of cash to be
received by it and the amounts to be payable on or in respect of its obligations).



4.1.34 Investment Company Act. Neither Borrower nor Maryland Loan Guarantor is (a) an
investment company or a company Controlled by an investment company, within the meaning of the
Investment Company Act of 1940, as amended, (b) a holding company or a subsidiary company of a
holding company or an affiliate of either a holding company or a subsidiary company within the mean
of the Public Utility Holding Company Act of 1935, as amended or (c) subject to any other federal
or state law or regulation which purports to restrict or regulate its ability to borrow money.



4.1.35 Labor. No organized work stoppage or labor strike is pending or, to Borrower’s
knowledge, threatened by employees and other laborers at the Property. Neither Borrower nor
Maryland Loan Guarantor (i) is involved in or, to Borrower’s knowledge, threatened with, any labor
dispute, grievance or litigation relating to labor matters involving any employees and other
laborers at the Property, including, without limitation, violation of any federal, state or local
labor, safety or employment laws (domestic or foreign) and/or charges of unfair labor practices or
discrimination complaints which, if adversely determined, would have a Material Adverse Effect,
(ii) has not engaged in any unfair labor practices within the meaning of the National Labor
Relations Act or the Railway Labor Act or (iii) is not a party to, or bound by,
any collective bargaining agreement or union contract with respect to employees and other laborers
at the Property and no such agreement or contract is currently being negotiated by Borrower or
Maryland Loan Guarantor.


 


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4.1.36 Brokers. Except for Broker, neither Borrower (or Maryland Loan Guarantor) nor
Lender has dealt with any broker or finder with respect to the transactions contemplated by the
Loan Documents, and neither party has done any acts, had any negotiations or conversations, or made
any agreements or promises which will in any way create or give rise to any obligation or liability
for the payment by either party of any brokerage fee, charge, commission or other compensation to
any Person with respect to the transactions contemplated by the Loan Documents. Each of Borrower
and Maryland Loan Guarantor covenants and agrees that it shall pay as and when due any and all
brokerage fees, charges, commissions or other compensation or reimbursement due to Broker with
respect to the transactions contemplated by the Loan Documents. Borrower, Maryland Loan Guarantor
and Lender shall each indemnify and hold harmless the other from and against any loss, liability,
cost or expense, including any judgments, attorneys’ fees, or costs of appeal, incurred by the
other party and arising out of or relating to any breach or default by the indemnifying party of
its representations, warranties and/or agreements set forth in this Section 4.1.36. The
provisions of this Section 4.1.36 shall survive the expiration and termination of this
Agreement and the payment of the Indebtedness.



4.1.37 No Other Debt. Neither Borrower nor Maryland Loan Guarantor has borrowed or
received debt financing that has not been heretofore repaid in full, other than the Permitted Debt.



4.1.38 Taxpayer Identification Number. Borrower’s and Maryland Loan Guarantor’s Federal
taxpayer identification number is as set forth on Schedule VIII.



4.1.39 Compliance with Anti-Terrorism, Embargo and Anti-Money Laundering Laws. (i) None of
the Borrower, Master Lessee, Maryland Loan Guarantor or any Guarantor or any Person who owns any
equity interest in or Controls any of such listed Persons currently is identified on the OFAC List
or otherwise qualifies as a Prohibited Person, and (ii) none of Borrower, Maryland Loan Guarantor
or Guarantor is in violation of any Legal Requirements relating to anti-money laundering or
anti-terrorism, including, without limitation, Legal Requirements related to transacting business
with Prohibited Persons or the requirements of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, U.S. Public Law 107-56,
and the related regulations issued thereunder, including temporary regulations, all as amended from
time to time. To Borrower’s knowledge, no Tenant currently is identified on the OFAC List or
otherwise qualifies as a Prohibited Person, and no Tenant is owned or Controlled by a Prohibited
Person.



4.1.40 Rights of First Refusal or First Offer to Lease or Purchase. No Person, whether
pursuant to a Lease or a Sublease or otherwise has a right of first refusal, right of first offer
or other right or option pursuant to such Lease or Sublease or otherwise to lease or purchase or to
restrict or impose requirements upon the lease or purchase of all or any part of any Individual
Property.


 


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4.2 Survival of Representations. Borrower and Maryland Loan Guarantor agree that all of
the representations and warranties of Borrower and Maryland Loan Guarantor set forth in Section
4.1 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long
as any amount remains owing to Lenders under this Agreement or any of the other Loan Documents by
Borrower or Maryland Loan Guarantor (it being understood, however, that except as otherwise
provided in this Agreement or any of the other Loan Documents, such representations and warranties
shall be true and correct only as of the date hereof). All representations, warranties, covenants
and agreements made in this Agreement or in the other Loan Documents by Borrower and Maryland Loan
Guarantor shall be deemed to have been relied upon by Lender notwithstanding any investigation
heretofore or hereafter made by Lender or on its behalf.



4.3 Borrower’s or Maryland Loan Guarantor’s Knowledge. Wherever in this Agreement a
representation and warranty is made to Borrower’s knowledge (and variations thereon used herein,
including an Individual Borrower’s knowledge), or to the knowledge of Borrower (and variations
thereon used herein, including to the knowledge of an Individual Borrower, such representation and
warranty shall also be deemed to be limited to Maryland Loan Guarantor’s, and such knowledge shall
mean the actual (as opposed to constructive or imputed) knowledge of any of the following
individuals after reasonable inquiry under the circumstances of the applicable representation and
warranty: Gary Cummings, Vice President of Real Estate and Doug Goforth, Controller, which Persons
Borrower and Maryland Loan Guarantor hereby represent and warrant are in a position to have
meaningful knowledge with respect to the subject matter of such representations and warranties.




V. BORROWER AND MARYLAND LOAN GUARANTOR COVENANTS



5.1 Affirmative Covenants. From the Closing Date and until payment and performance in full
of all obligations of Borrower and Maryland Loan Guarantor under the Loan Documents or the earlier
release of the Liens of the Security Instrument encumbering the Property (and all related
obligations) in accordance with the terms of this Agreement and the other Loan Documents, each of
Borrower and Maryland Loan Guarantor hereby covenants and agrees with Lenders that:



5.1.1 Performance by Borrower and Maryland Loan Guarantor. Each of Borrower and Maryland
Loan Guarantor shall in a timely manner observe, perform and fulfill each and every covenant, term
and provision of each Loan Document executed and delivered by, or applicable to, it, and shall not
enter into or otherwise suffer or permit any amendment, waiver, supplement, termination or other
modification of any Loan Document executed and delivered by, or applicable to, it, as applicable,
without the prior written consent of Lender.


 


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5.1.2 Existence; Compliance with Legal Requirements; Insurance. Subject to Borrower’s (or
in the case of the Maryland Property, Maryland Loan Guarantor’s) right of contest pursuant to
Section 7.3, Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor’s)
shall at all times comply and cause Master Lessee and the Property to be in compliance with all
Legal Requirements applicable to Borrower, Maryland Loan Guarantor, Master Lessee and/or the
Property and/or the uses permitted upon the Property. Borrower (or in the case of the Maryland
Property, Maryland Loan Guarantor’s) shall do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its existence, rights,
licenses, permits and franchises necessary to comply with all Legal Requirements applicable to it
and the Property. There shall never be committed by Borrower or Maryland Loan Guarantor, and
neither Borrower nor Maryland Loan Guarantor shall knowingly permit Master Lessee to commit any act
or omission affording the federal government or any state or local government the right of
forfeiture as against the Property or any part thereof or any monies paid in performance of
Borrower’s or Maryland Loan Guarantor’s obligations under any of the Loan Documents. Each of
Borrower and Maryland Loan Guarantor hereby covenants and agrees not to commit, knowingly permit or
suffer to exist any act or omission affording such right of forfeiture. Borrower (or in the case
of the Maryland Property, Maryland Loan Guarantor’s) shall at all times maintain, preserve and
protect all franchises and trade names, and preserve all the remainder of its property used in the
conduct of its business and shall keep or cause the Master Lessee to keep the Property in good
working order and repair, and from time to time make, or cause to be made, all reasonably necessary
repairs, renewals, replacements, betterments and improvements thereto, all as more fully set forth
in the Security Instrument. Borrower (or in the case of the Maryland Property, Maryland Loan
Guarantor’s) shall keep the Property insured at all times to such extent and against such risks,
and maintain liability and such other insurance, as is more fully set forth in this Agreement.



5.1.3 Litigation. Borrower shall give prompt written notice to Lender of any litigation or
governmental proceedings pending or, to Borrower’s knowledge, threatened in writing against
Borrower, Maryland Loan Guarantor, Master Lessee or the Property which, if determined adversely,
would reasonably be expected to have a Material Adverse Effect.



5.1.4 Single Purpose Entity. Each of Borrower, Maryland Loan Guarantor and each other SPE
Entity has been since the date of its formation and shall remain a Single Purpose Entity.



(a) Each of Borrower, Maryland Loan Guarantor and each other SPE Entity shall continue to
maintain its own deposit account or accounts, separate from those of any Affiliate, with commercial
banking institutions. None of the funds of Borrower, Maryland Loan Guarantor or any other SPE
Entity will be diverted to any other Person or for other than business uses of Borrower, Maryland
Loan Guarantor or such other SPE Entity, as applicable, nor will such funds be commingled with the
funds of any other Affiliate.



(b) To the extent that Borrower, Maryland Loan Guarantor or any other SPE Entity shares the
same officers or other employees as any of Borrower, Maryland Loan Guarantor, any other SPE Entity
or their Affiliates, the salaries of and the expenses related to providing benefits to such
officers and other employees shall be fairly allocated among such entities, and each such entity
shall bear its fair share of the salary and benefit costs associated with all such common officers
and employees.


 


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(c) To the extent that Borrower, Maryland Loan Guarantor or any other SPE Entity jointly
contracts with any of Borrower, Maryland Loan Guarantor, any other SPE Entity or any of their
Affiliates, as applicable, to do business with vendors or service providers or to share overhead
expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each
such entity shall bear its fair share of such costs. To the extent that any of Borrower,
Maryland Loan Guarantor or any other SPE Entity contracts or does business with vendors or
service providers where the goods and services provided are partially for the benefit of any other
Person, the costs incurred in so doing shall be fairly allocated to or among such entities for
whose benefit the goods and services are provided, and each such entity shall bear its fair share
of such costs. All material transactions between (or among) Borrower, Maryland Loan Guarantor or
each other SPE Entity and any of their respective Affiliates shall be conducted on substantially
the same terms (or on more favorable terms for Borrower, Maryland Loan Guarantor or any other SPE
Entity, as applicable) as would be conducted with third parties.



(d) To the extent that Borrower, Maryland Loan Guarantor any other SPE Entity or any of their
Affiliates have offices in the same location, there shall be a fair and appropriate allocation of
overhead costs among them, and each such entity shall bear its fair share of such expenses.



(e) Borrower, Maryland Loan Guarantor and each other SPE Entity shall conduct its affairs
strictly in accordance with its organizational documents, and observe all necessary, appropriate
and customary corporate, limited liability company or partnership formalities, as applicable,
including, but not limited to, obtaining any and all members’ consents necessary to authorize
actions taken or to be taken, and maintaining accurate and separate books, records and accounts,
including, without limitation, payroll and intercompany transaction accounts.



(f) In addition, Borrower, Maryland Loan Guarantor and each other SPE Entity shall each: (i)
maintain books and records separate from those of any other Person; (ii) maintain its assets in
such a manner that it is not more costly or difficult to segregate, identify or ascertain such
assets; (iii) hold regular meetings of its board of directors, shareholders, partners or members,
as the case may be, and observe all other corporate, partnership or limited liability company, as
the case may be, formalities; (iv) hold itself out to creditors and the public as a legal entity
separate and distinct from any other entity; (v) prepare separate tax returns and financial
statements, or if part of a consolidated group, it will be shown as a separate member of such
group; (vi) transact all business with its Affiliates on an arm’s-length basis and pursuant to
enforceable agreements; (vii) conduct business in its name and use separate stationery, invoices
and checks; (viii) not commingle its assets or funds with those of any other Person; and (ix) not
assume, guarantee or pay the debts or obligations of any other Person.



5.1.5 Consents. If Borrower, Maryland Loan Guarantor or any other SPE Entity is a
corporation, the board of directors of such Person may not take any action requiring the unanimous
affirmative vote of one hundred percent (100%) of the members of the board of directors unless all
of the directors, including the Independent Directors, shall have participated in such vote. If
Borrower, Maryland Loan Guarantor or any other SPE Entity is a limited liability company, (a) if
such Person is managed by a board of managers, the board of managers of such Person may not take
any action requiring the unanimous affirmative vote of one hundred percent (100%) of the members of
the board of managers unless all of the managers, including the Independent Managers, shall have
participated in such vote, (b) if such Person is not managed by a board of managers, the members of
such Person may not take any action requiring the affirmative vote of one hundred percent (100%) of
the members of such Person unless all of the members, including the Independent Members, shall have
participated in such vote. An affirmative vote of one hundred percent (100%) of the directors,
board of managers or members,
as applicable, of Borrower, Maryland Loan Guarantor and any other SPE Entity shall be required to
(i) file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings or to
authorize Borrower, Maryland Loan Guarantor or any other SPE Entity to do so or (ii) file an
involuntary bankruptcy petition against any Affiliate. Furthermore, the formation documents of
Borrower, Maryland Loan Guarantor and each other SPE Entity shall expressly state that for so long
as the Loan is outstanding, none of Borrower, Maryland Loan Guarantor nor any other SPE Entity
shall be permitted to (i) dissolve, liquidate, consolidate, merge or sell all or substantially all
of the assets of Borrower, Maryland Loan Guarantor or any other SPE Entity, other than in
connection with the repayment of the Loan or (ii) engage in any other business activity and such
restrictions shall not be modified or violated for so long as the Loan is outstanding.


 


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5.1.6 Access to Property. Borrower (or in the case of the Maryland Property, Maryland Loan
Guarantor) shall permit agents, representatives and employees of Lender and the Rating Agencies to
inspect the Property or any part thereof during normal business hours on Business Days upon
reasonable advance notice.



5.1.7 Notice of Default. Borrower and Maryland Loan Guarantor shall promptly advise Lender
(a) of any event or condition that has or is likely to have a Material Adverse Effect and (b) of
the occurrence of any Default or Event of Default of which Borrower has knowledge.



5.1.8 Cooperate in Legal Proceedings. Borrower and Maryland Loan Guarantor shall cooperate
fully with Lender with respect to any proceedings before any court, board or other Governmental
Authority which would reasonably be expected to affect, in any material adverse way, the rights of
Lender hereunder or under any of the other Loan Documents and, in connection therewith, permit
Lender, at its election, to participate in any such proceedings which may have a Material Adverse
Effect.



5.1.9 Insurance.



(a) Borrower and Maryland Loan Guarantor shall cooperate with Lender in obtaining for Lender
the benefits of any Proceeds lawfully or equitably payable in connection with any Individual
Property and Lender shall be reimbursed for any actual out-of-pocket expenses incurred in
connection therewith (including reasonable attorneys’ fees and disbursements) out of such Proceeds.



(b) Borrower and Maryland Loan Guarantor shall comply with all Insurance Requirements and
shall not bring or keep or permit to be brought or kept any article upon any of the Property or
cause or permit any condition to exist thereon which would be prohibited by any Insurance
Requirement, or would invalidate insurance coverage required hereunder to be maintained by Borrower
or Maryland Loan Guarantor on or with respect to any part of the Property pursuant to Section
6.1.



5.1.10 Further Assurances; Severance of Notes and Mezzanine Loan.



(a) Borrower and Maryland Loan Guarantor shall execute and acknowledge (or cause to be
executed and acknowledged) and deliver to Lender all documents, and take all actions, reasonably
required by Lender from time to time to confirm the rights created or now or hereafter intended to
be created under this Agreement and the other Loan Documents and any
security interest created or purported to be created thereunder, to protect and further the
validity, priority and enforceability of this Agreement and the other Loan Documents, to subject to
the Loan Documents any property of Borrower (or in the case of the Maryland Property, Maryland Loan
Guarantor’s) intended by the terms of any one or more of the Loan Documents to be encumbered by the
Loan Documents, or otherwise carry out the purposes of the Loan Documents and the transactions
contemplated thereunder.


 


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(b) Borrower and Maryland Loan Guarantor each agrees that it shall, upon request, reasonably
cooperate with Lender in connection with any request by Lender to sever one or more of the Notes
into two (2) or more separate substitute notes in an aggregate principal amount equal to the
Principal Amount and to reapportion the Loan among such separate substitute notes, including,
without limitation, by executing and delivering to Lender new substitute notes to replace the
applicable Note or Notes, amendments to or replacements of existing Loan Documents to reflect such
severance and/or Opinions of Counsel with respect to such substitute notes, amendments and/or
replacements. Borrower shall bear no costs or expenses in connection with any such severance or
bifurcation, except that Borrower shall be responsible for one hundred percent (100%) of the costs
and expenses of Borrower and Lender with respect to the initial bifurcation of the Loan and the
related transfer of a portion of the Loan to Wachovia. Any such substitute notes may have varying
principal amounts and economic terms, provided, however, that (i) Borrower shall
not be required to incur, suffer or accept (except to a de minimis extent)) any greater obligations
or liabilities than as currently set forth in the Loan Documents, (ii) the maturity date of any
such substitute notes shall be the same as the scheduled Maturity Date of the Notes immediately
prior to the issuance of such substitute notes, (iii) the weighted average Interest Rate (as
defined in the Notes) for the term of the substitute notes shall not exceed the Interest Rate (as
defined in the Notes) under the Notes, whether before, after or during an Event of Default (it
being acknowledged that the Default Rate shall be applicable during the continuance of an Event of
Default); and (iv) the economics of the Loan, taken as a whole, shall not change in a manner which
is adverse to Borrower. Subject to the foregoing clauses (i) through (iv), upon the occurrence and
during the continuance of an Event of Default, Lender may apply payment of all sums due under such
substitute notes in such order and priority as Lender shall elect in its sole and absolute
discretion.



(c) Borrower, Maryland Loan Guarantor and Lender agree that, subject to the conditions set
forth in the last sentence of this Section 5.1.11(c), Lender may, at any time, elect to
reduce the mortgage debt on the Property and re-size the principal amount of the Loan and allocate
the reduced portion to one or more mezzanine loans (a “Mezzanine Loan”). In connection
with the foregoing, at Lender’s sole cost and expense, Borrower and Maryland Loan Guarantor each
agrees to (i) create one or more (as applicable) new single purpose entities which will become the
mezzanine borrower (a “Mezzanine Borrower”) and cause the Mezzanine Borrower and any
members of Mezzanine Borrower to enter into the documents deemed reasonably necessary by Lender to
evidence the Mezzanine Loan, including, without limitation, a promissory note and a mezzanine loan
agreement and such other documents reasonably required by Lender which are in a form and substance
reasonably satisfactory to Borrower and substantially similar to the Loan Documents (collectively,
the “Mezzanine Loan Documents”); (ii) cause Mezzanine Borrower to pledge the equity
interests in Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor); and (iii)
execute and deliver such documents and other agreements reasonably required by Lender to reduce the
amount of the mortgage debt
encumbering the Property, including, without limitation, an amendment to the Notes and the
other Loan Documents, an endorsement to the Title Policy reflecting a change in the insured amount
thereunder, legal opinions and other customary loan documentation. Borrower’s and Maryland Loan
Guarantor’s obligations under the foregoing provisions of this Section 5.1.11(c) are
subject to the condition that (A) Borrower shall bear no costs or expenses in connection therewith;
(B) Borrower shall not be required to incur, suffer or accept (except to a de minimis extent)) any
greater obligations or liabilities than as currently set forth in the Loan Documents; (C) the
maturity date of any mezzanine notes shall be the same as the scheduled Maturity Date of the Notes
immediately prior to the issuance of such mezzanine notes; (D) the weighted average Interest Rate
(as defined in the Notes) for the term of the mezzanine notes shall not exceed the Interest Rate
(as defined in the Notes) under the Notes, whether before, after or during an Event of Default (it
being acknowledged that the Default Rate shall be applicable during the continuance of an Event of
Default); and (E) the economics of the Loan, taken as a whole, shall not change in a manner which
is adverse to Borrower.


 


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5.1.11 Mortgage Taxes. Borrower and Maryland Loan Guarantor shall pay all taxes, charges,
filing, registration and recording fees, excises and levies payable with respect to the Notes or
the Liens created or secured by the Loan Documents, other than income, franchise and doing business
taxes imposed on Lender. In the case of the Maryland Property, such taxes shall include any
recordation taxes imposed by Title 12 of the Tax-Property Article of the Maryland Annotated Code
(1994 Replacement Volume), as amended from time to time, including any fines, penalties, interest
or similar charges arising from the non-payment thereof, which may now or hereafter become due and
payable in connection with the Security Instrument and shall be paid by Borrower and Maryland Loan
Guarantor as and when the same becomes due and payable, whether at the time of the recording of the
Security Instrument or any later date. Subject to the terms and provisions of Section 18.1 of
this Agreement, Borrower and Maryland Loan Guarantor shall, jointly and severally, indemnify,
defend and hold harmless Lender from and against any and all claims, charges, actions, suits,
proceedings, law suits, obligations, losses, damages, expenses or liabilities, including attorney’s
fees, suffered or incurred by Lender as a result of any assessment by any applicable governmental
authority with respect to recording fees and expenses. This indemnity shall be a continuing one
and shall be unaffected by repayment of the Loan.



5.1.12 Business and Operations. Borrower and Maryland Loan Guarantor shall each continue
to engage in the businesses presently conducted by it as and to the extent the same are necessary
for the ownership, maintenance, management and operation of the Property. Borrower (or in the case
of the Maryland Property, Maryland Loan Guarantor) shall qualify to do business and shall remain in
good standing under the laws of the State in which the Property is located to the extent required
for the ownership, maintenance, management and operation of the Property.



5.1.13 Title to the Property. Borrower (or in the case of the Maryland Property, Maryland
Loan Guarantor’s) shall warrant and defend (a) its title to each Individual Property and every part
thereof, subject only to Liens permitted hereunder (including Permitted Encumbrances) and (b) the
validity and priority of the Liens of the Security Instrument, the Assignment of Leases and this
Agreement on the Property, subject only to Liens permitted hereunder (including Permitted
Encumbrances), in each case against the claims of all Persons whomsoever. Borrower and Maryland
Loan Guarantor shall reimburse Lender for any losses, costs, damages or expenses
(including reasonable attorneys’ fees and court costs) incurred by Lender if an interest in any
Individual Property, other than as permitted hereunder, is claimed by another Person.


 


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5.1.14 Costs of Enforcement. In the event (a) that this Agreement or the Security
Instrument is foreclosed upon in whole or in part or that this Agreement or the Security Instrument
is put into the hands of an attorney for collection, suit, action or foreclosure, (b) of the
foreclosure of any security agreement prior to or subsequent to this Agreement encumbering any
Individual Property in which proceeding Lender is made a party, or a mortgage prior to or
subsequent to the Security Instrument encumbering any Individual Property in which proceeding
Lender is made a party, or (c) of the bankruptcy, insolvency, rehabilitation or other similar
proceeding in respect of Borrower, Maryland Loan Guarantor or any of their respective constituent
Persons or an assignment by Borrower, Maryland Loan Guarantor or any of their respective
constituent Persons for the benefit of its creditors, Borrower and Maryland Loan Guarantor, and
their successors or assigns, shall be chargeable with and agrees to pay all costs of collection and
defense, including reasonable attorneys’ fees and costs, incurred by Lender or Borrower in
connection therewith and in connection with any appellate proceeding or post-judgment action
involved therein, together with all required service or use taxes.



5.1.15 Estoppel Statements.



(a) Borrower and Maryland Loan Guarantor shall, from time to time, upon thirty (30) days’
prior written request from Lender, execute, acknowledge and deliver to the Lender, an Officer’s
Certificate, stating that this Agreement and the other Loan Documents are unmodified and in full
force and effect (or, if there have been modifications, that this Agreement and the other Loan
Documents are in full force and effect as modified and setting forth such modifications), stating
the amount of accrued and unpaid interest and the outstanding principal amount of the Notes and
containing such other information with respect to the Borrower, Maryland Loan Guarantor, the
Property and the Loan as Lender shall reasonably request. The estoppel certificate shall also
state that to Borrower’s knowledge either that no Event of Default exists hereunder or, if any
Event of Default shall exist hereunder, specify such Event Default and the steps being taken to
cure such Event of Default.



(b) Lender shall, from time to time, upon thirty (30) days’ prior written request from
Borrower, execute, acknowledge and deliver to the Borrower, a certificate executed by an officer of
Lender, stating that this Agreement and the other Loan Documents are unmodified and in full force
and effect (or, if there have been modifications, that this Agreement and the other Loan Documents
are in full force and effect as modified and setting forth such modifications), stating the amount
of accrued and paid interest and the outstanding balance of the Notes, and such other information
as Borrower may reasonably request. The estoppel certificate shall also state whether Lender has
issued any notice of an Event of Default.



5.1.16 Loan Proceeds. Borrower shall use the proceeds of the Loan received by it on the
Closing Date only for the purposes set forth in Section 2.1.4.



5.1.17 No Joint Assessment. Borrower (or in the case of the Maryland Property, Maryland
Loan Guarantor) shall not suffer, permit or initiate the joint assessment of the Property, (a) with
any other real property constituting a tax lot separate from the Property and (b) which
constitutes real property with any portion of the Property which may be deemed to constitute
personal property, or any other procedure whereby the lien of any taxes which may be levied against
such personal property shall be assessed or levied or charged to such real property portion of the
Property.


 


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5.1.18 No Further Encumbrances. Borrower shall do, or cause to be done, all things
necessary to keep and protect the Property and all portions thereof unencumbered from any Liens,
easements or agreements granting rights in or restricting the use or development of the Property,
except for (a) Permitted Encumbrances, (b) Liens permitted pursuant to the Loan Documents, (c)
Liens for Impositions prior to the imposition of any interest, charges or expenses for the
non-payment thereof and (d) any Liens permitted pursuant to the Leases.



5.1.19 Leases and Material Subleases. Borrower (or in the case of the Maryland Property,
Maryland Loan Guarantor) shall, promptly after receipt thereof, deliver to Lender a copy of any
notice received with respect to the Leases or any Material Subleases claiming that Borrower,
Maryland Loan Guarantor or Master Lessee, as applicable, is in default in the performance or
observance of any of the material terms, covenants or conditions of any of the Leases or Material
Subleases.



5.1.20 Management.



(a) Borrower(or in the case of the Maryland Property, Maryland Loan Guarantor) shall, and
shall use commercially reasonable efforts to cause any third party property manager under any
management agreement executed pursuant to Section 5.2.14 to, (i) promptly perform and/or
observe all of the covenants and agreements required to be performed and observed by it under such
management agreement and do all things necessary to preserve and to keep unimpaired its material
rights thereunder; (ii) promptly notify Lender of any “event of default” under such management
agreement of which it is aware; (iii) promptly deliver to Lender a copy of each financial
statement, capital expenditures plan, property improvement plan and any other notice, report and
estimate received by it under such management agreement; and (iv) enforce in a commercially
reasonable manner the performance and observance of all of the covenants and agreements required to
be performed and/or observed by it under such management agreement.



(b) If (a) an Event of Default has occurred and is continuing or (b) the third party property
manager under any management agreement executed pursuant to Section 5.2.14 shall become
insolvent, Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) shall, at
the request of Lender, terminate or cause Master Lessee to terminate such management agreement and
replace the third party property manager thereunder with a third party property manager approved by
Lender in accordance with Section 5.2.14.



5.1.21 Master Lease.



(a) Each Individual Property shall at all times be leased directly and exclusively by the
Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) to Master Lessee under
the Master Lease (and not to any other Person under the Master Lease or any replacement Master
Lease). Master Lessee shall be permitted to enter into Leases subject to and in accordance with
Section 8.7.


 


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(b) The Master Lease shall have a term extending at least through 2021.



(c) The Master Lease shall require Master Lessee to make payments of Master Lease Rent.
Pursuant to the Master Lease and the Master Lease Rent Payment Direction Letter (i) all Master
Lease Scheduled Rent shall at all times during the term of the Loan be made directly to the Holding
Account (the Master Lessee Base Rent portion of which shall be payable on a monthly basis), (ii)
other than during any Low LCR Cash Sweep Period or any period during which an Event of Default is
continuing, all Master Lease Variable Additional Rent shall be paid directly by Master Lessee to
the Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) or to the party
entitled to such sums, as specified in the Master Lease, and (iii) during any Low LCR Cash Sweep
Period or any period during which an Event of Default is continuing, all Master Lease Variable
Additional Rent shall be paid directly to the Holding Account, and none of the foregoing payments
of Master Lease Rent under clauses (i) and (iii) above shall be deemed made until such payment has
been deposited into the Holding Account. Lender shall pay all Master Lease Variable Additional
Rent directly to the Person having the right to receive such funds on or prior to the respective
due dates therefore, and shall promptly notify Borrower of such payments in accordance with the
terms of Section 3.1.6.



(d) The Master Lease shall require the Master Lessee to prepare applicable reports of expenses
and revenue in accordance with Article XI and to submit copies to Lender.



(e) Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) shall not
terminate the Master Lease or consent to the termination of the Master Lease without the prior
written consent of Lender. The Master Lease shall provide for the release of an Individual
Property therefrom only in connection with (i) a casualty or Taking in the circumstances set forth
therein, (ii) the payment of amounts with respect to such Individual Property as required by, and
the release of such Individual Property from the lien of the Security Instrument pursuant to, the
provisions of Section 2.3, (iii) the release of an Outparcel, or (iv) the substitution of
an Individual Property with a Replaced Property in accordance with the provisions of Section
2.3. Upon any such release of an Individual Property from the Master Lease, the Master Lease
will be amended to reduce the Master Lease Rent by the amount allocable to such Individual Property
(as specified in the Master Lease).



(f) Except for the Assignment of Leases and the Permitted Encumbrances, Borrower (or in the
case of the Maryland Property, Maryland Loan Guarantor) shall not shall pledge, transfer, sublease,
assign, mortgage, encumber, or allow to be encumbered its interest in the Master Lease or any
interest therein without the prior written consent of the Lender. The Borrower (or in the case of
the Maryland Property, Maryland Loan Guarantor) shall not permit and shall not consent to any
assignment by the Master Lessee of its interest in the Master Lease or its rights and interests
thereunder without the prior written consent of the Lender.



(g) Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) shall not,
without the prior written consent of Lender, (i) renew (other than pursuant to renewal rights
expressly set forth in the Master Lease), extend, release any Individual Property from (except in
connection with a Property Release, the release of an Outparcel, a Defeasance or a Substitution in
compliance with Sections 2.3.4, 2.3.5, 2.3.6 and 2.3.7 hereof),
terminate, waive any provisions of, reduce rents or other sums payable under, accept a surrender
of, or shorten the
term of, the Master Lease, (ii) waive any provisions of the Master Lease or (iii) amend or
modify any provision of the Master Lease in any material respect except as permitted in the last
sentence of Section 5.1.21(e).


 


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(h) The Master Lease shall be subject and subordinate to the Loan pursuant to the Master Lease
SNDA. Each of Borrower and Maryland Loan Guarantor agrees to terminate the Master Lease and/or
exercise and enforce its remedies under the Master Lease as directed by Lender following an event
of default under the Master Lease, as more particularly set forth in Section 2(B) of the Master
Lease SNDA.



(i) Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) shall (i)
promptly perform and/or observe all of the covenants and agreements required to be performed and
observed by it under the Master Lease and do all things necessary to preserve and to keep
unimpaired its material rights thereunder; (ii) promptly notify Lender of default by Master Lessee
under the Master Lease; (iii) promptly deliver to Lender a copy of each financial statement,
capital expenditures plan, property improvement plan and any other notice, report and estimate
received by it under the Master Lease; and (iv) enforce in a commercially reasonable manner the
performance and observance of all of the covenants and agreements required to be performed and/or
observed by the Master Lessee under the Master Lease.



5.2 Negative Covenants. From the Closing Date until payment and performance in full of all
obligations of Borrower and Maryland Loan Guarantor under the Loan Documents or the earlier release
of the Lien of this Agreement or the Security Instrument in accordance with the terms of this
Agreement and the other Loan Documents, Borrower and Maryland Loan Guarantor each covenants and
agrees with Lender that it will not do, directly or indirectly, any of the following:



5.2.1 Incur Debt. Incur, create or assume any Debt other than Permitted Debt or Transfer
or lease all or any part of the Property or any interest therein, except as permitted in the Loan
Documents;



5.2.2 Encumbrances. Incur, create or assume or permit the incurrence, creation or
assumption of any Debt secured by an interest in Borrower, Maryland Loan Guarantor, Master Lessee
or any other SPE Entity;



5.2.3 Engage in Different Business. Engage, directly or indirectly, in any business other
than that of entering into this Agreement and the other Loan Documents to which Borrower and/or
Maryland Loan Guarantor is a party and the use, ownership, management, leasing, renovation,
financing, development, operation and maintenance of the Property and activities related thereto;



5.2.4 Make Advances. Make advances or make loans to any Person, or hold any investments,
except as expressly permitted pursuant to the terms of this Agreement or any other Loan Document;



5.2.5 Partition. Partition any Individual Property;



5.2.6 Commingle. Commingle its assets with the assets of any of its Affiliates;


 


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5.2.7 Guarantee Obligations. Guarantee any obligations of any Person;



5.2.8 Transfer Assets. Transfer any asset other than in the ordinary course of business or
Transfer any interest in the Property except, in each case, as may be permitted hereby or in the
other Loan Documents;



5.2.9 Amend Organizational Documents. Amend or modify any of its organizational documents
without Lender’s consent, other than in connection with any Transfer permitted pursuant to
Article VIII or to reflect any change in capital accounts, contributions, distributions,
allocations or other provisions that do not and could not reasonably be expected to have a Material
Adverse Effect and provided that Borrower, Maryland Loan Guarantor and each other SPE
Entity each remain a Single Purpose Entity;



5.2.10 Dissolve. Dissolve, wind-up, terminate, liquidate, merge with or consolidate into
another Person, except as expressly permitted pursuant to this Agreement;



5.2.11 Bankruptcy. (i) File a bankruptcy or insolvency petition or otherwise institute
insolvency proceedings, (ii) dissolve, liquidate, consolidate, merge or sell all or substantially
all of Borrower’s or Maryland Loan Guarantor’s assets other than in connection with the repayment
of the Loan, (iii) engage in any other business activity or (iv) file or solicit the filing of an
involuntary bankruptcy petition against Borrower, Maryland Loan Guarantor, Master Lessee, Guarantor
or any SPE Entity without obtaining the prior consent of all of the directors, members or managers,
as applicable, of the applicable Person;



5.2.12 ERISA. Engage in any activity that would subject Borrower or Maryland Loan
Guarantor to regulation under ERISA or qualify it as an “employee benefit plan” (within the meaning
of Section 3(3) of ERISA) to which ERISA applies and Borrower’s and Maryland Loan Guarantor’s
assets do not and will not constitute plan assets within the meaning of 29 C.F.R. Section
2510.3-101;



5.2.13 Distributions. From and after the occurrence and during the continuance of an Event
of Default, make any distributions to or for the benefit of any of its partners or members or its
or their Affiliates;



5.2.14 Management.



(a) The Property is currently self-managed by Master Lessee. None of Borrower, Maryland Loan
Guarantor nor Master Lessee shall, without the prior written consent of Lender, which consent shall
not be unreasonably withheld or delayed (provided, if a Securitization shall have occurred,
Borrower obtains a Rating Agency Confirmation with respect to such action) retain a third party
property manager to manage the Property. Upon the retention of a third party property manager in
accordance with the foregoing sentence, Lender, and if a Securitization shall have occurred, the
Rating Agencies, shall have the right to approve any management agreement with such third party
property manager (which approval by Lender shall not be unreasonably withheld or delayed). Without
limitation to the foregoing, none of Borrower, Maryland Loan Guarantor nor Master Lessee shall
enter into a management agreement for the Property unless Lender shall have received a manager’s
consent and subordination of management agreement, executed by Borrower (or in the case of the
Maryland Property, Maryland Loan Guarantor),
Master Lessee and the applicable third party property manager, in form and substance
reasonably acceptable to Lender, pursuant to which the management agreement is collaterally
assigned to Lender and the third party property manager agrees that its rights under the management
agreement are subject and subordinate to the Loan;


 


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(b) With respect to any management agreement executed by Borrower (or in the case of the
Maryland Property, Maryland Loan Guarantor) or Master Lessee in accordance with Section
5.2.14(a), neither Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor)
nor Master Lessee shall, without the prior written consent of Lender, which consent shall not be
unreasonably withheld or delayed (provided, if a Securitization shall have occurred,
Borrower obtains a Rating Agency Confirmation with respect to such action): (i) materially modify,
change, supplement, alter or amend such management agreement or waive or release any of its right
and remedies under such management agreement or (ii) replace the third party property manager under
such management agreement with any Person which has not been approved in accordance with
Section 5.2.14(a);



5.2.15 Reserved.



5.2.16 Modify Account Agreement. Without the prior consent of Lender, which shall not be
unreasonably withheld, delayed or conditioned (and if a Securitization shall have occurred, a
Rating Agency Confirmation obtained by Borrower), execute any modification to the Account
Agreement;



5.2.17 Zoning Reclassification. Without the prior written consent of Lender, (a) initiate
or consent to any zoning reclassification of any portion of the Property, (b) seek any variance
under any existing zoning ordinance that could result in the use of the Property becoming a
non-conforming use under any zoning ordinance or any other applicable land use law, rule or
regulation, or (c) allow any portion of the Property to be used in any manner that could result in
the use of the Property becoming a non-conforming use under any zoning ordinance or any other
applicable land use law, rule or regulation;



5.2.18 Change of Principal Place of Business. Change its principal place of business and
chief executive office set forth on the first page of this Agreement without first giving Lender
thirty (30) days’ prior written notice (but in any event, within the period required pursuant to
the UCC) and there shall have been taken such action, reasonably satisfactory to Lender, as may be
necessary to maintain fully the effect, perfection and priority of the security interest of Lender
hereunder in the Account Collateral at all times;



5.2.19 Debt Cancellation. Cancel or otherwise forgive or release any material claim or
debt owed to it by any Person, except for adequate consideration or in the ordinary course of its
business and except for termination of a Lease as permitted by Section 8.7;



5.2.20 Misapplication of Funds. Distribute any revenue from the Property or any Proceeds
in violation of the provisions of this Agreement, fail to remit amounts to the Holding Account as
required by Section 3.1, misappropriate any security deposit or portion thereof or apply
the proceeds of the Loan in violation of Section 2.1.4; or


 


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5.2.21 Single Purpose Entity. Fail to be a Single Purpose Entity or take or suffer any
action or inaction the result of which would be to cause it or any SPE Entity to cease to be a
Single Purpose Entity.




VI. INSURANCE; CASUALTY; CONDEMNATION; RESTORATION



6.1 Insurance Coverage Requirements. Borrower (or in the case of the Maryland Property,
Maryland Loan Guarantor) shall, at its sole cost and expense, keep in full force and effect, or
cause the Master Lessee to keep in full force and effect, insurance coverage of the types and
minimum limits as follows during the term of this Agreement (it being understood that to the extent
that Master Lessee maintains any such coverage on the Closing Date, but thereafter fails to
maintain such coverage, Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor)
shall obtain such coverage at its sole cost and expense):



6.1.1 Property Insurance. Insurance against loss customarily included under so called “All
Risk” policies including flood, windstorm, earthquake, vandalism, and malicious mischief, boiler
and machinery, and such other insurable hazards as, under good insurance practices, from time to
time are insured against for other property and buildings similar to the Improvements and Building
Equipment in nature, use, location, height, and type of construction. Such insurance policy shall
also insure the additional expense of demolition and if any of the Improvements or the use of the
Property shall at any time constitute legal non-conforming structures or uses, provide coverage for
contingent liability from Operation of Building Laws, Demolition Costs and Increased Cost of
Construction Endorsements and containing an “Ordinance or Law Coverage” or “Enforcement”
endorsement. The amount of such “All Risk” insurance shall be not less than one hundred percent
(100%) of the replacement cost value of the Improvements and the Building Equipment. Each such
insurance policy shall contain an agreed amount (coinsurance waiver) and replacement cost value
endorsement and shall cover, without limitation, all tenant improvements and betterments which
Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) is required to insure
in accordance with any Lease. Lender shall be named “Loss Payee” on a “Standard Mortgagee
Endorsement” and be provided not less than thirty (30) days advance notice of change in coverage,
cancellation or non-renewal.



6.1.2 Liability Insurance. “Commercial General Liability” insurance and “Umbrella
Liability” coverage for “Personal Injury,” “Bodily Injury” including “Accident or Death and
Property Damage,” providing in combination no less than $50,000,000 per occurrence and in the
annual aggregate and Automobile insurance including coverage for “Owned” (if any), “Hired” and “Non
Owned vehicles.” The policies described in this paragraph shall cover “Contractual Liability”
including elevators, escalators and independent contractors (covering Borrower’s (or in the case of
the Maryland Property, Maryland Loan Guarantor) obligation to indemnify Lender as required under
this Agreement and “Products and Completed Operations Liability” coverage). All liability
insurance shall name Lender as “Additional Insured” either on a specific endorsement or under a
blanket endorsement reasonably satisfactory to Lender.



6.1.3 Workers’ Compensation Insurance. Workers compensation insurance as required by law.


 


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6.1.4 Business Interruption Insurance. Supplemental Business Interruption
insurance in an amount equal to twelve (12) months actual rental loss and with a coverage limit of
$7,000,000. Each such insurance policy shall contain an agreed amount (coinsurance waiver). In
the event business interruption insurance is no longer available at commercially reasonable rates,
then in lieu of obtaining business interruption insurance, Borrower may elect to deposit into the
LCR Deterioration Reserve Account Cash or Cash Equivalents or deliver to Lender a Letter of Credit,
in either case in an amount equal to (i) $7,000,000 or (ii) the difference between $7,000,000 and
the amount of business interruption insurance below $7,000,000 (the “Business Interruption
Reserve Amount”). The Business Interruption Reserve Amount shall be applied by Lender against
Master Lease Rent Shortfalls resulting from a casualty or a Taking. During the continuance of an
Event of Default, Lender shall have the right to draw all undrawn sums on any such Letter of Credit
and deposit same into the LCR Deterioration Reserve Account for application as set forth in the
preceding sentence, and, notwithstanding anything to the contrary contained herein, the Business
Interruption Reserve Amount shall not be applied against the Obligations during the continuance of
an Event of Default. In the event of a Master Lease Rent Shortfall resulting from a casualty or
Taking, Lender shall have the right to draw an amount equal to such Master Lease Rent Shortfall on
any such Letter of Credit and deposit same into the LCR Deterioration Reserve Account. Upon
written request of Borrower, Lender agrees to reasonably modify the requirements herein in the
event business interruption insurance is no longer commercially available.



6.1.5 Builder’s All-Risk Insurance. During any period of repair or restoration, builder’s
“All-Risk” insurance in an amount equal to not less than the full insurable value of the Property
against such risks (including so called “All Risk” perils coverage and collapse of the Improvements
to agreed limits as Lender may request, in form and substance acceptable to Lender).



6.1.6 Boiler and Machinery Insurance. Comprehensive boiler and machinery insurance
(without exclusion for explosion) covering all mechanical and electrical equipment against physical
damage, rent loss and improvements loss and covering, without limitation, all tenant improvements
and betterments that Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) or
Master Lessee is required to insure pursuant to the Master Lease or any Lease on a replacement cost
basis. The minimum amount of limits to be provided shall be $10,000,000 per accident.



6.1.7 Flood Insurance and Earthquake Insurance.



(a) If any portion of the Improvements is located within an area designated as “flood Zone A
or V” or a “special flood hazard area” (as defined under the regulations adopted under the National
Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973), flood insurance shall
be provided, in an amount not less than the maximum limit of coverage available under the Federal
Flood Insurance plan with respect to the Property. Lender reserves the right to require flood
insurance in excess of that available under the Federal Flood Insurance plan in commercially
reasonable amounts. Lender agrees to (a) reasonably modify the requirements herein if such
insurance is not commercially available and (b) accept any reduced coverage requirements acceptable
to the Rating Agencies as evidenced by a Rating Agency Confirmation.


 


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(b) If earthquake insurance limits and aggregates are shared with locations other than the
Property insured on the same policy as any of the Property or, if the amount of Earthquake
insurance provided is less than one hundred percent (100%) of the insurable values of the Property
and business interruption coverage combined, then the amount of earthquake coverage shall be based
on a “Probable Maximum Loss” Study for the applicable Individual Property, which must be conducted
by a firm satisfactory to Lender, which for purposes of this Agreement, Lender agrees that Aon Risk
Services, Borrower’s property insurance broker is satisfactory. The results of the “Probable
Maximum Loss” Study, on an Individual Property basis and for all locations insured in the same
earthquake insurance policies, shall be used to determine the amount of earthquake coverage to be
provided by Borrower. The amount of insurance shall be determined by adding the total expected
damage to all Improvements subject to a single earthquake event in a given region together along
with the expected loss of Rents and other income from the applicable Individual Property. The
total amount of earthquake insurance in limits shall be the sum of expected property damage,
reconstruction cost and annual business income expected loss. Should the available aggregate
limits of earthquake insurance be eroded by losses so that the remaining limits available to pay
losses are less than forty percent (40%) of the required limits, Borrower shall purchase additional
coverage to restore the available limit and aggregate limit to not less than eighty percent (80%)
of the required amount of insurance. If the earthquake insurance and associated aggregate limits
are shared among other locations the risks associated with other locations also insured in the same
policy shall be taken into consideration in determining the amount of insurance to be provided
herein. Lender agrees to (a) reasonably modify the requirements herein if such insurance is not
commercially available and (b) accept any reduced coverage requirements acceptable to the Rating
Agencies as evidenced by a Rating Agency Confirmation.



6.1.8 Terrorism Insurance. To the extent commercially available, Borrower (or in the case
of the Maryland Property, Maryland Loan Guarantor) shall be required to carry insurance with
respect to the Improvements and Building Equipment covering acts of sabotage or acts by terrorist
groups or individuals (“Terrorism Insurance”) throughout the Loan term consistent with the
amounts of insurance required by Sections 6.1.1 and 6.1.5 in an amount not less
than $25,000,000, and having a deductible commensurate with the deductibles under the insurance
required by Sections 6.1.1 and 6.1.5, or following a Securitization, such lesser
coverage amount or such greater deductible, on a blanket basis, that is acceptable to the Rating
Agencies as evidenced by a Rating Agency Confirmation. Borrower (or in the case of the Maryland
Property, Maryland Loan Guarantor) agrees that if any property insurance policy covering any
Individual Property provides for any exclusions of coverage for acts of terrorism, then a separate
Terrorism Insurance policy in the coverage amount required under this section and in form and
substance reasonably acceptable to Lender will be obtained by the Borrower (or in the case of the
Maryland Property, Maryland Loan Guarantor) for such Property to the extent such Terrorism
Insurance is commercially available. Lender agrees that Terrorism Insurance coverage may be
provided under a Blanket Policy that is reasonably acceptable to Lender. Notwithstanding anything
to the contrary in this Section 6.1.8, Borrower (or in the case of the Maryland Property,
Maryland Loan Guarantor) shall not be obligated to maintain Terrorism Insurance in an amount more
than that which can be purchased for a sum equal to $150,000 or such lesser amount of coverage
acceptable to the Rating Agencies as evidenced by a Rating Agency Confirmation.


 


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6.1.9 Storage Tank System Third Party Liability and Cleanup Insurance. Storage Tank
System Third Party Liability and Cleanup Insurance providing coverage amounts not less than
$2,000,000 per occurrence and $4,000,000 in the annual aggregate.



6.1.10 Other Insurance. At Lender’s reasonable request, such other insurance (including,
without limitation, to the extent requested by Lender, windstorm insurance) with respect to the
Property against loss or damage of the kinds from time to time customarily insured against and in
such amounts as are generally required by institutional lenders on loans of similar amounts and
secured by properties comparable to, and in the general vicinity of, the Property.



6.1.11 Ratings of Insurers. Borrower (or in the case of the Maryland Property, Maryland
Loan Guarantor) shall maintain the insurance coverage described in Section 6.1.1 through
Section 6.1.10 above, in all cases, with one or more domestic primary insurers reasonably
acceptable to Lender, having both (x) claims-paying-ability and financial strength ratings by S&P
of not less than “A” and its equivalent by the other Rating Agencies and (y) an Alfred M. Best
Company, Inc. rating of “A-” or better and a financial size category of not less than “X.” All
insurers providing insurance required by this Agreement shall be authorized to issue insurance in
the State.



6.1.12 Form of Insurance Policies; Endorsements. All insurance policies shall be in such
form and with such endorsements as are specified herein (and Lender shall have the right to
reasonably approve deductibles and loss payees on the Property secured under this Agreement). A
certificate of insurance with respect to all of the above-mentioned insurance policies has been
delivered to Lender and copies of all such policies shall be delivered to Lender when the same are
available upon request by Lender and shall be held by Lender. Borrower (or in the case of the
Maryland Property, Maryland Loan Guarantor) shall name Lender as an additional insured, shall
provide that all Proceeds (except with respect to Proceeds of general liability, automobile
liability, excess liability and workers’ compensation insurance) be payable to Lender as and to the
extent set forth in Section 6.2, and shall contain: (i) a standard “non-contributory mortgagee”
endorsement or its equivalent relating, inter alia, to recovery by Lender notwithstanding the
negligent or willful acts or omissions of Borrower (or in the case of the Maryland Property,
Maryland Loan Guarantor); (ii) a waiver of subrogation endorsement in favor of Lender; (iii) an
endorsement providing for a deductible per loss of an amount not more than that which is
customarily maintained by prudent owners of properties with a standard of operation and maintenance
comparable to and in the general vicinity of the Property, but in no event in excess of an amount
reasonably acceptable to Lender (and Lender hereby agrees and acknowledges that in no event shall
Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) be required to maintain
a deductible in an amount less than $1,000,000 with respect to any insurance policy obtained
pursuant to Section 6.1.1); and (iv) a provision that such policies shall not be canceled,
terminated or expire without at least thirty (30) days’ prior written notice to Lender, in each
instance.


 


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6.1.13 Evidence of Insurance. Borrower (or in the case of the Maryland Property, Maryland
Loan Guarantor) shall deliver to Lender annually, prior to the expiration of the insurance policies
required hereunder, evidence that the insurance policies required pursuant to this Section 6.1 are
maintained with insurers who comply with the terms of Section 6.1.10, setting forth a schedule
describing all premiums required to be paid to maintain the policies of
insurance required under this Section 6.1, and stating that Borrower (or in the case of the
Maryland Property, Maryland Loan Guarantor) has or will pay such premiums when due. Evidence of
insurance with respect to all replacement policies shall be delivered to Lender prior to the
expiration date of any of the insurance policies required to be maintained hereunder. If Borrower
(or in the case of the Maryland Property, Maryland Loan Guarantor) fails to maintain and deliver to
Lender the evidence of insurance required by this Agreement, Lender may procure such insurance, and
all costs thereof (and interest thereon at the Default Rate) shall be added to the Indebtedness.
Lender shall not, by the fact of approving, disapproving, accepting, preventing, obtaining or
failing to obtain any insurance, incur any liability for or with respect to the amount of insurance
carried, the form or legal sufficiency of insurance contracts, solvency of insurance companies, or
payment or defense of lawsuits, and Borrower (or in the case of the Maryland Property, Maryland
Loan Guarantor) hereby expressly assumes full responsibility therefor and all liability, if any,
with respect to such matters.



6.1.14 Separate Insurance. Borrower (or in the case of the Maryland Property, Maryland
Loan Guarantor) shall not take out separate insurance contributing in the event of loss with such
required to be maintained pursuant to this Section 6.1 unless such insurance complies with
this Section 6.1.



6.1.15 Blanket Policies. The insurance coverage required under this Section 6.1
may be effected under a blanket policy or policies covering the Property and other properties and
assets not constituting a part of the Property (a “Blanket Policy”), provided that
any blanket insurance policy shall cover each Individual Property in an amount of coverage that is
not less than the amounts required pursuant to this Section 6.1 and which shall in any case
comply in all other respects with the requirements of this Section 6.1.



6.2 Condemnation and Insurance Proceeds.



6.2.1 Notification. Borrower shall promptly notify Lender in writing upon obtaining
knowledge of (i) the institution of any proceedings relating to any Taking (whether material or
immaterial) of, or (ii) the occurrence of any casualty, damage or injury to, the Property or any
portion thereof, the restoration of which is estimated by Borrower in good faith to cost more than
the Casualty Amount as to any Individual Property. In addition, each such notice shall set forth
such good faith estimate of the cost of repairing or restoring such casualty, damage, injury or
Taking in reasonable detail if the same is then available and, if not, as soon thereafter as it can
reasonably be provided. Borrower shall promptly provide Lender with copies of any material
documentation available to Borrower and requested by Lender relating to any Taking.


 


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6.2.2 Proceeds. In the event of any Taking of or any casualty or other damage or injury to
the Property, Borrower’s (or in the case of the Maryland Property, Maryland Loan Guarantor) right,
title and interest in and to all compensation, awards, proceeds, damages, claims, insurance
recoveries, causes and rights of action (whether accrued prior to or after the date hereof) and
payments which Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) may
receive or become entitled with respect to the Property or any part thereof other than payments
received in connection with any liability or business interruption insurance and other than any of
the foregoing with respect to the Excluded Personal Property (collectively,
“Proceeds”) in connection with any such Taking of, or casualty or other damage or injury
to, the Property or any part thereof are hereby assigned by Borrower (or in the case of the
Maryland Property, Maryland Loan Guarantor) to Lender and, except as otherwise herein provided,
shall be paid to the Lender. Borrower (or in the case of the Maryland Property, Maryland Loan
Guarantor) shall, in good faith and in a commercially reasonable manner, file and prosecute the
adjustment, compromise or settlement of any claim for Proceeds and, subject to Borrower’s (or in
the case of the Maryland Property, Maryland Loan Guarantor’s) right to receive the direct payment
of any Proceeds as herein provided, will cause the same to be paid directly to Lender to be held
and applied in accordance with the provisions of this Agreement. Except upon the occurrence and
during the continuance of an Event of Default, Borrower (or in the case of the Maryland Property,
Maryland Loan Guarantor) may settle any insurance claim with respect to Proceeds which does not
exceed the Casualty Amount as to any Individual Property. Whether or not an Event of Default shall
have occurred and be continuing, Lender shall have the right to approve, such approval not to be
unreasonably withheld, any settlement which might result in any Proceeds in excess of the Casualty
Amount as to any Individual Property and Borrower (or in the case of the Maryland Property,
Maryland Loan Guarantor) shall deliver or cause to be delivered to Lender all instruments
reasonably requested by Lender to permit such approval. Borrower shall pay all reasonable
out-of-pocket costs, fees and expenses reasonably incurred by Lender (including all reasonable
attorneys’ fees and expenses, the reasonable fees of insurance experts and adjusters and reasonable
costs incurred in any litigation or arbitration), and interest thereon at the Default Rate to the
extent not paid within ten (10) Business Days after delivery of a request for reimbursement by
Lender, in connection with the settlement of any claim for Proceeds and seeking and obtaining of
any payment on account thereof in accordance with the foregoing provisions. If any Proceeds are
received by Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) and may be
retained by Borrower or Maryland Loan Guarantor pursuant to this Section 6.2, such Proceeds
shall, until the completion of the related Work, be held in trust for Lender and shall be
segregated from other funds of Borrower and Maryland Loan Guarantor to be used to pay for the cost
of the Work in accordance with the terms hereof, and in the event such Proceeds exceed the Casualty
Amount as to any Individual Property, such Proceeds shall be forthwith paid directly to and held by
Lender in the Proceeds Reserve Account in trust for Borrower (or in the case of the Maryland
Property, Maryland Loan Guarantor), in each case to be applied or disbursed in accordance with this
Section 6.2. Notwithstanding anything to the contrary set forth in this Agreement,
however, and excluding situations requiring prepayment of the Notes, to the extent any Proceeds
(either singly or when aggregated with all other then unapplied Proceeds with respect to the
Property) do not exceed the Casualty Amount as to any Individual Property, such Proceeds are to be
paid directly to Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) to be
applied to restoration of the Property in accordance with the terms hereof (except that Proceeds
paid in respect of the insurance described in Section 6.1.4 shall be deposited directly to
the Holding Account as revenue of the Property).


 


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6.2.3 Lender to Take Proceeds. If (i) the Proceeds with respect to any
particular Individual Property shall equal or exceed the Allocated Loan Amount for such Individual
Property at a time when the aggregate Allocated Loan Amounts of Individual Properties then
currently impacted by a casualty, damage, destruction or Taking is greater than 10% of the
Principal Amount, (ii) an Event of Default shall
have occurred and be continuing, (iii) a Total Loss with respect to any Individual Property
shall have occurred, (iv) the Work is not capable of being completed before the earlier to occur of
the date which is six (6) months prior to the earlier of the Maturity Date and the date on which
the business interruption insurance carried with respect to such Individual Property on which the
business interruption insurance carried with respect to such Individual Property shall expire (the
“Cut-Off Date”), unless on or prior to the Cut-Off Date (A) Borrower shall deliver to the
Lender and there shall remain in effect a binding written offer, subject only to customary
conditions, of an Approved Bank or such other financial institution or investment bank duly
authorized to originate loans secured by real property located in the State and reasonably
satisfactory to Lender for a loan from such Approved Bank or such other financial institution or
investment bank to the Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor)
in a principal amount of not less than the then outstanding Allocated Loan Amount for such
Individual Property and which shall, in the Lender’s reasonable judgment, enable the Borrower (or
in the case of the Maryland Property, Maryland Loan Guarantor) to refinance the Allocated Loan
Amount with respect to such Individual Property at or prior to the Maturity Date and (B) if a
Securitization shall have occurred, Borrower shall obtain a Rating Agency Confirmation, (v) the
Individual Property is not capable of being restored substantially to its condition prior to such
Taking or casualty and such incapacity shall have a Material Adverse Effect, (vi) the Master Lessee
or Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) shall exercise any
termination right under the Master Lease or (vii) Lender determines that, upon the completion of
the restoration, the gross cash flow and the net cash flow of the Property will not be restored to
a level sufficient to cover all carrying costs and operating expenses of the Property, including,
without limitation, debt service on the Notes at a coverage ratio (after deducting all required
reserves, as required by Lender, from net operating income) of at least 1.0 to 1.0, which coverage
ratio shall be determined by Lender in its reasonable discretion; then in any such case, all
Proceeds shall be paid over to Lender (if not paid directly to Lender) for application as set forth
in clause (b) below. Any Proceeds remaining after reimbursement of Lender’s or its agent’s costs
and expenses incurred in connection with recovery of any such Proceeds (including, without
limitation, administrative costs and inspection fees) shall, except to the extent required under
the provisions hereof to be applied for restoration, be paid to the Holding Account to be applied
by Lender to prepay the Notes to the extent of the Release Price for such Individual Property in
accordance with the provisions hereof (without the imposition of any Yield Maintenance Premium),
with the balance, if any, to be paid to the Borrower’s Account. If the Proceeds applied by Lender
pursuant to the preceding sentence equal or exceed the Release Price for such Individual Property,
Borrower shall be entitled to obtain a Property Release subject to and in accordance with
Section 2.3.4. If the Proceeds so applied by Lender pursuant to clauses (a)(iii), (v) or
(vi) above are not sufficient to pay the Release Price with respect to an Individual Property in
full, Borrower shall be entitled to prepay the remainder of the Release Price and obtain a Property
Release with respect to the Individual Property for which the Proceeds were received in accordance
with Section 2.3.4 without the imposition of any Yield Maintenance Premium and otherwise in
accordance with the terms and provisions of the Note.


 


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6.2.4 Borrower to Restore.



(a) Subject to Borrower’s rights pursuant to Section 2.3.4 to cause the Property to be
released from the Lien of the Security Instrument, and provided that the Proceeds, if any, shall be
made available to Borrower by Lender, Borrower (or in the case of the Maryland Property, Maryland
Loan Guarantor) shall (whether or not such Proceeds shall be sufficient) promptly after the
occurrence of any damage or destruction to all or any portion of the Property or a Taking of a
portion of the Property, commence and diligently prosecute, or cause to be commenced and diligently
prosecuted, to completion, subject to Excusable Delays, the repair, restoration and rebuilding of
the Property (in the case of a partial Taking, to the extent it is capable of being restored) so
damaged, destroyed or remaining after such Taking in full compliance with all material Legal
Requirements and free and clear of any and all Liens except Permitted Encumbrances (such repair,
restoration and rebuilding are collectively referred to herein as the “Work”). The plans
and specifications shall require that the Work be done in a workmanlike manner at least equivalent
to the quality and character prior to the damage or destruction (provided, however,
that in the case of a partial Taking, the Property restoration shall be done to the extent
reasonably practicable after taking into account the consequences of such partial Taking), so that
upon completion thereof, the Property shall be at least equal in value and general utility to the
Property prior to the damage or destruction; it being understood, however, that Borrower (or in the
case of the Maryland Property, Maryland Loan Guarantor) shall not be obligated to restore the
Property to the precise condition of the Property prior to any partial Taking of, or casualty or
other damage or injury to, the Property, if the Work actually performed, if any, or failed to be
performed, shall have no Material Adverse Effect on the value of the Property from the value that
the Property would have had if the same had been restored to its condition immediately prior to
such Taking or casualty.



(b) If Proceeds are not required to be applied toward payment of the Indebtedness pursuant to
the terms hereof, then Lender shall make the Proceeds which it is holding pursuant to the terms
hereof (after payment of any expenses incurred by Lender in connection with the collection thereof
plus interest thereon at the Default Rate from the date advanced through the date of reimbursement)
available to Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) for
payment or reimbursement of Borrower’s (or in the case of the Maryland Property, Maryland Loan
Guarantor’s) or the applicable Tenant’s expenses incurred with respect to the Work, upon the terms
and subject to the conditions set forth in paragraphs (i), (ii) and (iii) below and in Section
6.2.5:



(i) at the time of loss or damage or at any time thereafter while Borrower (or in the case of
the Maryland Property, Maryland Loan Guarantor) is holding any portion of the Proceeds, there shall
be no Event of Default;



(ii) if, at any time, the estimated cost of the Work (as estimated by the Independent
Architect referred to in clause (iii) below) shall exceed the Proceeds (a “Deficiency”) and
for so long as such Deficiency shall exist, Lender shall not be required to make any Proceeds
disbursement to Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) unless
Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) (within a reasonable
period of time after receipt of such estimate), at its election, either deposits with or delivers
to Lender (A) Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to the
estimated cost of the Work less the Proceeds available, or (B) such other evidence of
Borrower’s (or in the case of the Maryland Property, Maryland Loan Guarantor’s) ability to
meet such excess costs and which is satisfactory to Lender and the Rating Agencies;


 


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(iii) Each of Lender and the Independent Architect shall have reasonably approved the plans
and specifications for the Work and any change orders in connection with such plans and
specifications; and



(iv) Lender shall, within a reasonable period of time prior to request for initial
disbursement, be furnished with an estimate of the cost of the Work accompanied by an Independent
Architect’s certification as to such costs and appropriate plans and specifications for the Work.
Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) shall restore all
Improvements such that when they are fully restored and/or repaired, such Improvements and their
contemplated use fully comply with all applicable Legal Requirements including zoning,
environmental and building laws, codes, ordinances and regulations.



6.2.5 Disbursement of Proceeds.



(a) Disbursements of the Proceeds in Cash or Cash Equivalents to Borrower (or in the case of
the Maryland Property, Maryland Loan Guarantor) hereunder shall be made from time to time (but not
more frequently than once in any month) by Lender but only for so long as no Event of Default shall
have occurred and be continuing, as the Work progresses upon receipt by Lender of (i) an Officer’s
Certificate dated not more than ten (10) Business Days prior to the application for such payment,
requesting such payment or reimbursement and describing the Work performed that is the subject of
such request, the parties that performed such Work and the actual cost thereof, and also certifying
that such Work and materials are or, upon disbursement of the payment requested to the parties
entitled thereto, will be free and clear of Liens other than Permitted Encumbrances, (ii) evidence
reasonably satisfactory to Lender that (A) all materials installed and work and labor performed in
connection with such Work have been paid for in full and (B) there exists no notices of pendency,
stop orders, mechanic’s liens or notices of intention to file same (unless the same is required by
the applicable State law as a condition to the payment of a contractor) or any liens or
encumbrances of any nature whatsoever on the Property arising out of the Work which have not been
either fully bonded to the satisfaction of Lender or discharged of record or in the alternative,
fully insured to the satisfaction of Lender by the Title Company and (iii) an Independent
Architect’s certificate certifying performance of the Work together with an estimate of the cost to
complete the Work. No payment made prior to the final completion of the Work, as certified by the
Architect, except for payment made to contractors or subcontractors whose Work shall have been
fully completed and from which final lien waivers have been received, shall exceed ninety percent
(90%) of the value of the Work performed and materials furnished and incorporated into the
Improvements from time to time, and at all times the undisbursed balance of said Proceeds together
with all amounts deposited, bonded, guaranteed or otherwise provided for pursuant to Section
6.2.4(b) above, shall be at least sufficient to pay for the estimated cost of completion of the
Work; final payment of all Proceeds remaining with Lender shall be made upon receipt by Lender of a
certification by an Independent Architect, as to the completion of the Work substantially in
accordance with the submitted plans and specifications, final lien releases, and the filing of a
notice of completion and the expiration of the period provided under the law of the applicable
State for the filing of mechanics’ and materialmens’ liens which are entitled to priority as to
other creditors, encumbrances and
purchasers, as certified pursuant to an Officer’s Certificate, and delivery of a certificate
of occupancy with respect to the Work, or, if not applicable, an Officer’s Certificate to the
effect that a certificate of occupancy is not required.


 


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(b) If, after the Work is completed in accordance with the provisions hereof and Lender
receives evidence that all costs of completion have been paid, there are excess Proceeds, such
excess Proceeds shall be paid over to Lender for application in accordance with Section
6.2.3(b).




VII. IMPOSITIONS, OTHER CHARGES, LIENS AND OTHER ITEMS



7.1 Borrower or Maryland Loan Guarantor to Pay Impositions and Other Charges. Borrower (or
in the case of the Maryland Property, Maryland Loan Guarantor) shall pay all Impositions now or
hereafter levied or assessed or imposed against the Property or any part thereof prior to the
imposition of any interest, charges or expenses for the non-payment thereof and shall pay all Other
Charges on or before the date they are due. Borrower shall deliver to Lender annually, no later
than fifteen (15) Business Days after the first day of each fiscal year of Borrower, and shall
update as new information is received, a schedule describing all Impositions, payable or estimated
to be payable during such fiscal year attributable to or affecting the Property or Borrower.
Subject to Borrower’s right of contest set forth in Section 7.3, as set forth in the next
two (2) sentences and provided that there are sufficient funds available in the Tax Reserve
Account, Lender, on behalf of Borrower, shall pay all Impositions and Other Charges which are
attributable to or affect the Property or Borrower, prior to the date such Impositions or Other
Charges shall become delinquent or late charges may be imposed thereon, directly to the applicable
taxing authority with respect thereto. Lender shall, or Lender shall direct the Cash Management
Bank to, pay to the taxing authority such amounts to the extent funds in the Tax Reserve Account
are sufficient to pay such Impositions. Nothing contained in this Agreement or the Security
Instrument shall be construed to require Borrower or Maryland Loan Guarantor to pay any tax,
assessment, levy or charge imposed on Lender in the nature of a franchise, capital levy, estate,
inheritance, succession, income or net revenue tax.



7.2 No Liens. Subject to its right of contest set forth in Section 7.3, Borrower
(or in the case of the Maryland Property, Maryland Loan Guarantor) shall at all times keep, or
cause to be kept, the Property free from all Liens (other than Permitted Encumbrances) and shall
pay when due and payable (or bond over) all claims and demands of mechanics, materialmen, laborers
and others which, if unpaid, might result in or permit the creation of a Lien on the Property or
any portion thereof and shall in any event cause the prompt, full and unconditional discharge of
all Liens imposed on or against the Property or any portion thereof within forty-five (45) days
after receiving written notice of the filing (whether from Lender, the lienor or any other Person)
thereof. Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) shall do or
cause to be done, at the sole cost of Borrower, everything reasonably necessary to fully preserve
the first priority of the Lien of the Security Instrument against the Property, subject to the
Permitted Encumbrances. Upon the occurrence and during the continuance of an Event of Default with
respect to its Obligations as set forth in this Article VII, Lender may (but shall not be
obligated to) make such payment or discharge such Lien, and Borrower shall reimburse Lender on
demand for all such advances pursuant to Section 19.12 (together with interest thereon at
the Default Rate).


 


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7.3 Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause
to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or
Insurance Requirement, so long as Borrower (or in the case of the Maryland Property, Maryland Loan
Guarantor) is in good faith, and by proper legal proceedings, where appropriate, diligently
contesting the validity, amount or application thereof, provided that in each case, at the
time of the commencement of any such action or proceeding, and during the pendency of such action
or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall
keep Lender informed of the status of such contest at reasonable intervals, (iii) if Borrower is
not providing security as provided in clause (vi) below, adequate reserves with respect thereto are
maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance
Reserve Account, as applicable, (iv) either such contest operates to suspend collection or
enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such
contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is
bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith
shall not impair the validity of any insurance required to be maintained by Borrower under
Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of
Impositions and Liens which are not bonded in excess of an amount equal to five percent (5%) of the
Allocated Loan Amount of the applicable Individual Property, or Two Million Dollars ($2,000,000) in
the aggregate, during such contest, Borrower (or in the case of the Maryland Property, Maryland
Loan Guarantor), shall deposit with or deliver to Lender either Cash and Cash Equivalents or a
Letter of Credit or Letters of Credit in an amount equal to one hundred twenty-five percent (125%)
of (A) the amount of Borrower’s (or in the case of the Maryland Property, Maryland Loan
Guarantor’s) obligations being contested plus (B) any additional interest, charge, or penalty
arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the
furnishing of any bond or other security, Borrower and Maryland Loan Guarantor promptly shall
comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested
Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any
time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent
danger of being forfeited or lost or Lender is likely to be subject to criminal damages as a result
thereof. If such action or proceeding is terminated or discontinued adversely to Borrower (or in
the case of the Maryland Property, Maryland Loan Guarantor), Borrower or Maryland Loan Guarantor,
as applicable, shall deliver to Lender reasonable evidence of its compliance with such contested
Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.




VIII. TRANSFERS, INDEBTEDNESS AND SUBORDINATE LIENS



8.1 General Restriction on Transfers and Debt. Unless such action is permitted by the
provisions of this Agreement, Borrower and Maryland Loan Guarantor shall not, and shall not permit
Master Lessee or any Person holding any direct or indirect ownership interest in Borrower, Maryland
Loan Guarantor, Master Lessee, or any other SPE Entity or the Property to, except with the prior
written consent of Lender and, if a Securitization has occurred, delivery of a Rating Agency
Confirmation, (i) Transfer all or any part of the Property, (ii) incur any Debt, other than
Permitted Debt or Permitted Encumbrances, or (iii) permit any Transfer (directly or indirectly) of
any direct or indirect interest in Borrower, Maryland Loan Guarantor, Master Lessee, any SPE Entity
or Guarantor. Notwithstanding the forgoing or anything to the contrary contained in this
Agreement, the provisions of this Article VIII shall not apply to or prohibit and
the Lender’s consent shall not be required for (A) the transfer of shares of stock of any Person
(other than Borrower or Maryland Loan Guarantor) that is an Affiliate of Borrower, Maryland Loan
Guarantor, Master Lessee, any SPE Entity or Guarantor (1) in connection with an initial public
offering of such Person’s stock provided that Borrower complies with Section
8.4(b)(i), (ii), (iv), (v) and (vi) and/or (2) if such Person
is publicly traded, in ordinary course trading on a nationally recognized stock exchange, or (B)
the incurrence of Debt by Master Lessee and the grant of a Lien by Master Lessee on the Excluded
Personal Property as security for such Debt.


 


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8.2 Sale of Building Equipment. Borrower (or in the case of the Maryland Property,
Maryland Loan Guarantor) may Transfer or dispose of Building Equipment which is being replaced or
which is no longer necessary in connection with the operation of the Property free from the Lien of
the Security Instrument provided that such Transfer or disposal will not have a Material
Adverse Effect on the value of the Property taken as a whole, will not materially impair the
utility of the Property and will not result in a reduction or abatement of, or right of offset
against, the Rents payable under the Master Lease or any Lease, in either case as a result thereof,
and provided, further, that any new Building Equipment acquired by Borrower (or in
the case of the Maryland Property, Maryland Loan Guarantor) (and not so disposed of) shall be
subject to the Lien of the Security Instrument. Lender shall, from time to time, upon receipt of
an Officer’s Certificate requesting the same and confirming satisfaction of the conditions set
forth above, execute a written instrument in form reasonably satisfactory to Lender to confirm that
such Building Equipment which is to be, or has been, sold or disposed of is free from the Lien of
the Security Instrument.



8.3 Immaterial Transfers and Easements, etc. Borrower (or in the case of the Maryland
Property, Maryland Loan Guarantor) may, without the consent of Lender, (i) make immaterial
Transfers of portions of the Property to Governmental Authorities for dedication or public use
(subject to the provisions of Section 6.2) or, portions of the Property to third parties
for the purpose of erecting and operating additional structures whose use is integrated with the
use of the Property, and (ii) grant easements, restrictions, covenants, reservations and rights of
way in the ordinary course of business for access, water and sewer lines, telephone and telegraph
lines, electric lines or other utilities or for other similar purposes, provided that no
such Transfer, conveyance or encumbrance set forth in the foregoing clauses (i) and (ii) shall
materially impair the utility and operation of the Property or have a Material Adverse Effect on
the value of the Property taken as a whole. In connection with any Transfer permitted pursuant to
this Section 8.3, Lender shall execute and deliver any instrument reasonably necessary or
appropriate, in the case of the Transfers referred to in clause (i) above, to release the portion
of the Property affected by such Taking or such Transfer from the Lien of the Security Instrument
or, in the case of clause (ii) above, to subordinate the Lien of the Security Instrument to such
easements, restrictions, covenants, reservations and rights of way or other similar grants upon
receipt by Lender of:




(a) thirty (30) days prior written notice thereof;




(b) a copy of the instrument or instruments of Transfer;



(c) an Officer’s Certificate stating (x) with respect to any Transfer, the consideration, if
any, being paid for the Transfer and (y) that such Transfer does not materially impair the utility
and operation of the Property, materially reduce the value of the Property or have a Material
Adverse Effect; and



(d) reimbursement of all of Lender’s costs and expenses incurred in connection with such
Transfer.


 


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8.4 Permitted Equity Transfers.



(a) A Transfer (but not a pledge or encumbrance) of a direct or indirect beneficial interest
in Borrower (other than Maryland Borrower), Maryland Loan Guarantor or Master Lessee that is
otherwise prohibited hereunder shall nevertheless be permitted without Lender’s prior written
consent if (i) Lender receives thirty (30) days prior written notice thereof, (ii) immediately
prior to such Transfer, no Event of Default shall have occurred and be continuing, (iii) no more
than forty-nine percent (49%) of the direct or indirect ownership interests in Borrower is being
Transferred (in the aggregate of all such Transfers), (iv) the transferee is not a Disqualified
Transferee, (v) Guarantor retains Control of Borrower and Master Lessee and continues to own,
directly and/or indirectly, at least fifty-one percent (51%) of the equity interests in Borrower
and Master Lessee, (vi) Master Lessee remains the master lessee under the Master Lease, (vii)
Borrower retains control and management of the Property, (viii) Maryland Loan Guarantor retains a
100% direct ownership interest in Maryland Borrower and (ix) if the Loan has been restructured to
include any mezzanine component, such Transfer is not a Transfer of the direct interests in
Borrower (or in the case of the Maryland Property, the Maryland Loan Guarantor) which serve as
collateral for such mezzanine loan.



(b) A Transfer of more than forty-nine percent (49%) of the direct or indirect ownership
interests in Borrower (other than direct interests in Maryland Borrower) and Maryland Loan
Guarantor (in the aggregate of all such Transfers) shall be permitted only upon the satisfaction of
the following conditions precedent: (i) Lender shall have received thirty (30) days prior written
notice thereof, (ii) immediately prior to such Transfer, no Event of Default shall have occurred
and be continuing, (iii) Lender shall have granted its prior written consent to such Transfer, such
consent not to be unreasonably withheld, conditioned or delayed, (iv) the proposed transferee shall
be a Qualified Transferee, (v) Borrower shall have reimbursed to Lender all of Lender’s costs and
expenses incurred in connection with such Transfer, (vi) Borrower shall have delivered to Lender
and, if a Securitization has occurred, the Rating Agencies, (A) a Non-consolidation Opinion and (B)
such other documentation and Opinions of Counsel as shall be reasonably required by Lender and/or,
if a Securitization has occurred, required by the Rating Agencies, in each case in a form
reasonably satisfactory to Lender and, if the Loan is the subject of a Securitization, in a form
satisfactory to the Rating Agencies in their sole discretion and (vii) prior to such Transfer,
Borrower shall have obtained a Rating Agency Confirmation.



(c) Notwithstanding anything herein to the contrary, the following Transfers shall not require
the prior written consent of Lender or a Rating Agency Confirmation (but shall be subject to the
remaining conditions of Section 8.4(a) and (b) as applicable other than
8(a)(v), 8(b)(iii), (iv) and (vii) all of which shall not be
required: a Transfer (but not a pledge or encumbrance) of any direct or indirect interests in
Guarantor, Master Lessee, Maryland Loan Guarantor or Borrower (other than direct interests in
Maryland Borrower), provided that
subsequent to any such Transfer, more than fifty-one percent (51%) percent of Borrower,
Maryland Loan Guarantor and Master Lessee is directly or indirectly owned by one or more investment
funds, limited liability companies, limited partnerships or general partnerships with combined
committed capital of at least $1,000,000,000 where one or more Permitted Fund Managers acts as the
general partners, managing members or fund managers and at least fifty-one percent (51%) of the
equity interests in each of such Permitted Fund Managers are owned, directly or indirectly, by
Guarantor, Cerberus Capital Management, L.P. or a wholly owned subsidiary of Guarantor or Cerberus
Capital Management, L.P.


 


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8.5 Deliveries to Lender. Not less than thirty (30) days prior to the closing of any
transaction subject to the provisions of this Article VIII, Borrower shall deliver to
Lender an Officer’s Certificate describing the proposed transaction and stating that such
transaction is permitted by this Article VIII, together with any appraisal or other
documents upon which such Officer’s Certificate is based. In addition, Borrower shall provide
Lender with copies of executed deeds or other similar closing documents within ten (10) Business
Days after such closing.



8.6 Loan Assumption. Upon receipt of Lender’s prior written consent (which consent shall
not be unreasonably withheld or delayed) and provided no Event of Default is then
continuing, Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) may sell,
assign, convey or transfer (but not mortgage, hypothecate or otherwise encumber or grant a security
interest in) legal or equitable title to all (but not fewer than all) of the Individual Properties
only if, after giving effect to the proposed transaction, the Individual Properties will be owned
by one or more Single Purpose Entities wholly owned by a Qualified Transferee which shall have
executed and delivered to Lender an assumption agreement in form and substance acceptable to
Lender. Any such assumption of the Loan shall be conditioned upon, among other things, (i) the
delivery of financial information, including, without limitation, audited financial statements, for
such purchaser and the direct and indirect owners such purchaser, (ii) the delivery of evidence
that the purchaser is a Single Purpose Entity and is a Qualified Transferee, (iii) the execution
and delivery of all documentation reasonably requested by Lender or, if applicable, requested by
the Rating Agencies, (iv) the delivery of Opinions of Counsel requested by Lender or the Rating
Agencies, including, without limitation, a Non-Consolidation Opinion with respect to the purchaser
and other entities identified by Lender and Opinions of Counsel with respect to the valid
formation, due authority and good standing of the purchaser and any additional pledgors and the
continued enforceability of the Loan Documents and any other matters requested by Lender or, if
applicable, the Rating Agencies, (v) the delivery of an endorsement to the Title Policy in form and
substance acceptable to Lender, insuring the lien of the Security Instrument, as assumed, subject
only to the Permitted Encumbrances, (vi) the payment of (A) all of Lender’s fees, costs and
expenses, including, without limitation, reasonable attorneys’ fees and costs, incurred by Lender
in connection with such assumption, (B) any fees of the Rating Agencies and (C) an assumption fee
in the amount of $200,000 and (vii) if the Loan is the subject of a Securitization, delivery of a
Rating Agency Confirmation with respect to such assumption.



 


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8.7 Leases and Subleases.



8.7.1 Leasing Conditions. Borrower (or in the case of the Maryland Property, Maryland Loan
Guarantor) shall not enter into any Lease without the prior written consent of Lender. During the
continuance of Event of Default, Borrower (or in the case of the Maryland Property, Maryland Loan
Guarantor) shall not permit Master Lessee to (i) enter into any Sublease (a “New Sublease”)
or (ii) modify any Sublease (including, without limitation, accept a surrender of any portion of
the Property subject to a Sublease (unless otherwise permitted or required by law), allow a
reduction in the term of any Sublease or a reduction in the rent payable under any Sublease, change
any renewal provisions of any Sublease, materially increase the obligations of the landlord or
materially decrease the obligations of any Tenant) or terminate any Sublease unless the Tenant
under such Sublease is in default (any such action referred to in clause (ii) being referred to
herein as a “Sublease Modification”), without the prior written consent of Lender. If no
Event of Default is then continuing, Borrower (or in the case of the Maryland Property, Maryland
Loan Guarantor) may permit Master Lessee to enter into any New Sublease or execute or effect any
Sublease Modification without Lender’s consent (provided that, in each case, the terms
thereof are market terms and, unless consented to in writing by Lender (such consent not to be
unreasonably, withheld, conditioned or delayed) the tenant thereunder is a bona fide third party);
provided, however, that during any Low LCR Cash Flow Sweep Period, Borrower (or in
the case of the Maryland Property, Maryland Loan Guarantor) shall not permit Master Lessee to enter
into a New Sublease that is a Material Sublease or execute or effect any Sublease Modification with
respect to a Material Sublease, without the prior written consent of Lender.



8.7.2 Delivery of New Sublease or Sublease Modification. Upon the execution of any New
Sublease or Sublease Modification, as applicable, Borrower shall deliver to Lender an executed copy
of thereof.



8.7.3 Security Deposits. All security or other deposits of Tenants of the Property shall
be treated by Borrower as trust funds and shall not be commingled with any other funds of Borrower,
and such deposits shall be deposited, upon receipt of the same by Borrower in a separate trust
account maintained by Borrower expressly for such purpose. Within ten (10) Business Days after
written request by Lender, Borrower shall furnish to Lender reasonably satisfactory evidence of
compliance with this Section 8.7.3, together with a statement of all lease securities
deposited with Borrower by the Tenants and the location and account number of the account in which
such security deposits are held.



8.7.4 No Default Under Subleases. Borrower (or in the case of the Maryland Property,
Maryland Loan Guarantor) shall cause Master Lessee to (i) use reasonable efforts to promptly
perform and observe all of the material terms, covenants and conditions required to be performed
and observed by Master Lessee under the Subleases, (ii) exercise, within ten (10) Business Days
after a written request by Lender made not more than two (2) times in any calendar year, any right
to request from the Tenant under any Lease a certificate with respect to the status thereof and
(iii) not collect any of the rents thereunder, more than one (1) month in advance.



8.7.5 Subordination. All Sublease Modifications and New Subleases entered into by Master
Lessee after the date hereof shall by their express terms be subject and subordinate to the Master
Lease.


 


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8.7.6 Attornment. Each New Sublease entered into from and after the date hereof shall
provide that, (a) in the event of a termination of the Master Lease the Tenant under such Sublease
shall attorn to Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) and
shall recognize Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) as
lessor under such Sublease without change in the provisions thereof and (b) in the event, following
any termination of the Master Lease, of the enforcement by Lender of any remedy under this
Agreement or the Security Instrument, the Tenant under such Lease shall, at the option of Lender or
of any other Person succeeding to the interest of Lender as landlord under such Lease as a result
of such enforcement, attorn to Lender or to such Person and shall recognize Lender or such
successor in the interest as lessor under such Lease without change in the provisions thereof;
provided, however, Lender or such successor in interest shall not be liable for or
bound by (i) any payment of an installment of rent or additional rent made more than thirty (30)
days before the due date of such installment, (ii) any act or omission of or default by Borrower
(or in the case of the Maryland Property, Maryland Loan Guarantor) or Master Lessee, as applicable,
under any such Lease, (iii) any credits, claims, setoffs or defenses which any Tenant may have
against Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) or Master
Lessee, as applicable, (iv) any obligation on the part of Borrower (or in the case of the Maryland
Property, Maryland Loan Guarantor) or Master Lessee, as applicable, pursuant to such Lease, to
perform any tenant improvement work or (v) any obligation on the part of Borrower (or in the case
of the Maryland Property, Maryland Loan Guarantor) or Master Lessee, as applicable, pursuant to
such Lease, to pay any sum of money to any Tenant. Each such New Sublease shall also provide that,
upon the reasonable request by Lender or such successor in interest, the Tenant shall execute and
deliver an instrument or instruments confirming such attornment.



8.7.7 Non-Disturbance Agreements. Lender shall enter into, and, if required by applicable
law to provide constructive notice or requested by a Tenant, record in the county where the subject
Property is located, a subordination, attornment and non-disturbance agreement, substantially in
form and substance substantially similar to the form attached hereto as Exhibit N (a
“Non-Disturbance Agreement”), with any Tenant (other than an Affiliate of Borrower)
entering into a Lease or Sublease, within ten (10) Business Days after written request therefor by
Borrower; provided that Lender’s consent to such Lease or Sublease has been obtained if and
to the extent required hereunder and such request is accompanied by an Officer’s Certificate
stating that such Lease or Sublease (as applicable) complies in all material respects with this
Section 8.7 and payment of all costs and expenses incurred by Lender in connection with the
negotiation, preparation, execution and delivery of any Non-Disturbance Agreement, including,
without limitation, reasonable attorneys’ fees and disbursements.




IX. RESERVED




X. MAINTENANCE OF PROPERTY; ALTERATIONS



10.1 Maintenance of Property. Borrower (or in the case of the Maryland Property, Maryland
Loan Guarantor) shall keep and maintain, or cause to be kept and maintained, the Property and every
part thereof in good condition and repair, subject to ordinary wear and tear, and, subject to
Excusable Delays and the provisions of this Agreement with respect to damage or destruction caused
by casualty events or Takings, shall not permit or commit any waste,
impairment or deterioration of any portion of the Property in any material respect. Borrower (or
in the case of the Maryland Property, Maryland Loan Guarantor) further covenants to do all other
acts which from the character or use of the Property may be reasonably necessary to protect the
security hereof, the specific enumerations herein not excluding the general. Borrower (or in the
case of the Maryland Property, Maryland Loan Guarantor) shall not remove or demolish any
Improvement on the Property except as the same may be necessary in connection with an Alteration or
a restoration in connection with a Taking or casualty, or as otherwise permitted herein, in each
case in accordance with the terms and conditions hereof.


 


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10.2 Conditions to Alteration. Provided that no Event of Default shall have occurred and
be continuing hereunder, Borrower (or in the case of the Maryland Property, Maryland Loan
Guarantor) shall have the right, without Lender’s consent, to undertake any alteration,
improvement, demolition or removal of the Property or any portion thereof (any such alteration,
improvement, demolition or removal, an “Alteration”) so long as (i) Borrower provides
Lender with prior written notice of any Material Alteration, and (ii) such Alteration is undertaken
in accordance with the applicable provisions of this Agreement and the other Loan Documents, is not
prohibited by any relevant Lease or Sublease and shall not, upon completion (giving credit to rent
and other charges attributable to Leases executed upon such completion), have a Material Adverse
Effect on the value, use or operation of the Property taken as a whole or otherwise. Any Material
Alteration shall be conducted under the supervision of an Independent Architect and, in connection
with any Material Alteration, Borrower shall deliver to Lender, for information purposes only and
not for approval by Lender, detailed plans and specifications and cost estimates therefor prepared
or approved by such Independent Architect, as well as an Officer’s Certificate stating that such
Alteration will involve estimated costs of no more than the Threshold Amount. Such plans and
specifications may be revised at any time and from time to time by such Independent Architect
provided that material revisions of such plans and specifications are filed with Lender,
for information purposes only. All work done in connection with any Alteration shall be performed
with due diligence in a good and workmanlike manner, all materials used in connection with any
Alteration shall not be less than the standard of quality of the materials currently used at the
Property and all materials used shall be in accordance with all applicable material Legal
Requirements and Insurance Requirements.



10.3 Costs of Alteration. Notwithstanding anything to the contrary contained in this
Article X, no Material Alteration or Alteration which, when aggregated with all other
Alterations (other than Material Alterations) then being undertaken by Borrower (or in the case of
the Maryland Property, Maryland Loan Guarantor) or Master Lessee (exclusive of Alterations being
directly paid for by Tenants at the Property), exceeds the Threshold Amount shall be performed by
or on behalf of Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) or
Master Lessee unless Borrower shall have delivered to Lender Cash and Cash Equivalents and/or a
Letter of Credit as security in an amount not less than (a) the estimated cost of the Material
Alteration or the Alterations minus the Threshold Amount (as set forth in the Independent
Architect’s written estimate referred to above) or (b) in the case of Alterations being performed
by or on behalf of the Master Lessee, any sums required to be deposited by Master Lessee under the
Master Lease. Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) shall
deliver to Lender any security deposited by the Master Lessee for any Alteration under the Master
Lease. In addition to payment or reimbursement from time to time of Borrower’s expenses incurred
in connection with any Material Alteration or any such
Alteration, the amount of any such security shall be reduced on any given date to the Independent
Architect’s written estimate of the cost to complete the Material Alteration or the Alterations
(including any retainages), free and clear of Liens, other than Permitted Encumbrances. Costs
which are subject to retainage (which in no event shall be less than five percent (5%) in the
aggregate until fifty percent (50%) of the work to be performed under the applicable contract has
been substantially completed) shall be treated as due and payable and unpaid from the date they
would be due and payable but for their characterization as subject to retainage. In the event that
any Material Alteration or Alteration shall be made in conjunction with any restoration with
respect to which Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2,
the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto
need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration
(as estimated by the Independent Architect), less the sum of the amount of any Proceeds which
Borrower may be entitled to withdraw pursuant to Section 6.2 and which are held by Lender
in accordance with Section 6.2. Payment or reimbursement of Borrower’s expenses incurred
with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms
and conditions specified in Section 6.2.


 


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At any time after substantial completion of any Material Alteration or any such Alteration in
respect of which Cash and Cash Equivalents and/or a Letter of Credit is deposited pursuant hereto,
the whole balance of any Cash and Cash Equivalents so deposited by Borrower with Lender and then
remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn
by Borrower and shall be paid by Lender to Borrower, and any other Cash and Cash Equivalents and/or
a Letter of Credit so deposited or delivered shall, to the extent it has not been called upon,
reduced or theretofore released, be released to Borrower, within ten (10) days after receipt by
Lender of an application for such withdrawal and/or release together with an Officer’s Certificate,
and signed also (as to the following clause (a)) by the Independent Architect, setting forth in
substance as follows:



(a) that to the knowledge of the certifying Person, the Material Alteration or Alteration in
respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been
substantially completed in all material respects substantially in accordance with any plans and
specifications therefor previously filed with Lender under Section 10.2 and that, if
applicable, a certificate of occupancy has been issued with respect to such Material Alteration or
Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of
occupancy is not required; and



(b) that to the knowledge of the certifying Person all amounts which Borrower is or may become
liable to pay in respect of such Material Alteration or Alteration through the date of the
certification have been paid in full or adequately provided for or are being contested in
accordance with Section 7.3 and that, except to the extent of such contests, lien waivers
have been obtained from the general contractor and major subcontractors performing such Material
Alterations or Alterations (or such waivers are not customary and reasonably obtainable by prudent
owners in the area where the Property is located).



Notwithstanding the foregoing, in lieu of posting Cash and Cash Equivalents and/or a Letter of
Credit with Lender pursuant to the provisions of this Section 10.3, Borrower may, at its
election, deliver to lender a guaranty from Guarantor in form acceptable to Lender, pursuant to
which Guarantor unconditionally guaranties the lien free completion of the subject Alteration and payment
in full of all costs related thereto in excess of the Threshold Amount.


 


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XI. BOOKS AND RECORDS, FINANCIAL STATEMENTS, REPORTS AND OTHER INFORMATION



11.1 Books and Records. Borrower (or in the case of the Maryland Property, Maryland Loan
Guarantor) shall keep and maintain on a fiscal year basis proper books and records separate from
any other Person, in which accurate and complete entries shall be made of all dealings or
transactions of or in relation to the Notes, the Property and the business and affairs of Borrower
(or in the case of the Maryland Property, Maryland Loan Guarantor) relating to the Property which
shall reflect all items of income and expense in connection with the operation of the Property and
in connection with any services, equipment or furnishings provided in connection with the operation
of the Property, in accordance with GAAP. Lender and its authorized representatives shall have the
right, at reasonable times and upon reasonable notice, to examine the books and records of Borrower
(or in the case of the Maryland Property, Maryland Loan Guarantor) relating to the operation of the
Property and to make such copies or extracts thereof as Lender may reasonably require.



11.2 Financial Statements.



11.2.1 Quarterly Reports. Commencing not later than forty-five (45) days following the end
of each Fiscal Quarter (commencing with the Fiscal Quarter ending in June, 2006), Borrower shall
deliver, and shall cause Master Lessee to deliver, to Lender unaudited financial statements of
Guarantor, Borrower, Maryland Loan Guarantor and Master Lessee, internally prepared in accordance
with GAAP, reporting Master Lessee’s EBITDAR, including (i) a balance sheet and profit and loss
statement, as of the end of such Fiscal Quarter and for the corresponding Fiscal Quarter of the
previous year, including a statement of net income (in respect of the Property) for the year to
date and (ii) a statement of revenues and expenses for such Fiscal Quarter, together with a
comparison of the year to date results with (A) the results for the same period of the previous
year, (B) the results that had been projected by Borrower and Master Lessee for such period and (C)
the portion of the Annual Budget applicable to such period, and (c) a calculation of the LCR for
such period and a statement of the Master Lease Variable Additional Rent and Master Lease Recurrent
Additional Rent for such period. Such statements for each Fiscal Quarter shall be accompanied by
an Officer’s Certificate certifying to the signer’s knowledge, (1) that such statements fairly
represent the financial condition and results of operations of Borrower, Maryland Loan Guarantor
and Master Lessee, (2) that as of the date of such Officer’s Certificate, no Default exists under
this Agreement, the Notes or any other Loan Document or, if so, specifying the nature and status of
each such Default and the action then being taken by Borrower or proposed to be taken to remedy
such Default, (3) that as of the date of each Officer’s Certificate, no litigation exists (A)
involving Borrower, Maryland Loan Guarantor or the Property in which the amount involved is
$500,000 (in the aggregate) or more or in which all or substantially all of the potential liability
is not covered by insurance, or (B) involving Master Lessee which if adversely determined would be
reasonably likely to have a Material Adverse Effect, or if so, specifying such litigation and the
actions being taking in relation thereto and (4) the amount by which actual operating expenses were
greater than or less than the operating expenses anticipated in the applicable Annual Budget.
Borrower shall provide
such other financial information as shall be reasonably requested by Lender for purposes of
calculations to be made by Lender pursuant to the terms of this Agreement.


 


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11.2.2 Annual Reports. Concurrently with the public filings of any financial statements of
Borrower and in any event not later than one-hundred twenty (120) days after the end of each Fiscal
Year of Borrower’s operations, Borrower shall deliver, and shall cause Master Lessee to deliver, to
Lender (a) consolidated audited financial statements of Guarantor certified by an Independent
Accountant in accordance with GAAP and unaudited financial statements of Borrower, Maryland Loan
Guarantor and Master Lessee, including a balance sheet as of the end of such Fiscal Year and a
statement of revenues and expenses for such Fiscal Year, as well as a supplemental schedule of net
income or loss presenting the net income or loss for the Property and the figures for the previous
Fiscal Year and the figures set forth in the Annual Budget for such Fiscal Year, (b) a calculation
of the LCR, Master Lease Variable Additional Rent and Master Lease Recurrent Additional Rent for
such period and (c) copies of all federal income tax returns of Borrower, Maryland Loan Guarantor,
Master Lessee and Guarantor if and to the extend such tax returns are required to be filed under
applicable law. Such annual financial statements shall also be accompanied by an Officer’s
Certificate in the form required pursuant to Section 11.2.1.



11.2.3 Capital Expenditures Summaries. Borrower shall, or shall cause Master Lessee to,
within ninety (90) days after the end of each calendar year during the term of the Notes, deliver
to Lender an annual summary of material Capital Expenditures made at the Property during the prior
twelve (12) month period.



11.2.4 Master Lease. Without duplication of any other provision of this Agreement or any
other Loan Documents, Borrower shall deliver to Lender, within ten (10) Business Days of the
receipt thereof by Borrower, a copy of all reports prepared by Master Lessee, if any, pursuant to
the Master Lease, including, without limitation, the Annual Budget and any inspection reports.



11.2.5 Annual Budget. Borrower shall deliver to Lender the Annual Budget for Lender’s
review, but not approval, not more than ninety (90) days after the end of each Fiscal Year. Any
proposed modifications to such Annual Budget shall be delivered to Lender for its review, but not
approval.



11.2.6 Other Information. Borrower shall, promptly after written request by Lender or, if
a Securitization shall have occurred, the Rating Agencies, furnish or cause to be furnished to
Lender, in such manner and in such detail as may be reasonably requested by Lender or requested by
the Rating Agencies, such reasonable additional financial information as may be reasonably
requested by Lender or requested by the Rating Agencies with respect to the Property, Borrower,
Maryland Loan Guarantor, Master Lessee and/or Guarantor.



11.2.7 Consolidation. Lender acknowledges that all financial reporting of
Borrower and Maryland Loan Guarantor will be consolidated.


 


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XII. ENVIRONMENTAL MATTERS



12.1 Representations. Borrower (or in the case of the Maryland Property, Maryland Loan
Guarantor) hereby represents and warrants that except as set forth in the environmental reports and
studies delivered to Lender (the “Environmental Reports”), to Borrower’s knowledge, (i)
Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) has not engaged in or
knowingly permitted any operations or activities upon, or any use or occupancy of the Property, or
any portion thereof, for the purpose of or in any way involving the handling, manufacture,
treatment, storage, use, generation, release, discharge, refining, dumping or disposal of any
Hazardous Materials on, under, in or about the Property, or transported any Hazardous Materials to,
from or across the Property, except in all cases in material compliance with Environmental Laws and
only in the course of legitimate business operations at the Property; (ii) no tenant, occupant or
user of the Property, or any other Person, has engaged in or permitted any operations or activities
upon, or any use or occupancy of the Property, or any portion thereof, for the purpose of or in any
material way involving the handling, manufacture, treatment, storage, use, generation, release,
discharge, refining, dumping or disposal of any Hazardous Materials on, in or about the Property,
or transported any Hazardous Materials to, from or across the Property, except in all cases in
material compliance with Environmental Laws and only in the course of legitimate business
operations at the Property; (iii) no Hazardous Materials are presently constructed, deposited,
stored, or otherwise located on, under, in or about the Property except in material compliance with
Environmental Laws; (iv) no Hazardous Materials have migrated from the Property upon or beneath
other properties which would reasonably be expected to result in material liability for Borrower
(or in the case of the Maryland Property, Maryland Loan Guarantor); and (v) no Hazardous Materials
have migrated or threaten to migrate from other properties upon, about or beneath the Property
which would reasonably be expected to result in material liability for Borrower (or in the case of
the Maryland Property, Maryland Loan Guarantor).



12.2 Covenants.



12.2.1 Compliance with Environmental Laws. Subject to Borrower’s right to contest under
Section 7.3, each of Borrower and Maryland Loan Guarantor covenants and agrees with Lender
that it shall comply with all Environmental Laws. If at any time during the continuance of the
Lien of the Security Instrument, a Governmental Authority having jurisdiction over the Property
requires remedial action to correct the presence of Hazardous Materials in, around, or under the
Property (an “Environmental Event”), Borrower shall deliver prompt notice of the occurrence
of such Environmental Event to Lender. Within thirty (30) days after Borrower has knowledge of the
occurrence of an Environmental Event, Borrower shall deliver to Lender an Officer’s Certificate (an
“Environmental Certificate”) explaining the Environmental Event in reasonable detail and
setting forth the proposed remedial action, if any. Borrower shall promptly provide Lender with
copies of all notices which allege or identify any actual or potential violation or noncompliance
received by or prepared by or for Borrower in connection with any Environmental Law. For purposes
of this paragraph, the term “notice” shall mean any summons, citation, directive, order, claim,
pleading, letter, application, filing, report, findings, declarations or other materials pertinent
to compliance of the Property and Borrower (or in the case of the Maryland Property, Maryland Loan
Guarantor) with such Environmental Laws.


 


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12.3 Environmental Reports. Upon the occurrence and during the continuance of an
Environmental Event with respect to any Individual Property or any Event of Default, Lender shall
have the right to have its consultants perform a comprehensive environmental audit of such affected
Individual Property. Such audit shall be conducted by an environmental consultant chosen by Lender
and may include a visual survey, a record review, an area reconnaissance assessing the presence of
hazardous or toxic waste or substances, PCBs or storage tanks at such Individual Property, an
asbestos survey of such Individual Property, which may include random sampling of the Improvements
and air quality testing, and such further site assessments as Lender may reasonably require due to
the results obtained from the foregoing. Borrower (or in the case of the Maryland Property,
Maryland Loan Guarantor) grants Lender, its agents, consultants and contractors the right to enter
any Individual Property affected by an Environmental Event as reasonable or appropriate for the
circumstances for the purposes of performing such studies and the reasonable cost of such studies
shall be due and payable by Borrower to Lender upon demand and shall be secured by the Lien of the
Security Instrument. Lender shall not unreasonably interfere with, and Lender shall direct the
environmental consultant to use its commercially reasonable efforts not to hinder, Borrower’s,
Maryland Loan Guarantor’s, Master Lessee’s or any Tenant’s operations upon such Individual Property
when conducting such audit, sampling or inspections. By undertaking any of the measures identified
in and pursuant to this Section 12.3, Lender shall not be deemed to be exercising any
control over the operations of Borrower (or in the case of the Maryland Property, Maryland Loan
Guarantor) or the handling of any environmental matter or hazardous wastes or substances of
Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) for purposes of
incurring or being subject to liability therefor.



12.4 Environmental Indemnification. Borrower (or in the case of the Maryland Property,
Maryland Loan Guarantor) shall protect, indemnify, save, defend, and hold harmless the Indemnified
Parties from and against any and all liability, loss, damage, actions, causes of action, costs or
expenses whatsoever (including reasonable attorneys’ fees and expenses) and any and all claims,
suits and judgments which any Indemnified Party may suffer, as a result of or with respect to: (a)
any Environmental Claim relating to or arising from the Property; (b) the violation of any
Environmental Law in connection with the Property; (c) any release, spill, or the presence of any
Hazardous Materials affecting the Property; and (d) the presence at, in, on or under, or the
release, escape, seepage, leakage, discharge or migration at or from, the Property of any Hazardous
Materials, whether or not such condition was known or unknown to Borrower, provided that,
in each case, the liabilities and obligations of Borrower (or in the case of the Maryland Property,
Maryland Loan Guarantor) hereunder shall not apply to the extent that any event or condition
described in the foregoing clauses (a) through (d) (i) is fully insured against by
an Environmental Insurance Policy and the related insurer defends Lender and fully pays Lender’s
claims thereunder, (ii) is caused by or results from the gross negligence or willful misconduct of
any of the Indemnified Parties or any of their respective Affiliates, agents, employees or
contractors, or (iii) did not occur (but need not have been discovered) prior to (A) the
foreclosure of the Security Instrument, (B) the delivery by Borrower (or in the case of the
Maryland Property, Maryland Loan Guarantor) to Lender or its designee of a deed-in-lieu of
foreclosure with respect to the Property, or (C) Lender’s or its designee’s taking possession and
control of the Property after the occurrence of an Event of Default. If any action or other
proceeding shall be brought against Lender which Borrower (or in the case of the Maryland Property,
Maryland Loan Guarantor) is required to defend pursuant to the foregoing provisions
of this Section 12.4, upon written notice from Borrower to Lender (given reasonably
promptly following Lender’s notice to Borrower of such action or proceeding), Borrower (or in the
case of the Maryland Property, Maryland Loan Guarantor) shall be entitled to assume the defense
thereof, at Borrower’s expense, with counsel reasonably acceptable to Lender; provided,
however, Lender may, at its own expense, retain separate counsel to participate in such
defense, but such participation shall not be deemed to give Lender a right to control such defense,
which right Borrower expressly retains. Notwithstanding the foregoing, each Indemnified Party
shall have the right to employ separate counsel in any action or other proceeding which Borrower
(or in the case of the Maryland Property, Maryland Loan Guarantor) is required to defend pursuant
to the foregoing provisions of this Section 12.4, at Borrower’s expense if, in the
reasonable opinion of legal counsel, a conflict or potential conflict exists between the
Indemnified Party and Borrower that would make such separate representation advisable.
Notwithstanding the foregoing, Lender and the other Indemnified Parties agree to seek recovery
against Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) for losses for
which they are indemnified under this Section 12.4 only after a claim for such losses has
been filed under any Environmental Insurance Policy then in full force and effect which covers such
losses and Lender has received any written communication from the insurer rejecting such claim. In
addition, Borrower shall have no obligation to indemnify an Indemnified Party for damage or loss
resulting from such Indemnified Party’s gross negligence or willful misconduct.


 


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12.5 Recourse Nature of Certain Indemnifications. Except as otherwise provided in this
Agreement or in any other Loan Document, including, without limitation, the provisions of
Article XVIII, the indemnification provided in Section 12.4 shall be fully recourse
to Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) and shall be
independent of, and shall survive, the discharge of the Indebtedness, the release of the Lien
created by the Security Instrument, and/or the conveyance of title to the Property to Lender or any
purchaser or designee in connection with a foreclosure of the Security Instrument or conveyance in
lieu of foreclosure.




XIII. RESERVED




XIV. SECURITIZATION



14.1 Sale of Notes and Securitization. At the request of Lender and, to the extent not
already required to be provided by Borrower or Maryland Loan Guarantor under this Agreement,
Borrower and Maryland Loan Guarantor shall use reasonable efforts to cooperate with Lender and the
Rating Agencies in connection with the sale of one or more of the Notes or a participation interest
therein as part of the securitization (such sale and/or securitization, the
“Securitization”) of rated single or multi-class securities (the “Securities”)
secured by or evidencing ownership interests in the applicable Note or Notes and this Agreement,
including using reasonable efforts to cooperate with Lender and the Rating Agencies in connection
with the actions set forth in clauses (a) through (d) below, but Borrower shall not, in connection
with a Securitization, be required to incur, suffer or accept (except to a de minimis extent)) (i)
any greater obligations or liabilities than as currently set forth in the Loan Documents or (ii)
any cost or expense.



(a) Provided Information. (i) Use reasonable efforts to provide such financial and
other information (but not projections) with respect to the Property, Borrower, Maryland Loan
Guarantor, Master Lessee and Guarantor to the extent such information is reasonably available to
Borrower and provided any such request for financial information is consistent with the financial
reporting requirements set forth in Article XI, (ii) provide business plans (but not
projections) and budgets relating to the Property, to the extent previously prepared by or on
behalf of the Borrower, and (iii) cooperate with the holder of the Notes (and its representatives)
in obtaining such site inspection, appraisals, market studies, environmental reviews and reports,
engineering reports and other due diligence investigations of the Property, as may be reasonably
requested by the holder of the Notes or reasonably requested by the Rating Agencies (all
information provided pursuant to this Section 14.1 together with all other information
heretofore provided to Lender in connection with the Loan, as such may be updated, at Lender’s
request, in connection with a Securitization, or hereafter provided to Lender in connection with
the Loan or a Securitization, being herein collectively called the “Provided Information”);


 


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(b) Opinions of Counsel. Use reasonable efforts to cause to be rendered such
customary updates or customary modifications to the Opinions of Counsel delivered at the closing of
the Loan as may be reasonably requested by the holder of the Notes or the Rating Agencies in
connection with the Securitization;



(c) Modifications to Loan Documents. Execute such amendments to the Security
Instrument and Loan Documents as may be reasonably requested by Lender or the Rating Agencies in
order to achieve the required rating or to effect the Securitization (including, without
limitation, modifying the Payment Date and modifying the commencement and expiration of the
Interest Period, in each case to dates other than as originally set forth in the Notes to the
extent provided in the Note), and



(d) Cooperation with Rating Agencies. Borrower and Maryland Loan Guarantor shall, on
reasonable prior notice, (i) at Lender’s request, meet with representatives of the Rating Agencies
at reasonable times to discuss the business and operations of the Property and (ii) cooperate with
the reasonable requests of the Rating Agencies in connection with the Property. After a
Securitization and until the Obligations are paid in full, Lender may provide the Rating Agencies
with all financial reports and other information required hereunder, including copies of any
default notices or other material notices delivered to and received from Lender hereunder, to
enable them to continuously monitor the creditworthiness of Borrower and Maryland Loan Guarantor
and to permit an annual surveillance of the implied credit rating of the Securities.



14.2 Securitization Financial Statements. Borrower acknowledges that all financial
information delivered by Borrower to Lender pursuant to Article XI may, at Lender’s option,
be delivered to the Rating Agencies.



14.3 Securitization Indemnification.



14.3.1 Disclosure Documents. Borrower understands that certain of the Provided Information
may be included in disclosure documents in connection with the Securitization, including a
prospectus, private placement memorandum, collateral term sheet or a public registration statement
(each, a “Disclosure Document”) and may also be included in filings with
the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the
“Securities Act”) or the Securities and Exchange Act of 1934, as amended (the “Exchange
Act”), or provided or made available to investors or prospective investors in the Securities,
the Rating Agencies, and service providers relating to the Securitization. In the event that the
Disclosure Document is required to be revised prior to the sale of all Securities, upon request,
Borrower and Maryland Loan Guarantor shall reasonably cooperate with the holder of the Notes, at no
cost or expense to Borrower, in updating the Provided Information for inclusion or summary in the
Disclosure Document by providing all current information pertaining to Borrower, Maryland Loan
Guarantor and the Property reasonably requested by Lender:


 


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14.3.2 Indemnification Certificate. In connection with each applicable Disclosure
Document, Borrower and Maryland Loan Guarantor each agrees to provide, at Lender’s reasonable
request, an indemnification certificate:



(a) certifying that Borrower and Maryland Loan Guarantor each has carefully examined those
portions of such memorandum or prospectus, as applicable, reasonably designated in writing by
Lender for Borrower’s review pertaining to Borrower, Maryland Loan Guarantor, the Property,
Guarantor, the Loan and/or the Provided Information and insofar as such sections or portions
thereof specifically pertain to Borrower, Maryland Loan Guarantor, the Property, Guarantor, the
Provided Information or the Loan (such portions, the “Relevant Portions”), the Relevant
Portions do not (except to the extent specified by Borrower if Borrower does not agree with the
statements therein), as of the date of such certificate, to Borrower’s knowledge, contain any
untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements made, in the light of the circumstances under which they were made, not misleading.



(b) subject to the provisions of Article XVIII hereof, indemnifying Lender and the
Affiliates of Deutsche Bank Securities, Inc. (collectively, “DBS”) as well as Wachovia
Bank, National Association and its Affiliates (“Wachovia”) that have prepared the
Disclosure Document relating to the Securitization, each of their respective directors, each of
their respective officers who have signed the Disclosure Document and each person or entity who
controls DBS or Wachovia within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act (collectively, the “Lender Group”), and DBS and Wachovia, together with
the Lender Group, each of their respective directors and each person who controls DBS or Wachovia
or the Lender Group, within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act (collectively, the “Underwriter Group”) for any actual, out-of-pocket losses,
third party claims, damages (excluding lost profits, diminution in value and other consequential
damages) or liabilities arising out of third party claims (the “Liabilities”) to which any
member of the Underwriter Group may become subject to the extent such Liabilities arise out of or
are based upon any untrue statement of any material fact contained in the Relevant Portions and in
the Provided Information or arise out of or are based upon the omission by Borrower to state
therein a material fact required to be stated in the Relevant Portions in order to make the
statements in the Relevant Portions in light of the circumstances under which they were made, not
misleading (except that (x) Borrower’s obligation to indemnify in respect of any information
contained in a Disclosure Document that is derived in part from information provided by Borrower or
any Affiliate of Borrower and in part from information provided by others unrelated to or not
employed by Borrower, and (y) Borrower shall have no responsibility
for the failure of any member of the Underwriting Group to accurately transcribe written
information supplied by Borrower or to include such portions of the Provided Information);
provided that Liabilities shall exclude all actual, out-of-pocket losses, third party
claims, damages or liabilities arising out any corrections, qualifications and/or clarifications to
the Relevant Portions which are disclosed by Borrower to Lender in writing as provided above and as
to which Lender does not change the Relevant Portions to reflect such corrections, qualifications
and/or clarifications). The indemnity contained in the indemnification certificate will be in
addition to any liability which Borrower may otherwise have.


 


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(c) The indemnification certificate shall provide that Borrower’s and Maryland Loan
Guarantor’s liability under the indemnification certificate shall be (i) limited solely to
Liabilities arising solely out of or based upon any such untrue statement or omission made in a
Disclosure Document in reliance upon and in conformity with the Relevant Portions and (ii) subject
to the provisions of Article XVIII hereof.



(d) The indemnification certificate shall also provide that promptly after receipt by an
indemnified party of notice of the commencement of any action covered by the indemnification
certificate, such indemnified party will notify the indemnifying party in writing of the
commencement thereof, but the omission to so notify the indemnifying party will not relieve the
indemnifying party from any liability which the indemnifying party may have to any indemnified
party thereunder except to the extent that failure to notify causes prejudice to the indemnifying
party. In the event that any action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly
with any other indemnifying party, to participate therein and, to the extent that it (or they) may
elect by written notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. After such notice from the indemnifying party to such
indemnified party of its assumption of such defense, the indemnifying party shall not be liable for
any legal or other expenses subsequently incurred by such indemnified party in connection with the
defense thereof; provided, however, if an indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there are any legal defenses
available to it that are different from or in conflict with those available to the indemnifying
party, or indemnified party or parties shall have the right to select separate counsel to assert
such legal defenses and to otherwise participate in the defense of such action on behalf of such
indemnified party or parties at the expense of the indemnifying party.



(e) Retention of Servicer. Lender reserves the right to retain the Servicer at no
cost or expense to Borrower. Lender has advised Borrower that the Servicer initially retained by
Lender shall be Wachovia Bank, National Association or its Affiliate. Borrower shall pay any fees
and expenses of the Servicer and any reasonable third party fees and expenses of the Servicer,
including, without limitation, special servicing fees, work out fees and reasonable attorneys fees
and disbursements, in connection with a prepayment, release or substitution of the Property,
assumption or modification of the Loan, or following an event of Default, special servicing or work
out of the Loan or enforcement of the Loan Documents; provided however that Servicer fees
(excluding any reasonable third party fees and expenses) for releases, substitutions and
prepayments shall not exceed the following amounts:




	 	(i)	 	Releases: $2500 (inclusive of payoff calculation) per release;

	 
	 	(ii)	 	Substitutions: $7500 per substitution; and

	 
	 	(iii)	 	Prepayments: $300 for payoff quote calculation.





 


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XV. ASSIGNMENTS AND PARTICIPATIONS



15.1 Assignment and Acceptance. Lender may assign to one or more Persons all or a portion
of its rights and obligations under this Agreement and the other Loan Documents (including, without
limitation, all or a portion of one or more of the Notes); provided that the parties to
each such assignment shall execute and deliver to Lender, for its acceptance and recording in the
Register (as hereinafter defined), an Assignment and Acceptance. In addition, Lender may
participate to one or more Persons all or any portion of its rights and obligations under this
Agreement and the other Loan Documents (including without limitation, all or a portion of one or
more of the Notes) utilizing such documentation to evidence such participation and the parties’
respective rights thereunder as Lender, in its sole discretion, shall elect.



15.2 Effect of Assignment and Acceptance. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in such Assignment and Acceptance, (i) the
assignee thereunder shall be a party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of Lender, as the case may be, hereunder and such assignee shall be deemed to have
assumed such rights and obligations, and (ii) Lender shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement and the other Loan
Documents (and, in the case of an Assignment and Acceptance covering all or the remaining portion
of Lender’s rights and obligations under this Agreement and the other Loan Documents, Lender shall
cease to be a party hereto) accruing from and after the effective date of the Assignment and
Acceptance, except with respect to (A) any payments made by Borrower to Lender pursuant to the
terms of the Loan Documents after the effective date of the Assignment and Acceptance and (B) any
letter of credit, cash deposit or other deposits or security (other than the Lien of the Security
Instrument and the other Loan Documents) delivered to or for the benefit of or deposited with
German American Capital Corporation, on behalf of the holders of the Notes, as Lender, for which
German American Capital Corporation, on behalf of the holders of the Notes, shall remain
responsible for the proper disposition thereof until such items are delivered to a party who is
qualified as an Approved Bank and agrees to hold the same in accordance with the terms and
provisions of the agreement pursuant to which such items were deposited.



15.3 Content. By executing and delivering an Assignment and Acceptance, Lender and the
assignee thereunder confirm to and agree with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance, Lender makes no representation or
warranty and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or any other Loan
Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or purported to be
created under or in connection with, this Agreement or any other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto; (ii) Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition of Borrower or
Maryland Loan Guarantor or the performance or observance by Borrower or Maryland Loan Guarantor of
any of its obligations under any Loan Documents or any other instrument or document furnished
pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents; (v) such assignee
appoints and authorizes Lender to take such action as agent on its behalf and to exercise such
powers and discretion under the Loan Documents as are delegated to Lender by the terms hereof
together with such powers and discretion as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform, in accordance with their terms, all of the obligations which
by the terms of this Agreement and the other Loan Documents are required to be performed by Lender.


 


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15.4 Register. Lender shall maintain a copy of each Assignment and Acceptance delivered to
and accepted by it and a register for the recordation of the names and addresses of Lender and each
assignee pursuant to this Article XV and the principal amount of the Loan owing to each
such assignee from time to time (the “Register”). The entries in the Register shall, with
respect to such assignees, be conclusive and binding for all purposes, absent manifest error. The
Register shall be available for inspection by Borrower or any assignee pursuant to this Article
XV at any reasonable time and from time to time upon reasonable prior written notice.



15.5 Substitute Notes. Upon its receipt of an Assignment and Acceptance executed by an
assignee, together with any Note or Notes subject to such assignment, Lender shall, if such
Assignment and Acceptance has been completed and is in substantially the form of Exhibit M
hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in
the Register, and (iii) give prompt written notice thereof to Borrower. Within five (5) Business
Days after its receipt of such notice, Borrower, at Lender’s expense, shall execute and deliver to
Lender in exchange and substitution for the surrendered Note or Notes a new Note to the order of
such assignee in an amount equal to the portion of the Loan assigned to it and a new Note to the
order of Lender in an amount equal to the portion of the Loan retained by it hereunder. Such new
Note or Notes shall be in an aggregate principal amount equal to the aggregate then outstanding
principal amount of such surrendered Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of the Notes
(modified, however, to the extent necessary so as not to impose duplicative or
increased obligations on Borrower and to delete obligations previously satisfied by Borrower).
Notwithstanding the provisions of this Article XV, Borrower shall not be responsible or
liable for any additional taxes, reserves, adjustments or other costs and expenses that are related
to, or arise as a result of, any transfer of the Loan or any interest or participation therein that
arise from the transfer of the Loan or any interest or participation therein or from the execution
of the new Note contemplated by this Section 15.5, including, without limitation, any
mortgage tax. Lender
and/or the assignees, as the case may be, shall from time to time designate one agent through which
Borrower shall request all approvals and consents required or contemplated by this Agreement and on
whose statements Borrower may rely.


 


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15.6 Participations. Each assignee pursuant to this Article XV may sell
participations to one or more Persons (other than Borrower or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement and the other Loan Documents
(including, without limitation, all or a portion of the Note held by it); provided,
however, that (i) such assignee’s obligations under this Agreement and the other Loan
Documents shall remain unchanged, (ii) such assignee shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such assignee shall remain the holder
of any such Note for all purposes of this Agreement and the other Loan Documents, (iv) Borrower,
Lender and the assignees pursuant to this Article XV shall continue to deal solely and
directly with such assignee in connection with such assignee’s rights and obligations under this
Agreement and the other Loan Documents, (v) Borrower shall bear no costs or expenses in connection
therewith, (vi) Borrower shall not be required to incur, suffer or accept (except to a de minimis
extent)) any greater obligations or liabilities than as currently set forth in the Loan Documents,
and (vii) the economics of the Loan, taken as a whole, shall not change in a manner which is
adverse to Borrower. In the event that more than one (1) party comprises Lender, Lender shall
designate one party to act on the behalf of all parties comprising Lender in providing approvals
and all other necessary consents under the Loan Documents and on whose statements Borrower may
rely.



15.7 Disclosure of Information. Any assignee pursuant to this Article XV may, in
connection with any assignment or participation or proposed assignment or participation pursuant to
this Article XV, disclose to the assignee or participant or proposed assignee or
participant, any information relating to Borrower furnished to such assignee by or on behalf of
Borrower; provided, however, that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree in writing for the benefit of Borrower
to preserve the confidentiality of any confidential information received by it.



15.8 Security Interest in Favor of Federal Reserve Bank. Notwithstanding any other
provision set forth in this Agreement or any other Loan Document, any assignee pursuant to this
Article XV may at any time create a security interest in all or any portion of its rights
under this Agreement or the other Loan Documents (including, without limitation, the amounts owing
to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System.




XVI. RESERVE ACCOUNTS



16.1 Tax Reserve Account. In accordance with the time periods set forth in Section
3.1, Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) shall cause to
be deposited into the Tax Reserve Account an amount equal to (a) one-twelfth of the annual
Impositions that Lender reasonably estimates, based on the most recent tax bill for the Property,
will be payable during the next ensuing twelve (12) months in order to accumulate with Lender
sufficient funds to pay all such Impositions thirty (30) days prior to the imposition of any
interest, charges or expenses for the non-payment thereof and (b) one-twelfth of the annual Other
Charges that Lender reasonably estimates will be payable during the next ensuing twelve (12) months
(said monthly amounts in (a) and (b) above hereinafter called the “Monthly Tax Reserve
Amount,” and the aggregate amount of funds held in the Tax Reserve Account being the “Tax
Reserve Amount”). As of the Closing Date, the Monthly Tax Reserve Amount is $739,696.79, but
such amount is subject to adjustment by Lender upon notice to Borrower. The Monthly Tax Reserve
Amount shall be paid by Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor)
to Lender on each



 


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Payment Date. Lender will apply the Monthly Tax Reserve Amount to payments of
Impositions and Other Charges required to be made by Borrower (or in the case of the Maryland
Property, Maryland Loan Guarantor) pursuant to Article V and Article VII and under
the Security Instrument, subject to Borrower’s right to contest Impositions in accordance with
Section 7.3. In making any payment relating to the Tax Reserve Account, Lender may do so
according to any bill, statement or estimate procured from the appropriate public office, without
inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax,
assessment, sale, forfeiture, tax lien or title or claim thereof. If the amount of funds in the
Tax Reserve Account shall exceed the amounts due for Impositions and Other Charges pursuant to
Article V and Article VII, Lender shall credit such excess against future payments
to be made to the Tax Reserve Account. If at any time Lender reasonably determines that the Tax
Reserve Amount is not or will not be sufficient to pay Impositions and Other Charges by the dates
set forth above, Lender shall notify Borrower of such determination and Borrower (or in the case of
the Maryland Property, Maryland Loan Guarantor) shall increase its monthly payments to Lender by
the amount that Lender reasonably estimates is sufficient to make up the deficiency at least thirty
(30) days prior to the imposition of any interest, charges or expenses for the non-payment of the
Impositions and Other Charges. Upon payment of the Impositions and Other Charges, Lender shall
reassess the amount necessary to be deposited in the Tax Reserve Account for the succeeding period,
which calculation shall take into account any excess amounts remaining in the Tax Reserve Account.



16.2 Insurance Reserve Account. Borrower (or in the case of the Maryland Property,
Maryland Loan Guarantor) shall, in accordance with the time periods set forth in Section
3.1, cause to be deposited into the Insurance Reserve Account an amount equal to one-twelfth of
the insurance premiums that Lender reasonably estimates, based on the most recent bill, will be
payable for the renewal of the coverage afforded by the insurance policies upon the expiration
thereof in order to accumulate with Lender sufficient funds to pay all such insurance premiums
thirty (30) days prior to the expiration of the policies required to be maintained by Borrower
pursuant to the terms hereof (said monthly amounts hereinafter called the “Monthly Insurance
Reserve Amount,” and the aggregate amount of funds held in the Insurance Reserve Account being
the “Insurance Reserve Amount”). As of the Closing Date, the Monthly Insurance Reserve
Amount is $206,007.88, but such amount is subject to adjustment by Lender upon notice to Borrower.
The Monthly Insurance Reserve Amount shall be paid by Borrower (or in the case of the Maryland
Property, Maryland Loan Guarantor) to Lender on each Payment Date. Lender will apply the Monthly
Insurance Reserve Amount to payments of insurance premiums required to be made by Borrower (or in
the case of the Maryland Property, Maryland Loan Guarantor) pursuant to Article VI and
under the Security Instrument. In making any payment relating to the Insurance Reserve Account,
Lender may do so according to any bill, statement or estimate procured from the insurer or agent,
without inquiry into the accuracy of such bill, statement or estimate or into the validity thereof.
If the amount of funds in the Insurance Reserve Account shall exceed the amounts due for insurance
premiums pursuant to Article VI, Lender shall credit such excess against future payments to
be made to the Insurance Reserve Account. If at any time
Lender reasonably determines that the Insurance Reserve Amount is not or will not be sufficient to
pay insurance premiums by the dates set forth above, Lender shall notify Borrower of such
determination and Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) shall
increase its monthly payments to Lender by the amount that Lender reasonably estimates is
sufficient to make up the deficiency at least thirty (30) days prior to expiration of the
applicable insurance policies. Upon payment of such insurance premiums, Lender shall reassess the
amount necessary to be deposited in the Insurance Reserve Account for the succeeding period, which
calculation shall take into account any excess amounts remaining in the Insurance Reserve Account.


 


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16.3 Structural Repair Reserve Account.



(a) In accordance with the time periods set forth in Section 3.1, Borrower (or in the
case of the Maryland Property, Maryland Loan Guarantor) shall deposit, or cause to be deposited
into the Structural Repair Reserve Account, an amount equal to the Monthly Structural Repair
Reserve Amount to be held by the Cash Management Bank for the benefit of Lender as additional
security for the Loan in accordance with Section 3.1 and the Account Agreement.



(b) Lender shall make disbursements from the Structural Repair Reserve Account to or as
directed by Borrower to pay or reimburse Borrower for the cost of Structural Repairs in accordance
with and in the manner provided in this Section 16.3. Any Structural Repairs that in the
aggregate with all related Structural Repairs (collectively, a “Project”) would reasonably
be expected to cost in excess of the Threshold Amount shall be subject to compliance with
Section 10.2. Lender shall, within fifteen (15) Business Days of a written request from
Borrower and upon satisfaction of the requirements set forth in this Section 16.3, disburse
to Borrower amounts from the Structural Repair Reserve Account necessary to pay for the actual
costs incurred with respect to Structural Repairs, which work shall be subject to the inspection of
Lender for compliance with the requirements of this Agreement. In no event shall Lender be
obligated to disburse funds from the Structural Repair Reserve Account if a Monetary Default or an
Event of Default exists.



(c) Each request for disbursement from the Structural Repair Reserve Account shall be in a
form reasonably specified or reasonably approved by Lender and be submitted together with an
Officer’s Certificate specifying the specific items for which the disbursement is requested,
certifying that such item qualifies as a Structural Repair, the estimated cost for the applicable
Project through completion and the cost of each item purchased. Each request for disbursement
shall be delivered at least fifteen (15) Business Days prior to the date of the requested
disbursement and shall include copies of invoices for all costs incurred and each request shall
include evidence satisfactory to Lender of payment of all such amounts or evidence that such
amounts will be paid by such disbursement. Borrower shall not make a request for disbursement from
the Structural Repair Reserve Account more frequently than once in any calendar month and the total
amount of any request shall not be less than $10,000 (except in the case of the final request for
disbursement).


 


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16.4 Immediate Repair and Remediation Reserve Account.



(a) On the Closing Date, a portion of the Loan in the amount of $404,310, representing one
hundred twenty-five percent (125%) of the cost to complete the Immediate Repairs and Remediation,
will be deposited by Lender into the Immediate Repair and Remediation Reserve Account. Subject to
the pre-conditions to disbursement set forth in this Section 16.4, Lender shall make
disbursements of amounts deposited in the Immediate Repair and Remediation Reserve Account from
time to time (but no more frequently than once a calendar month) to pay for the costs of completing
the Immediate Repairs and Remediation. Lender shall, upon written request from Borrower and
satisfaction of the requirements to final disbursement set forth in this Section 16.4 (the
“Completion”), instruct the Cash Management Bank to disburse to Borrower the amounts
remaining in the Immediate Repair and Remediation Reserve Account. Subject to Excusable Delay, the
Completion shall occur on or before the date which is one hundred eighty (180) days following the
date hereof (the “Immediate Repairs and Remediation Completion Deadline”). In the event
Completion does not occur on or before the Immediate Repairs Completion Deadline, Lender shall
notify Borrower of such fact and Borrower shall have a period of at least thirty (30) days, as
determined by Lender and set forth in such notice, to effect the Completion. It shall be an Event
of Default hereunder in the event the Completion does not occur on or before the Immediate Repairs
and Remediation Completion Deadline or any date afforded by Lender’s notice to effect the
Completion as set forth in Lender’s notice, and upon such event, Lender shall have no further
obligation to disburse the remaining amounts deposited in the Immediate Repair and Remediation
Reserve Account to Borrower and such remaining amounts shall be applied by Lender reduce the
Principal Amount then outstanding under the Notes.



(b) Amounts deposited in the Immediate Repair and Remediation Reserve Account may be disbursed
from time to time, (provided that Borrower shall not make a request for disbursement
therefrom more frequently than once in any calendar month and the total amount of any request shall
not be less than $10,000 (except in the case of the final request for disbursement)) upon
Borrower’s satisfaction of the conditions set forth in subsection (c) below, except that the final
disbursement of amounts deposited in the Immediate Repair and Remediation Reserve Account shall not
be disbursed until the conditions set forth in subsection (c)(ii)(E) shall have also been
satisfied.



(c) The obligation of Lender to disburse any portion of the amounts deposited in the Immediate
Repair and Remediation Reserve Account is subject to the condition precedent that all of the
following requirements shall have been completed to Lender’s reasonable satisfaction:




	 	(i)	 	No Event of Default shall have occurred and be continuing;

	 
	 	(ii)	 	Lender shall have received the following items:






(A) a request for advance duly executed by an authorized officer of the Borrower delivered to
Lender no earlier than ten (10) Business Days prior to the date the disbursement is requested;



(B) with respect to all but the final disbursement of the amounts deposited in the Immediate
Repair and Remediation Reserve Account, a certificate from
Borrower certifying to Lender that there are sufficient funds remaining in the Immediate
Repair and Remediation Reserve Account to attain Completion;


 


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(C) with respect to all but the final disbursement of the amounts deposited in the Immediate
Repair and Remediation Reserve Account, evidence reasonably satisfactory to Lender that the
applicable Immediate Repairs and Remediation have been completed and all amounts due in respect
thereof have been paid, including specific general ledger entries and/or copies of invoices, in
either case, equal to (or greater than) the amount being disbursed from the Immediate Repair and
Remediation Reserve Account;



(D) payment of all of Lender’s costs and expenses, if any, incurred in connection with
disbursement from the Immediate Repair and Remediation Reserve Account, including, without
limitation, reasonable attorneys fees and disbursements (which may, at the option of Lender, be
paid from the amounts deposited in the Immediate Repair and Remediation Reserve Account); and



(E) in connection with the final disbursement (in addition to satisfying each of the
conditions, other than the condition in clauses (B) and (C), set forth above), a certificate from
Lender’s Consultant certifying to Lender that the Immediate Repairs and Remediation have been
completed to the satisfaction of such Person.



16.5 Master Lease Variable Additional Rent Reserve Account and LCR Deterioration Reserve
Account.



(a) Pursuant to and in accordance with the provisions of Section 3.1, during a Low LCR
Cash Sweep Period, certain monies shall be transferred, in accordance with Section 3.1
hereof, from the Holding Account into the Master Lease Variable Additional Rent Reserve Account and
retained by Lender as additional security for the Indebtedness and shall be applied or disbursed as
hereinafter provided. From and after the occurrence and continuation of an Event of Default,
Lender shall have the right to apply any amounts then remaining in the Master Lease Variable
Additional Rent Reserve Account to repay the Indebtedness or any other amounts due hereunder or
under the other Loan Documents in such order, manner and amount as Lender shall determine in its
sole discretion. Provided no Event of Default has occurred and is then continuing hereunder,
Lender shall instruct the Cash Management Bank to transfer to Borrower’s Account, free and clear of
all Liens, any amounts remaining in the Master Lease Variable Additional Rent Reserve Account
within ten (10) Business Days following the termination of a Low LCR Cash Sweep Period.



(b) Following each Fiscal Quarter after the Closing Date, Lender will perform an LCR Test to
determine whether a Low LCR Cash Sweep Period has occurred and is continuing. Such LCR Test shall
be made by Lender based on the financial information delivered by Borrower pursuant to Section
11.1 hereof. Pursuant to and in accordance with the provisions of Section 3.1, during
a Low LCR Cash Sweep Period, the Excess Proceeds shall be transferred, in accordance with
Section 3.1 hereof, from the Holding Account into the LCR Deterioration Reserve Account and
retained by Lender as additional security for the Indebtedness and shall be
applied or disbursed as hereinafter provided. From and after the occurrence and continuation
of an Event of Default, Lender shall have the right to apply any amounts then remaining in the LCR
Deterioration Reserve Account to repay the Indebtedness or any other amounts due hereunder or under
the other Loan Documents in such order, manner and amount as Lender shall determine in its sole
discretion. Provided no Event of Default has occurred and is then continuing hereunder, Lender
shall instruct the Cash Management Bank to transfer to Borrower’s Account, free and clear of all
Liens, any amounts remaining in the LCR Deterioration Reserve Account within ten (10) Business Days
following the termination of a Low LCR Cash Sweep Period.


 


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XVII. DEFAULTS



17.1 Event of Default.



(a) Each of the following events shall constitute an event of default hereunder (an “Event
of Default”):



(i) if (A) the Indebtedness is not paid in full on the Maturity Date, (B) any regularly
scheduled monthly payment of interest due under the Notes is not paid in full on or before the
fifth (5th) calendar day following the applicable Payment Date (or, if such fifth
(5th) calendar day is not a Business Day, on or before the immediately preceding
Business Day), (C) any prepayment of principal due under this Agreement or the Notes is not paid on
or before the fifth (5th) calendar day following the date the same is due (or, if such
fifth (5th) calendar day is not a Business Day, on or before the immediately preceding
Business Day), (D) the Yield Maintenance Premium is not paid when due, (E) any deposit to the
Holding Account is not made when due, and such failure continuing for ten (10) Business Days after
Lender delivers written notice thereof to Borrower, or (F) except as to any amount included in (A),
(B), (C) or (D) of this clause (i), any other amount payable pursuant to this Agreement, the Notes
or any other Loan Document is not paid in full when due and payable in accordance with the
provisions of the applicable Loan Document, with such failure continuing for ten (10) Business Days
after Lender delivers written notice thereof to Borrower;



(ii) subject to Borrower’s right to contest as set forth in Section 7.3, if any of the
Impositions or Other Charges are not paid prior to the imposition of any interest, penalty, charge
or expense for the non-payment thereof;



(iii) if the insurance policies required by Section 6.1 are not kept in full force and
effect or if certified copies of any of such insurance policies are not delivered to Lender within
fifteen (15) days of the effective date of such insurance policies;



(iv) if, except as permitted pursuant to this Agreement, any of the following shall occur:
(a) any Transfer of any direct or indirect legal, beneficial or equitable interest in all or any
portion of the Property, (b) any Transfer of any direct or indirect interest in Borrower, Master
Lessee, Maryland Loan Guarantor any other SPE Entity or Guarantor, (c) Borrower (or in the case of
the Maryland Property, Maryland Loan Guarantor) fails to remove any Lien or encumbrance (other than
a Permitted Encumbrance) on all or any portion of the Property (other than a Permitted Encumbrance)
within thirty (30) days after Lender delivers written notice thereof to Borrower, (d) any pledge,
hypothecation, creation of a security interest in or other
encumbrance of any direct or indirect interests in Borrower, Maryland Loan Guarantor, Master
Lessee, any other SPE Entity or Guarantor or (e) the filing of a declaration of condominium with
respect to the Property;


 


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(v) if any representation or warranty made by Borrower or Maryland Loan Guarantor herein or by
Borrower, Maryland Loan Guarantor or Guarantor in any other Loan Document, or in any report,
certificate, financial statement or other instrument, agreement or document furnished to Lender
shall have been false or misleading in any material respect as of the date the representation or
warranty was made, unless, if the representation or warranty is of a nature that can be made to be
true and correct as of the then-current date, and is not likely to have a Material Adverse Effect
and was not intentionally false or misleading in any material respect when made, then same does not
constitute an Event of Default if Borrower makes such representation or warranty true and correct
and not misleading within thirty (30) days after written notice thereof from Lenders;



(vi) if Borrower, Maryland Loan Guarantor, Master Lessee, any other SPE Entity or Guarantor
shall make an assignment for the benefit of creditors;



(vii) if a receiver, liquidator or trustee shall be appointed for Borrower, Maryland Loan
Guarantor, Master Lessee, any other SPE Entity or Guarantor or Borrower, Maryland Loan Guarantor,
Master Lessee, any other SPE Entity or Guarantor shall be adjudicated a bankrupt or insolvent, or
if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law,
or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in
by, Borrower, Maryland Loan Guarantor, Master Lessee, any other SPE Entity or Guarantor, or if any
proceeding for the dissolution or liquidation of Borrower, Maryland Loan Guarantor, Master Lessee,
any other SPE Entity or Guarantor shall be instituted; provided, however, if such
appointment, adjudication, petition or proceeding was involuntary and not consented to by Borrower,
Maryland Loan Guarantor, Master Lessee, any other SPE Entity or Guarantor upon the same not being
discharged, stayed or dismissed within one hundred (120) days;



(viii) if Borrower, Maryland Loan Guarantor, any other SPE Entity or Guarantor, as applicable,
attempts to assign its rights under this Agreement or any of the other Loan Documents or any
interest herein or therein in contravention of the Loan Documents;



(ix) with respect to any term, covenant or provision set forth herein (other than the other
subsections of this Section 17.l) which specifically contains a notice requirement or grace
period, if Borrower, Maryland Loan Guarantor, any other SPE Entity or Guarantor shall be in default
under such term, covenant or condition after the giving of such notice or the expiration of such
grace period;



(x) if any of the assumptions contained in the Non-Consolidation Opinion, in any Additional
Non-Consolidation Opinion or in any other non-consolidation opinion delivered to Lender in
connection with the Loan, or in any other non-consolidation opinion delivered subsequent to the
closing of the Loan, is or shall become untrue;



(xi) if Borrower or Maryland Loan Guarantor shall fail to comply with any covenants set forth
in Section 5.1.4, Section 5.2.9 or Section 5.2.21;



(xii) except as provided clause (xi) above, if Borrower or Maryland Loan Guarantor shall fail
to comply with any covenants set forth in Article V or Section XI with such failure
continuing for ten (10) Business Days after Lender delivers written notice thereof to Borrower;


 


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(xiii) if Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) shall
fail to comply with any covenants set forth in Section 3(d) or Section 8 of the Security Instrument
with such failure continuing for ten (10) Business Days after Lender delivers written notice
thereof to Borrower;



(xiv) if Borrower or Maryland Loan Guarantor shall fail to deposit any sums required to be
deposited in the Collateral Accounts pursuant to Article XVI when due;



(xv) if this Agreement or any other Loan Document or any Lien granted hereunder or thereunder,
in whole or in part, shall terminate or shall cease to be effective or shall cease to be a legally
valid, binding and enforceable obligation of Borrower, Maryland Loan Guarantor or Guarantor, or any
Lien securing the Indebtedness shall, in whole or in part, cease to be a perfected first priority
Lien, subject to the Permitted Encumbrances (except in any of the foregoing cases in accordance
with the terms hereof or under any other Loan Document or by reason of any affirmative act of
Lender);



(xvi) except as expressly permitted pursuant to the Loan Documents, if Borrower (or in the
case of the Maryland Property, Maryland Loan Guarantor) or Master Lessee grants any easement,
covenant or restriction (other than the Permitted Encumbrances) over the Property and such
easement, covenant or restriction is not terminated within thirty (30) days after Lender delivers
written notice thereof to Borrower;



(xvii) if the Master Lease shall be materially modified without the prior written consent of
Lender, except as expressly permitted hereunder;



(xviii) if Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) shall
be in default in any material obligation on the part of Borrower (or in the case of the Maryland
Property, Maryland Loan Guarantor) beyond any applicable notice periods and cure periods pursuant
to the terms of the Master Lease and such default is reasonably likely to have a Material Adverse
Effect;




(xix) if the Master Lease shall terminate;



(xx) if Borrower or Maryland Loan Guarantor shall continue to be in Default under any of the
other terms, covenants or conditions of this Agreement or of any Loan Document not specified in
clauses (i) through (xix) above, for thirty (30) days after notice from Lender; provided,
however, that if such Default is susceptible of cure but cannot reasonably be cured within
such thirty (30) day period and provided, further, that Borrower or Maryland Loan
Guarantor, as applicable, shall have commenced to cure such Default within such thirty (30) day
period and thereafter diligently proceeds to cure the same, such thirty (30) day period shall be
extended for such time as is reasonably necessary for Borrower or Maryland Loan Guarantor, as
applicable, in the exercise of due diligence to cure such Default, such additional period not to
exceed ninety (90) days.


 


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(b) Unless waived in writing by Lender, upon the occurrence and during the continuance of an
Event of Default (other than an Event of Default described in clauses (a)(vi), (vii) or (viii)
above) Lender may, without notice or demand, in addition to any other rights or remedies available
to it pursuant to this Agreement and the other Loan Documents or at law or in equity, take such
action that Lender deems advisable to protect and enforce its rights against Borrower and Maryland
Loan Guarantor and in the Property, including, without limitation, (i) declaring immediately due
and payable the entire Principal Amount together with interest thereon and all other sums due by
Borrower and Maryland Loan Guarantor under the Loan Documents, (ii) collecting interest on the
Principal Amount at the Default Rate whether or not Lender elects to accelerate the Notes and (iii)
enforcing or availing itself of any or all rights or remedies set forth in the Loan Documents
against Borrower, Maryland Loan Guarantor and the Property, including, without limitation, all
rights or remedies available at law or in equity; and upon any Event of Default described in
clauses (a)(vi) or (a)(vii) above, the Indebtedness and all other obligations of Borrower and
Maryland Loan Guarantor hereunder and under the other Loan Documents shall immediately and
automatically become due and payable, without notice or demand, and Borrower and Maryland Loan
Guarantor each hereby expressly waives any such notice or demand, anything contained herein or in
any other Loan Document to the contrary notwithstanding. The foregoing provisions shall not be
construed as a waiver by Lender of its right to pursue any other remedies available to it under
this Agreement, the Security Instrument or any other Loan Document. Any payment hereunder may be
enforced and recovered in whole or in part at such time by one or more of the remedies provided to
Lender in the Loan Documents.



17.2 Remedies.



(a) Unless waived in writing by Lender, upon the occurrence and during the continuance of an
Event of Default, all or any one or more of the rights, powers, privileges and other remedies
available to Lender against Borrower and Maryland Loan Guarantor under this Agreement or any of the
other Loan Documents executed and delivered by, or applicable to, Borrower or Maryland Loan
Guarantor or at law or in equity may be exercised by Lender at any time and from time to time,
whether or not all or any of the Indebtedness shall be declared due and payable, and whether or not
Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its
rights and remedies under any of the Loan Documents with respect to the Property. Any such actions
taken by Lender shall be cumulative and concurrent and may be pursued independently, singly,
successively, together or otherwise, at such time and in such order as Lender may determine in its
sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting
the other rights and remedies of Lender permitted by law, equity or contract or as set forth herein
or in the other Loan Documents. Without limiting the generality of the foregoing, Borrower and
Maryland Loan Guarantor each agrees that if an Event of Default is continuing (i) Lender shall not
be subject to any one action or election of remedies law or rule and (ii) all liens and other
rights, remedies or privileges provided to Lender shall remain in full force and effect until
Lender has exhausted all of its remedies against the Property and the Security Instrument has been
foreclosed, sold and/or
otherwise realized upon in satisfaction of the Indebtedness or the Indebtedness has been paid
in full.


 


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(b) Upon the occurrence and during the continuance of an Event of Default, with respect to the
Account Collateral, the Lender may:



(i) without notice to Borrower, except as required by law, and at any time or from time to
time, charge, set-off and otherwise apply all or any part of the Account Collateral against the
Obligations, operating expenses and/or Capital Expenditures for the Property or any part thereof;



(ii) in Lender’s sole discretion, at any time and from time to time, exercise any and all
rights and remedies available to it under this Agreement, and/or as a secured party under the UCC;



(iii) demand, collect, take possession of or receipt for, settle, compromise, adjust, sue for,
foreclose or realize upon the Account Collateral (or any portion thereof) as Lender may determine
in its sole discretion; and




(iv) take all other actions provided in, or contemplated by, this Agreement.



(c) With respect to Borrower, Maryland Loan Guarantor, the Account Collateral and the
Property, nothing contained herein or in any other Loan Document shall be construed as requiring
Lender to resort to the Property for the satisfaction of any of the Indebtedness, and Lender may
seek satisfaction out of the Property or any part thereof, in its absolute discretion in respect of
the Indebtedness. In addition, Lender shall have the right from time to time to partially
foreclose this Agreement and the Security Instrument in any manner and for any amounts secured by
this Agreement or the Security Instrument then due and payable as determined by Lender in its sole
discretion including, without limitation, the following circumstances: (i) in the event Borrower
or Maryland Loan Guarantor defaults beyond any applicable grace period in the payment of one or
more scheduled payments of principal or interest, Lender may foreclose this Agreement and the
Security Instrument to recover such delinquent payments, or (ii) in the event Lender elects to
accelerate less than the entire outstanding principal balance of the Loan, Lender may foreclose
this Agreement and the Security Instrument to recover so much of the principal balance of the Loan
as Lender may accelerate and such other sums secured by this Agreement or the Security Instrument
as Lender may elect. Notwithstanding one or more partial foreclosures, the Property shall remain
subject to this Agreement and the Security Instrument to secure payment of sums secured by this
Agreement and the Security Instrument and not previously recovered.



17.3 Remedies Cumulative; Waivers. The rights, powers and remedies of Lender under this
Agreement and the Security Instrument shall be cumulative and not exclusive of any other right,
power or remedy which Lender may have against Borrower or Maryland Loan Guarantor pursuant to this
Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Lender’s
rights, powers and remedies may be pursued singly, concurrently or otherwise, at such time and in
such order as Lender may determine in Lender’s sole discretion. No delay or omission to exercise
any remedy, right or power accruing upon an Event of Default
shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any
such remedy, right or power may be exercised from time to time and as often as may be deemed
expedient. A waiver of one Default or Event of Default with respect to Borrower, Maryland Loan
Guarantor or Guarantor shall not be construed to be a waiver of any subsequent Default or Event of
Default by Borrower, Maryland Loan Guarantor or Guarantor or to impair any remedy, right or power
consequent thereon.


 


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17.4 Costs of Collection. In the event that after an Event of Default: (i) the Notes or
any of the Loan Documents is placed in the hands of an attorney for collection or enforcement or is
collected or enforced through any legal proceeding; (ii) an attorney is retained to represent
Lender in any bankruptcy, reorganization, receivership, or other proceedings affecting creditors’
rights and involving a claim under the Notes or any of the Loan Documents; or (iii) an attorney is
retained to protect or enforce the lien or any of the terms of this Agreement, the Security
Instrument or any of the Loan Documents; then Borrower shall pay to Lender all reasonable
attorney’s fees, costs and expenses actually incurred in connection therewith, including costs of
appeal, together with interest on any judgment obtained by Lender at the Default Rate.




XVIII. SPECIAL PROVISIONS



18.1 Exculpation.



18.1.1 Exculpated Parties. Except as set forth in this Section 18.1, the Recourse
Guaranty and the Environmental Indemnity, no personal liability shall be asserted, sought or
obtained by Lender or enforceable against (i) Borrower, (ii) any Affiliate of Borrower, (iii) any
Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any
Affiliate of Borrower or (iv) any direct or indirect partner, member, principal, officer,
Controlling Person, beneficiary, trustee, advisor, shareholder, employee, agent, Affiliate or
director of any Persons described in clauses (i) through (iii) above (collectively, the
“Exculpated Parties”) and none of the Exculpated Parties shall have any personal liability
(whether by suit deficiency judgment or otherwise) in respect of the Obligations, this Agreement,
the Security Instrument, the Notes, the Property or any other Loan Document, or the making,
issuance or transfer thereof, all such liability, if any, being expressly waived by Lender. The
foregoing limitation shall not in any way limit or affect Lender’s right to any of the following
and Lender shall not be deemed to have waived any of the following:



(a) Foreclosure of the lien of this Agreement and the Security Instrument in accordance with
the terms and provisions set forth herein and in the Security Instrument;



(b) Action against any other security at any time given to secure the payment of the Notes and
the other Obligations;



(c) Exercise of any other remedy set forth in this Agreement or in any other Loan Document
which is not inconsistent with the terms of this Section 18.1;



(d) Any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other
provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness secured
by this Agreement and the Security Instrument or to require that all collateral shall
continue to secure all of the Indebtedness owing to Lender in accordance with the Loan
Documents; or



(e) The liability of any given Exculpated Party with respect to any separate written guaranty
or agreement given by any such Exculpated Party in connection with the Loan (including, without
limitation, the Recourse Guaranty and the Environmental Indemnity).


 


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18.1.2 Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything
in this Agreement or any of the other Loan Documents to the contrary, there shall at no time be any
limitation on Borrower’s, Maryland Loan Guarantor’s or, except as set forth in the Recourse
Guaranty, Guarantor’s liability for the payment, in accordance with the terms of this Agreement,
the Notes, the Security Instrument and the other Loan Documents, to Lender of and for:



(a) any actual out-of-pocket loss, damage, cost, expense, liability, claim and any other
obligation incurred by or on behalf of Lender arising out of or in connection with fraud or
intentional material misrepresentation by Borrower, Maryland Loan Guarantor, Master Lessee,
Guarantor or any of their principals, officers, agents or employees in connection with the Loan;



(b) damage to the Property arising from intentional misconduct of Borrower, Maryland Loan
Guarantor, Master Lessee, Guarantor or any of their principals, officers, agents or employees, and
any removal of assets forming part of any Individual Property by Borrower, Maryland Loan Guarantor
or Master Lessee in violation of the Loan Documents;



(c) any actual out-of-pocket loss, damage, cost, expense, liability, claim and any other
obligation incurred by or on behalf of Lender arising out of or in connection with the breach of
any representation, warranty, covenant or indemnification provision in the Environmental Indemnity
or herein concerning environmental laws, hazardous substances and asbestos and any indemnification
of Lender with respect thereto in the Environmental Indemnity or herein, but only to the extent
that the same are not insured against by an Environmental Insurance Policy;



(d) the amount of any misappropriation or conversion by Borrower, Maryland Loan Guarantor or
Master Lessee of (A) any Proceeds paid by reason of any casualty, damage or destruction of the
Property, (B) any Proceeds received in connection with a Taking, (C) any Rents following and during
the continuance of an Event of Default, or (D) any Rents paid more than one (1) month in advance
(it being agreed that no use of funds for the repair, maintenance or operations of the Property
shall be treated as a “misappropriation” hereunder);



(e) any actual out-of-pocket loss, damage, cost, expense, liability, claim and any other
obligation incurred by or on behalf of Lender arising out of or in connection with a breach of any
representation set forth in Section 4.1.29;



(f) any actual out-of-pocket loss, damage, cost, expense, liability, claim and any other
obligation incurred by or on behalf of Lender arising out of or in connection with Borrower’s or
Maryland Loan Guarantor’s failure to obtain Lender’s prior consent to any Debt or voluntary Lien
encumbering the Property as required by this Agreement or by the Security Instruments;


 


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(g) any actual out-of-pocket loss, damage, cost, expense, liability, claim and any other
obligation incurred by or on behalf of Lender (including, without limitation, reasonable attorneys’
fees, causes of action, suits, claims, demands and adjustments of any nature or description
whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the
event (and arising out of such circumstances) that Borrower or Maryland Loan Guarantor should raise
any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to any
Individual Property or the Account Collateral or any part thereof which is found by a court of
competent jurisdiction in a final, unappealable decision to have been raised by Borrower or
Maryland Loan Guarantor in bad faith or to be without basis in fact or law;



(h) any actual out-of-pocket loss, damage, cost, expense, liability, claim and any other
obligation incurred by or on behalf of Lender arising out of or in connection with (A) any Borrower
or Maryland Loan Guarantor filing a voluntary petition under the Bankruptcy Code or any other
Federal or state bankruptcy or insolvency law; (B) any Borrower or Maryland Loan Guarantor
soliciting or causing to be solicited petitioning creditors for an involuntary petition against any
Borrower or Maryland Loan Guarantor under the Bankruptcy Code or any other Federal or state
bankruptcy or insolvency law, or an involuntary case being commenced against any Borrower or
Maryland Loan Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or
insolvency law with the collusion of any Individual Borrower or Maryland Loan Guarantor or any of
its Affiliates, (C) any Borrower or Maryland Loan Guarantor filing 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 Federal or state bankruptcy or insolvency law; (D)
any Borrower or Maryland Loan Guarantor consenting to or acquiescing in or joining in an
application for the appointment of a custodian, receiver, trustee, or examiner for any such
Borrower or Maryland Loan Guarantor or any portion of the Property; (E) any Borrower or Maryland
Loan Guarantor making an assignment for the benefit of creditors, or admitting, in writing or in
any legal proceeding, its insolvency or inability to pay its debts as they become due;



(i) any actual out-of-pocket loss, damage, cost, expense, liability, claim and any other
obligation incurred by or on behalf of Lender arising out of or in connection with any Borrower’s
or Maryland Loan Guarantor’s failure to obtain Lender’s prior written consent to any Transfer as
required by the Loan Agreement or the Security Instruments; or



(j) reasonable attorney’s fees and expenses incurred by Lender in connection with any
successful suit filed on account of any of the foregoing clauses (a) through (i).



Notwithstanding the foregoing provisions of this Section 18.1.2, Borrower and Maryland
Loan Guarantor shall not be liable for the payment of any such costs and expenses to the extent
that a court of competent jurisdiction determines in a final decision that the same arose by reason
of the gross negligence, criminal acts, fraud or willful misconduct of Lender.



 


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XIX. MISCELLANEOUS



19.1 Survival. This Agreement and all covenants, indemnifications, agreements,
representations and warranties made herein and in the certificates delivered pursuant hereto shall
survive the making by Lender of the Loan and the execution and delivery to Lender of the Notes,
and shall continue in full force and effect so long as all or any of the Indebtedness is
outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan
Documents. Whenever in this Agreement any of the parties hereto is referred to, such reference
shall be deemed to include the successors and assigns of such party. All covenants, promises and
agreements in this Agreement, by or on behalf of Borrower or Maryland Loan Guarantor, shall inure
to the benefit of the successors and assigns of Lender. If Borrower consists of more than one
person, the obligations and liabilities of each such person hereunder and under the other Loan
Documents shall be joint and several. The obligations and liabilities of Borrower and Maryland
Loan Guarantor hereunder and under the other Loan Documents shall be joint and several.



19.2 Lender’s Discretion. Whenever pursuant to this Agreement, Lender exercises any right
given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender,
the decision of Lender to approve or disapprove or to decide whether arrangements or terms are
satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in
the sole discretion of Lender and shall be final and conclusive.



19.3 Governing Law.



(A) THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, THE LOAN WAS MADE BY LENDER AND
ACCEPTED BY BORROWER IN THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL
RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS,
INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW
OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER AND MARYLAND
LOAN GUARANTOR EACH HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW
OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT AND THE NOTES, AND THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.


 


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(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER OR MARYLAND LOAN GUARANTOR
ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY AT LENDER’S OPTION BE INSTITUTED IN ANY FEDERAL OR
STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW AND BORROWER AND MARYLAND LOAN GUARANTOR EACH WAIVES ANY OBJECTIONS WHICH
IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE
AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER AND MARYLAND
LOAN GUARANTOR EACH HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT,
ACTION OR PROCEEDING. BORROWER AND MARYLAND LOAN GUARANTOR EACH DOES HEREBY DESIGNATE AND APPOINT:




CORPORATION SERVICE COMPANY

80 STATE STREET

ALBANY, NEW YORK 12207-2543




AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS
WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW
YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN
NOTICE OF SAID SERVICE MAILED OR DELIVERED TO BORROWER AND MARYLAND LOAN GUARANTOR IN THE MANNER
PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER AND
MARYLAND LOAN GUARANTOR IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER
AND MARYLAND LOAN GUARANTOR (I) SHALL GIVE PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS
AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE
AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE
SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS
DISSOLVED WITHOUT LEAVING A SUCCESSOR.



19.4 Modification, Waiver in Writing. No modification, amendment, extension, discharge,
termination or waiver of any provision of this Agreement, or of the Notes, or of any other Loan
Document, or consent to any departure therefrom, shall in any event be effective unless the same
shall be in a writing signed by the party against whom enforcement is sought (and, if a
Securitization shall have occurred, a Rating Agency Confirmation is obtained), and then such waiver
or consent shall be effective only in the specific instance, and for the purpose, for which given.
Except as otherwise expressly provided herein, no notice to or demand on Borrower shall entitle
Borrower to any other or future notice or demand in the same, similar or other circumstances.



19.5 Delay Not a Waiver. Neither any failure nor any delay on the part of Lender in
insisting upon strict performance of any term, condition, covenant or agreement, or exercising any
right, power, remedy or privilege hereunder, or under the Notes or under any other Loan Document,
or any other instrument given as security therefor, shall operate as or constitute a waiver
thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the
exercise of any other right, power, remedy or privilege. In particular, and not by way of
limitation, by accepting payment after the due date of any amount payable under this Agreement, the
Notes or any other Loan Document, Lender shall not be deemed to have waived any right either to
require prompt payment when due of all other amounts due under this Agreement, the
Notes or the other Loan Documents, or to declare a default for failure to effect prompt payment of
any such other amount.


 


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19.6 Notices. All notices, consents, approvals and requests required or permitted
hereunder or under any other Loan Document shall be given in writing and shall be effective for all
purposes if hand delivered or sent by (a) certified or registered United States mail, postage
prepaid, return receipt requested, or (b) expedited prepaid delivery service, either commercial or
United States Postal Service, with proof of attempted delivery, addressed as follows (or at such
other address and Person as shall be designated from time to time by any party hereto, as the case
may be, in a written notice to the other parties hereto in the manner provided for in this
Section):



	 	 	 
	If to Lender:

	 	German American Capital Corporation, on behalf of the holders of the Notes
	 

	 	60 Wall Street, 10th floor
	 

	 	New York, NY 10005
	 

	 	Attention: Todd Sammann and General Counsel
	 
	 	 
	With a copy to:

	 	Wachovia Bank, National Assocation, as Servicer, at such notice address as shall be
designated by notice delivered in accordance with this Section.
	 
	 	 
	With a copy to:

	 	Skadden, Arps, Slate, Meagher & Flom LLP
	 

	 	Four Times Square
	 

	 	New York, New York 10036
	 

	 	Attention: Harvey R. Uris, Esq.
	 
	 	 
	With a copy to:

	 	Wachovia Bank, National Association
	 

	 	375 Park Avenue, 5th Floor
	 

	 	New York, New York 10022
	 

	 	Attention: Mr. Peter Scola
	 
	 	 
	If to Borrower (which shall
be deemed notice to
	 	 
	Maryland Loan Guarantor):

	 	c/o BlueLinx Holdings Inc.
	 

	 	4300 Wildwood Parkway
	 

	 	Atlanta, Georgia 30339
	 

	 	Attention: Mr. David Morris, CFO & Treasurer
	 
	 	 
	With a copy to:

	 	Schulte Roth & Zabel LLP
	 

	 	919 Third Avenue
	 

	 	New York, New York 10022
	 

	 	Attention: Jeffrey A. Lenobel, Esq.






All notices, elections, requests and demands under this Agreement shall be effective and deemed
received upon the earliest of (i) the actual receipt of the same by personal delivery or otherwise,
(ii) one (1) Business Day after being deposited with a nationally recognized overnight courier
service as required above, or (iii) three (3) Business Days after being deposited in the United
States mail as required above. Rejection or other refusal to accept or the inability to deliver
because of changed address of which no notice was given as herein required shall be deemed to be
receipt of the notice, election, request, or demand sent.


 


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19.7 TRIAL BY JURY. EACH OF BORROWER, MARYLAND LOAN GUARANTOR AND LENDER AND ALL PERSONS
CLAIMING BY, THROUGH OR UNDER IT, HEREBY EXPRESSLY, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING UNDER THIS
AGREEMENT, THE SECURITY INSTRUMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT, INCLUDING, WITHOUT
LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (II) IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT,
THE SECURITY INSTRUMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT (AS NOW OR HEREAFTER MODIFIED) OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE;
AND BORROWER AND MARYLAND LOAN GUARANTOR EACH HEREBY AGREES AND CONSENTS THAT AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION MAY BE FILED WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT HERETO TO THE WAIVER OF ANY RIGHT TO TRIAL BY JURY. BORROWER AND MARYLAND LOAN GUARANTOR
EACH ACKNOWLEDGES THAT IT HAS CONSULTED WITH LEGAL COUNSEL REGARDING THE MEANING OF THIS WAIVER AND
ACKNOWLEDGES THAT THIS WAIVER IS AN ESSENTIAL INDUCEMENT FOR THE MAKING OF THE LOAN. THIS WAIVER
SHALL SURVIVE THE REPAYMENT OF THE LOAN.



19.8 Headings. The Article and/or Section headings and the Table of Contents in this
Agreement are included herein for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose.



19.9 Severability. Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.



19.10 Preferences. To the extent Borrower or Maryland Loan Guarantor makes a payment or
payments to Lender, which payment or proceeds or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, state or federal law, common law or equitable
cause, then, to the extent of such payment or proceeds received, the obligations hereunder or part
thereof intended to be satisfied shall be revived and continue in full force and effect, as if such
payment or proceeds had not been received by Lender.


 


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19.11 Waiver of Notice. Borrower and Maryland Loan Guarantor shall not be entitled to any
notices of any nature whatsoever from Lender except with respect to matters for which this
Agreement or the other Loan Documents specifically and expressly provide for the giving of notice
by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to
applicable Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly
waives the right to receive any notice from Lender with respect to any matter for which this
Agreement or the other Loan Documents do not specifically and expressly provide for the giving of
notice by Lender to Borrower.



19.12 Expenses; Indemnity.



(a) Borrower and Maryland Loan Guarantor each covenants and agrees to pay or, if Borrower or
Maryland Loan Guarantor fails to pay, to reimburse, Lender upon receipt of written notice from
Lender for all reasonable costs and expenses (including reasonable attorneys’ fees and
disbursements) actually incurred by Lender in connection with (i) the preparation, negotiation,
execution and delivery of this Agreement and the other Loan Documents and the consummation of the
transactions contemplated hereby and thereby and all the costs of furnishing all opinions by
counsel for Borrower (including without limitation any opinions requested by Lender pursuant to
this Agreement); (ii) the servicing of the Loan by the Servicer after the Closing Date in
accordance with Section 14.3.2(e); (iii) the negotiation, preparation, execution, delivery
and administration of any consents, amendments, waivers or other modifications to this Agreement
and the other Loan Documents and any other documents or matters as required herein or under the
other Loan Documents; (iv) securing Borrower’s compliance with any requests made pursuant to the
provisions of this Agreement; (v) the filing and recording fees and expenses, mortgage recording
taxes, title insurance and reasonable fees and expenses of counsel for providing to Lender all
required legal opinions, and other similar expenses incurred in creating and perfecting the Lien in
favor of Lender pursuant to this Agreement and the other Loan Documents; (vi) enforcing or
preserving any rights, in response to third party claims or the prosecuting or defending of any
action or proceeding or other litigation, in each case against, under or affecting Borrower,
Maryland Loan Guarantor, this Agreement, the other Loan Documents, the Property, or any other
security given for the Loan; (vii) enforcing any obligations of or collecting any payments due from
Borrower or Maryland Loan Guarantor under this Agreement, the other Loan Documents or with respect
to the Property or in connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement in the nature of a work-out or of any insolvency or bankruptcy
proceedings and (viii) procuring insurance policies pursuant to Section 6.1;
provided, however, that Borrower shall not be liable for the payment of any such
costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts,
fraud or willful misconduct of Lender. Any cost and expenses due and payable to Lender may be paid
from any amounts in the Holding Account.


 


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(b) Subject to the non-recourse provisions of Section 18.1, Borrower and Maryland Loan
Guarantor shall protect, indemnify and save harmless Lender, and all officers, directors,
stockholders, members, partners, employees, agents, successors and assigns thereof (collectively,
the Indemnified Parties) from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and expenses (including all reasonable attorneys’ fees and expenses
actually incurred) imposed upon or incurred by or asserted against the Indemnified Parties or the
Property or any part of its interest therein, by reason of the occurrence or existence of any of
the following (to the extent Proceeds payable on account of the following shall be inadequate; it
being understood that in no event will the Indemnified Parties be required to actually pay or incur
any costs or expenses as a condition to the effectiveness of the foregoing indemnity) prior to (i)
the acceptance by Lender or its designee of a deed-in-lieu of foreclosure with respect to the
Property, or (ii) an Indemnified Party or its designee taking possession or control of the Property
or (iii) the foreclosure of the Security Instrument, except to the extent caused by the actual
willful misconduct or gross negligence of any Indemnified Party (other than such willful
misconduct, criminal acts, fraud or gross negligence imputed to the Indemnified Parties because of
their interest in the Property): (1) ownership of Borrower’s (or in the case of the Maryland
Property, Maryland Loan Guarantor’s) interest in the Property, or any interest therein, or receipt
of any Rents or other sum therefrom, (2) any accident, injury to or death of any persons or loss of
or damage to property occurring on or about the Property or any Appurtenances thereto, (3) any
design, construction, operation, repair, maintenance, use, non-use or condition of the Property or
Appurtenances thereto, including claims or penalties arising from violation of any Legal
Requirement, Environmental Law or Insurance Requirement, as well as any claim based on any patent
or latent defect, whether or not discoverable by Lender, any claim the insurance as to which is
inadequate, and any Environmental Claim except to the extent such Environmental Claim is covered by
the Environmental Insurance Policy and the related insurer agrees to pay Lender’s claims
thereunder, (4) any Event of Default under this Agreement or any of the other Loan Documents, (5)
any performance of any labor or services or the furnishing of any materials or other property in
respect of the Property or any part thereof, (6) any negligence or tortious act or omission on the
part of Borrower, Maryland Loan Guarantor or any of its agents, contractors, servants, employees,
sublessees, licensees or invitees, (7) any contest referred to in Section 7.3 hereof, or
(8) any obligation or undertaking relating to the performance or discharge of any of the terms,
covenants and conditions of the landlord contained in the Leases. Any amounts the Indemnified
Parties are legally entitled to receive under this Section 19.12(b) which are not paid
within thirty (30) days after written demand therefor by the Indemnified Parties or Lender, setting
forth in reasonable detail the amount of such demand and the basis therefor, shall bear interest
from the date of demand at the Default Rate, and shall, together with such interest, be part of the
Indebtedness and secured by the Security Instrument. In case any action, suit or proceeding is
brought against the Indemnified Parties by reason of any such occurrence, Borrower shall at
Borrower’s expense resist and defend such action, suit or proceeding or will cause the same to be
resisted and defended by counsel at Borrower’s reasonable expense for the insurer of the liability
or by counsel designated by Borrower (unless reasonably disapproved by Lender promptly after Lender
has been notified of such counsel); provided, however, that nothing herein shall
compromise the right of Lender (or any Indemnified Party) to appoint its own counsel at Borrower’s
reasonable expense for its defense with respect to any action which in its reasonable opinion
presents a conflict or potential conflict between Lender and Borrower that would make such separate
representation advisable; provided, further, that if Lender shall have appointed
separate counsel pursuant to the foregoing, Borrower shall not be responsible for the expense of
additional separate counsel of any Indemnified Party unless in the reasonable opinion of Lender a
conflict or potential conflict exists between such Indemnified Party and Lender. So long as
Borrower is resisting and defending such action, suit or proceeding as provided above in a prudent
and commercially reasonable manner, Lender and the Indemnified Parties shall not be entitled to
settle such action, suit or proceeding without Borrower’s consent which shall not be unreasonably
withheld or delayed, and claim the benefit of this Section 19.12(b) with respect to
such action, suit or proceeding and Lender agrees that it will not settle any such action,
suit or proceeding without the consent of Borrower. Any Indemnified Party will give Borrower
prompt notice after such Indemnified Party obtains actual knowledge of any potential claim by such
Indemnified Party for indemnification hereunder.


 


121









 





19.13 Exhibits and Schedules Incorporated. The Exhibits and Schedules annexed hereto are
hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the
body hereof.



19.14 Offsets, Counterclaims and Defenses. Any assignee of Lender’s interest in and to
this Agreement, the Notes and the other Loan Documents shall take the same free and clear of all
offsets, counterclaims or defenses which are unrelated to such documents which Borrower or Maryland
Loan Guarantor may otherwise have against any assignor of such documents, and no such unrelated
counterclaim or defense shall be interposed or asserted by Borrower or Maryland Loan Guarantor in
any action or proceeding brought by any such assignee upon such documents and any such right to
interpose or assert any such unrelated offset, counterclaim or defense in any such action or
proceeding is hereby expressly waived by Borrower and Maryland Loan Guarantor.



19.15 Liability of Assignees of Lender. No assignee of Lender shall have any personal
liability, directly or indirectly, under or in connection with this Agreement or any other Loan
Document or any amendment or amendments hereto made at any time or times, heretofore or hereafter,
any different than the liability of Lender hereunder. In addition, no assignee shall have at any
time or times hereafter any personal liability, directly or indirectly, under or in connection with
or secured by any agreement, lease, instrument, encumbrance, claim or right affecting or relating
to the Property or to which the Property is now or hereafter subject any different than the
liability of Lender hereunder. The limitation of liability provided in this Section 19.15
is (i) in addition to, and not in limitation of, any limitation of liability applicable to the
assignee provided by law or by any other contract, agreement or instrument, and (ii) shall not
apply to any assignee’s gross negligence or willful misconduct.



19.16 No Joint Venture or Partnership; No Third Party Beneficiaries.



(a) Borrower and Lender intend that the relationships created hereunder and under the other
Loan Documents be solely that of borrower and lender. Nothing herein or therein is intended to
create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between
Borrower and Lender or to grant Lender any interest in the Property other than that of mortgagee,
beneficiary or lender.



(b) This Agreement and the other Loan Documents are solely for the benefit of Lender and
Borrower and Maryland Loan Guarantor and nothing contained in this Agreement or the other Loan
Documents shall be deemed to confer upon anyone other than Lender, Borrower and Maryland Loan
Guarantor any right to insist upon or to enforce the performance or observance of any of the
obligations contained herein or therein. All conditions to the obligations of Lender to make the
Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person
shall have standing to require satisfaction of such conditions in accordance with their terms or be
entitled to assume that Lender will refuse to
make the Loan in the absence of strict compliance with any or all thereof and no other Person
shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which
may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it
advisable or desirable to do so.


 


122









 





19.17 Publicity. Other than legally required disclosures, filings and reporting
requirements, all news releases, publicity or advertising by Borrower or Lender or their respective
Affiliates through any media intended to reach the general public which refers to the Loan
Documents or the financing evidenced by the Loan Documents, to Lender, or any of its Affiliates
shall be subject to the prior written approval of Lender and Borrower.



19.18 Waiver of Marshalling of Assets. To the fullest extent permitted by law, Borrower
and Maryland Loan Guarantor, for itself and its successors and assigns, waives all rights to a
marshalling of the assets of Borrower, Maryland Loan Guarantor, Borrower’s and Maryland Loan
Guarantor’s members and others with interests in Borrower, Maryland Loan Guarantor and of the
Property, and agrees not to assert any right under any laws pertaining to the marshalling of
assets, the sale in inverse order of alienation, homestead exemption, the administration of estates
of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under
the Loan Documents to a sale of the Property for the collection of the Indebtedness without any
prior or different resort for collection or of the right of Lender to the payment of the
Indebtedness out of the net proceeds of the Property in preference to every other claimant
whatsoever.



19.19 Waiver of Counterclaim and other Actions. Borrower and Maryland Loan Guarantor each
hereby expressly and unconditionally waives, in connection with any suit, action or proceeding
brought by Lender on this Agreement, the Notes, the Security Instrument or any Loan Document, any
and every right it may have to (i) interpose any counterclaim therein (other than a counterclaim
which can only be asserted in the suit, action or proceeding brought by Lender on this Agreement,
the Notes, the Security Instrument or any Loan Document and cannot be maintained in a separate
action) and (ii) have any such suit, action or proceeding consolidated with any other or separate
suit, action or proceeding.



19.20 Conflict; Construction of Documents; Reliance. In the event of any conflict between
the provisions of this Agreement and any of the other Loan Documents, the provisions of this
Agreement shall control. The parties hereto acknowledge that they were represented by competent
counsel in connection with the negotiation, drafting and execution of the Loan Documents and that
such Loan Documents shall not be subject to the principle of construing their meaning against the
party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall
rely solely on its own judgment and advisors in entering into the Loan without relying in any
manner on any statements, representations or recommendations of Lender or any parent, subsidiary or
Affiliate of Lender. Lender shall not be subject to any limitation whatsoever in the exercise of
any rights or remedies available to it under any of the Loan Documents or any other agreements or
instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or
Affiliate of Lender of any equity interest any of them may acquire in Borrower or Maryland Loan
Guarantor, and Borrower and Maryland Loan Guarantor each hereby irrevocably waives the right to
raise any defense or take any action on the basis of the foregoing with respect to Lender’s
exercise of any such rights or remedies. Borrower
acknowledges that Lender engages in the business of real estate financings and other real estate
transactions and investments which may be viewed as adverse to or competitive with the business of
Borrower or its Affiliates.


 


123









 





19.21 Prior Agreements. This Agreement and the other Loan Documents contain the entire
agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and
thereby, and all prior agreements among or between such parties, whether oral or written, are
superseded by the terms of this Agreement and the other Loan Documents and unless specifically set
forth in a writing contemporaneous herewith the terms, conditions and provisions of any and all
such prior agreements do not survive execution of this Agreement.



19.22 Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall constitute an original, but all of which shall constitute one document.



[NO FURTHER TEXT ON THIS PAGE]



 


124









 





IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
duly authorized representatives, all as of the day and year first above written.



	 	 	 
	BORROWER:






	 	 	 
	 
	 	 
	ABP AL (MIDFIELD) LLC

	 	ABP AR (LITTLE ROCK) LLC
	ABP CA (CITY OF INDUSTRY) LLC

	 	ABP CA (NATIONAL CITY) LLC
	ABP CA (NEWARK) LLC

	 	ABP CO I (DENVER) LLC
	ABP CA (RIVERSIDE) LLC

	 	ABP CT (NEWTON) LLC
	ABP CO II (DENVER) LLC

	 	ABP FL (MIAMI) LLC
	ABP FL (LAKE CITY) LLC

	 	ABP FL (TAMPA) LLC
	ABP FL (PENSACOLA) LLC

	 	ABP GA (LAWRENCEVILLE) LLC
	ABP FL (YULEE) LLC

	 	ABP IL (UNIVERSITY PARK) LLC
	ABP IA (DES MOINES) LLC

	 	ABP KY (INDEPENDENCE) LLC
	ABP IN (ELKHART) LLC

	 	ABP MA (BELLINGHAM) LLC
	ABP LA (SHREVEPORT) LLC

	 	ABP ME (PORTLAND) LLC
	ABP MD (BALTIMORE) SUBSIDIARY LLC

	 	ABP MI (GRAND RAPIDS) LLC
	ABP MI (DETROIT) LLC

	 	ABP MN (MAPLE GROVE) LLC
	ABP MN (EAGAN) LLC

	 	ABP MO (KANSAS CITY) LLC
	ABP MO (BRIDGETON) LLC

	 	ABP MS (PEARL) LLC
	ABP MO (SPRINGFIELD) LLC

	 	ABP NC (CHARLOTTE) LLC
	ABP NC (BUTNER) LLC

	 	ABP NJ (DENVILLE) LLC
	ABP ND (NORTH FARGO) LLC

	 	ABP NY (YAPHANK) LLC
	ABP NM (ALBUQUERQUE) LLC

	 	ABP OK (TULSA) LLC
	ABP OH (TALMADGE) LLC

	 	ABP PA (ALLENTOWN) LLC
	ABP OR (BEAVERTON) LLC

	 	ABP SC (CHARLESTON) LLC
	ABP PA (STANTON) LLC

	 	ABP TN (ERWIN) LLC
	ABP SD (SIOUX FALLS) LLC

	 	ABP TN (NASHVILLE) LLC
	ABP TN (MEMPHIS) LLC

	 	ABP TX (FORT WORTH) LLC
	ABP TX (EL PASO) LLC

	 	ABP TX (HOUSTON) LLC
	ABP TX (HARLINGEN) LLC

	 	ABP TX (SAN ANTONIO) LLC
	ABP TX (LUBBOCK) LLC

	 	ABP VA (VIRGINIA BEACH) LLC
	ABP VA (RICHMOND) LLC

	 	ABP WA (WOODINVILLE) LLC
	ABP VT (SHELBURNE) LLC

	 	ABP WI (WAUSAU) LLC






	 	 	 	 	 
	 	By:  	                     /s/ David Morris
 	 
	 	 	Name:  	David Morris 	 
	 	 	Title:  	Vice President 	 



 


S-1 (Borrower)









 





	 	 	 	 	 
	 	MARYLAND LOAN GUARANTOR:



ABP MD (BALTIMORE) LLC

 	 
	 	By:  	/s/ David Morris
 	 
	 	 	Name:  	David Morris 	 
	 	 	Title:  	Vice President 	 



[Lender’s signature appears on following page]




 


S-2 (Borrower)









 





	 	 	 	 	 
	 	LENDER:



GERMAN AMERICAN CAPITAL

CORPORATION, a Maryland corporation, on

behalf of the holders of the Notes

 	 
	 	By:  	/s/ Todd O. Sammann
 	 
	 	 	Name:  	Todd O. Sammann 	 
	 	 	Title:  	Vice President 	 
	 	 	 
	 	By:  	                  /s/ Thomas R. Traynor
 	 
	 	 	Name:  	Thomas R. Traynor 	 
	 	 	Title:  	Vice President 	 




 


S-1 (Lender)











 




EXHIBIT A


TITLE INSURANCE REQUIREMENTS, ENDORSEMENTS

AND AFFIRMATIVE COVERAGES




1. General. Borrower and/or its counsel is responsible for ordering or updating any
title insurance work. Lender requires a lender’s title insurance policy insuring “German American
Capital Corporation, a Maryland corporation, for the benefit of the holders of the Notes, and its
successors and assigns”. The approved title underwriters, type and amount of insurance and
required endorsements are described below. The list of endorsements is subject to review by
Lender’s counsel, local counsel and additional specific coverages may be required after review of
the related title commitment. The requirements of this Exhibit A shall not limit any requirements
set forth in the Loan Agreement with respect to the matters set forth herein.



2. Title Insurer. The title company or title companies must be approved by Lender and
licensed to do business in the jurisdiction in which the Property is located. The Title Company (as
defined in the Loan Agreement) has been pre-approved by Lender.



3. Title Agent. Unless Lender otherwise agrees, all title work shall be ordered and
coordinated, and the closing of the Loan shall be conducted through the Title Company.




4. Primary Title Insurance Requirements.




(a) Amount of Coverage. As required pursuant to the Loan Agreement.



(b) Effective Date. The later of the date of recording of the Security Instrument or
the date of funding of the Loan. Borrower shall be required to provide a customary “gap” indemnity
in order to enable the Title Company to provide “gap” coverage.



(c) Insured. “German American Capital Corporation, a Maryland corporation, for the
benefit of the holders of the Notes, and its successors and assigns”.



(d) Legal Description. Metes and bounds description to be provided which must conform
to that shown on the Survey, the Security Instrument and any other Loan Documents that require a
legal description of the Property. A lot and block description shall be acceptable in place of a
metes and bounds description if accepted by the Title Company for issuance of a Title Policy for an
Individual Property.



(e) Policy Form. An ALTA (or equivalent) lender’s policy of title insurance in form
and substance acceptable to Lender. Without limiting Lender’s right to require specific coverages,
endorsements or other title work, the Title Policy shall (i) be in the 1970 ALTA (as amended 84)
form or, if not available, ALTA 1992 form (deleting arbitration and creditor rights exclusions) or,
if not available, the form commonly used in
the state where the Property is located, (ii) to the extent available, include the “extended
coverage” provisions described in paragraph 5 below, (iii) include all applicable endorsements
described in paragraph 6 below, and (iv) include Schedule B exceptions in a form and to the extent
acceptable to Lender’s counsel.


 


A-1









 






5. Extended Coverage Requirements. The Title Policy shall:




(a) not contain any exception for filed or unfiled mechanic, materialmen or similar liens;



(b) limit any general exception for real estate taxes and other charges to real estate or
other similar taxes or assessments that are not yet due and payable or delinquent and are not a
current lien on the Property;



(c) limit any general exception for the rights of persons in possession to the rights of
specified tenants, as tenants only with no right or option to purchase, set forth on the rent roll
for the Property and attached to the Title Policy; and



(d) not contain any general exception as to matters that an accurate Survey of the Property
would disclose, but may contain specific exceptions to matters disclosed on the Survey to be
delivered on the Closing Date, subject to review by Lender’s counsel.



6. Required Endorsements. In addition to any other endorsements required by Lender to
be obtained by Borrower pursuant to the terms of the Loan Agreement, the following
endorsements are required, to the extent applicable and otherwise available in the
jurisdiction in which the Property is located:




	 	•	 	Extended Coverage.







	 	•	 	Restrictions, Encroachments, Minerals Endorsement ALTA Form 9 or equivalent. (If
not available, the Title Policy must insure by way of affirmative coverage statements
that there are no encroachments by any of the improvements onto easements, rights of
way or other exceptions to streets or adjacent property, or insure against loss or
damage resulting therefrom.)







	 	•	 	Deletion of Creditors Rights Exclusion Endorsement.







	 	•	 	Environmental Protection Lien Endorsement. (The Title Policy may make an exception
only for specific state statutes that provide for potential subsequent liens that
could take priority over the lien securing the Loan.)







	 	•	 	Direct Access to Public Road Endorsement;







	 	•	 	Usury Endorsement.







	 	•	 	Land Same As Survey/Legal Description Endorsement.





 


A-2









 











	 	•	 	Zoning 3.1 Endorsement (including parking).







	 	•	 	Subdivision Endorsement.







	 	•	 	Doing Business Endorsement.







	 	•	 	Deletion of Arbitration Endorsement.







	 	•	 	Separate Tax Lot Endorsement.







	 	•	 	Street Address Endorsement







	 	•	 	Contiguity Endorsement.







	 	•	 	Variable Rate Endorsement.







	 	•	 	Mortgage Recording Tax Endorsement.







	 	•	 	REA Endorsement.







	 	•	 	Any of the following endorsements customary in the state in which the Property is
located or as required by the nature of the transaction:







Tie-In Endorsement for Multiple Policies

Mortgage Assignment Endorsement

First Loss / Last Dollar Endorsement

Blanket Un-located Easements Endorsement

Closure Endorsement




 


A-3









 







EXHIBIT B


GERMAN AMERICAN CAPITAL CORPORATION

SURVEY REQUIREMENTS




The requirements of this Exhibit A shall not limit any requirements set forth in the Loan
Agreement with respect to the matters set forth herein. The Surveys shall contain the following:



• The legal description of the Property;



• The courses and measured distances of the exterior boundary lines of the Property and
the identification of owners of abutting parcels;



• The total acreage of the Property to the nearest tenth of an acre;



• The location of any existing improvements, the dimensions thereof at the ground
surface level and their relationship to the facing exterior property lines, streets and set-back
lines of the Property;



• The location, lines and widths of adjoining publicly dedicated and accepted streets
showing the number and location of existing curb cuts, driveways, and fences;



• The location and dimensions of encroachments, if any, upon the Property;



• The location of all set-back lines, restrictions of record, other restrictions
established by zoning or building code ordinance, utilities, easements, rights-of-way and other
matters affecting title to the Property which are to be shown in Schedule B-2 of the Title Policy
identifying each by reference to its recording data, where applicable;



• Evidence that adequate means of ingress and egress to and from the Property exist and
that the Property does not serve any adjoining property for ingress, egress or any other purpose;



• If the Property is described as being on a recorded map or plat, a legend relating the
survey to such map or plat;



• The street address of the Property;



• Parking areas at the Property and, if striped, the striping and type (e.g.,
handicapped, motorcycle, regular, etc.) and number of parking spaces at the Property;



• A statement as to whether the Property is located in a special flood or mudslide
hazard area as determined by a review of a stated and identified Flood Hazard Boundary Map
published by the Federal Insurance Administration of the U.S. Department of Housing and Urban
Development;


 


B-1









 





• A vicinity map showing the property in reference to nearby highways or major street
intersections.



• The exterior dimensions of all buildings at ground level and the square footage of the
exterior footprint of all buildings, or gross floor area of all buildings, at ground level.



• The location of utilities serving or existing on the property as evidenced by on-site
observation or as determined by records provided by client, utility companies and other appropriate
sources (with reference as to the source of information) (for example)




	 	•	 	railroad tracks and sidings;







	 	•	 	manholes, catch basins, valve vaults or other surface indications
of subterranean uses;







	 	•	 	wire and cables (including their function) crossing the surveyed
premises, all poles on or within ten feet of the surveyed premises,
and the dimensions of all crosswires or overhangs affecting the
surveyed premises; and







	 	•	 	utility company installations on the surveyed premises.






• A certificate in substantially the following form:



The undersigned being a registered surveyor of the State of [State] hereby certifies to GERMAN
AMERICAN CAPITAL CORPORATION, A MARYLAND CORPORATION, ON BEHALF OF THE HOLDERS OF THE NOTES [NAME
OF BORROWING ENTITY] and [INSERT NAME OF TITLE COMPANY], and each of their respective successors
and assigns, as of the date below, as follows:



I,                                         , a Registered Land Surveyor in the [State/Commonwealth] of
                                        , do hereby certify to the aforesaid parties, their successors and assigns,
as of the date set forth above that I have made a careful survey of a tract of land described as
follows:



See Surveyor’s Legal Description.




I further certify that:




i. The survey map and the survey on which it is based were made (a) in accordance
with: “Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys” jointly
established and adopted by ALTA and ACSM in 1999, including items 1 (except for states that
require record monument platting), 2, 3, 4, 6, 7(a), 7(b)(1), 7(c), 8, 9, 10, 11(a), 13,
14, 15 and 16 of Table A thereof, (b) pursuant to Accuracy Standards (as adopted by ALTA
and ACSM and in effect on the date of this certification), with Positional Uncertainties
resulting from the survey measurements made on the survey not exceeding the
allowable Positional Tolerance, and (c) in compliance with all applicable laws of the
jurisdiction in which the subject property lies.


 


B-2









 






ii. The survey is an accurate survey of all of the real property legally described
therein (the “Property”).




iii. The survey map properly and accurately indicates and locates: (a) all visible
improvements on the Property as of the date of the survey; (b) visible utility structures
for power, telephone, storm drainage, sanitary waste disposal and drinking water; (c)
visible footprint foundations, parking spaces, loading docks and other visible structures
and improvements on the Property; and (d) any changes in street right of way lines
completed and available from the controlling jurisdiction, as well as observable evidence
of recent street or sidewalk construction repairs.




iv. The survey map was prepared under the direct supervision and control of the
undersigned from an actual instrument survey made of the Property.




v. There are no encroachments either across property lines or zoning district lines or
restriction lines in effect as of the date of the survey except as follows [if no
encroachments are specified, there are NONE]:
                                                            
                                                                                ;




vi. The Property described hereon is the same as the property described in title
insurance commitment #                     issued by the                                          Title
Insurance Company dated                     , 2005 (the “Title Commitment”), and the survey map
properly designates and locates all visible or recorded easements, rights-of-way, party
walls and restricted areas as of the date of the survey and areas affected by other
survey-related matters, if any, listed on the Title Commitment;




vii. The Property has direct physical ingress and egress to [names of streets or roads
                                        ] upon which the Property abuts, the same being paved and public
streets, or paved and private ways leading to public streets.




viii. The Property is [or in not] located in an area designated as a special flood
hazard area by the United States Department of Housing and Urban Development and lies in an
area having a Zone Designation                      by the Secretary of Housing and Urban
Development, on Flood Insurance Rate Map No.                     , with a date of identification of
                    ,
 _____, which is the current Flood Insurance Rate Map for the community in
which the Property is situated.




ix. The Property does not service any adjoining property for drainage, ingress or
egress.


 


B-3









 






x. The Property [is/is not] an acceptable subdivision of land under state law or
local, county or city ordinances.




If the Property constitutes more than one parcel or lot, there are no gaps, gores or strips
between them.



	 	 	 	 	 
	 

	 	 

	 	 
	 

	 	, Licensed Surveyor	 	 







Date:                                                             

[seal]




 


B-4









 







EXHIBIT C


SINGLE PURPOSE ENTITY PROVISIONS




It is a requirement that the borrower be a bankruptcy remote, special purpose entity. A
bankruptcy remote, special purpose entity is an entity which is unlikely to become insolvent as a
result of its own activities and which is adequately insulated from the consequences of any other
party’s insolvency. Set forth below is language to be included in the organizational documents of
corporations, limited partnerships and limited liability companies to evidence such entities’
existence as bankruptcy remote, special purpose entities.




I. CORPORATION.



If the Single Purpose Entity is a corporation, its certificate of incorporation will have to
have the following provisions to be considered a special purpose entity:




A. Purpose.




The corporation’s purpose should be limited to owning and operating the mortgaged
property (or interests in the Borrower).




“Notwithstanding any provision hereof or of any other document governing the
formation, management or operation of the Corporation to the contrary, the following shall
govern: The nature of the business and of the purposes to be conducted and promoted by the
Corporation, is to engage solely in the following activities:



1. To acquire that certain parcel of real property, together with all improvements located
thereon, in the City of                     , State of                      [                     interests in [insert Borrower
or other applicable entity’s name]] (the “Property”).



2. To own, hold, sell, assign, transfer, operate, lease, mortgage, pledge and otherwise deal
with the Property.



3. To exercise all powers enumerated in the [General Corporation Law] of                     
necessary or convenient to the conduct, promotion or attainment of the business or purposes
otherwise set forth herein.




B. Certain Prohibited Activities.




The corporation shall be prohibited, except in certain circumstances, from engaging in
certain activities, including various types of insolvency proceedings, dissolution,
liquidation, consolidation, merger, sale of all or substantially all of the corporation’s
assets, transfer of ownership assets, incurrence of additional debt and amendment of the
corporation’s articles of incorporation.


 


C-1









 






“Notwithstanding any provision hereof or of any other document governing the
formation, management or operation of the Corporation to the contrary, the following shall
govern: The Corporation shall only incur indebtedness in an amount necessary to acquire,
operate and maintain the [Property] [use other term for the real estate if necessary]. For
so long as any mortgage lien exists on the [Property] [use other term for the real estate
if necessary], the Corporation shall not incur, assume, or guaranty any other indebtedness.
The Corporation shall not consolidate or merge with or into any other entity or convey or
transfer its properties and assets substantially as an entirety to any entity unless (i)
the entity (if other than the Corporation) formed or surviving such consolidation or merger
or that acquired by conveyance or transfer the properties and assets of the Corporation
substantially as an entirety (a) shall be organized and existing under the laws of the
United States of America or any State or the District of Columbia, (b) shall include in its
organizational documents the same limitations set forth in this Article
 _____ 
and in
Article [insert section setting forth Separateness Covenants], and (c) shall expressly
assume the due and punctual performance of the Corporation’s obligations; and (ii)
immediately after giving effect to such transaction, no default or event of default under
any agreement to which it is a party shall have been committed by this corporation and be
continuing. For so long as a mortgage lien exists on the [Property] [use other term for
the real estate if necessary], the Corporation will not voluntarily commence a case with
respect to itself, as debtor, under the Federal Bankruptcy Code or any similar federal or
state statute without the unanimous consent of the Board of Directors. For so long as a
mortgage lien exists on the [Property] [use other term for the real estate if necessary],
(ii) no amendment to this certificate of incorporation or to the Corporation’s By-Laws may
be made without first obtaining approval of the mortgagee holding a first mortgage lien on
the [Property] [use other term for the real estate if necessary] and (ii) the Corporation
shall not dissolve, terminate or liquidate.”




“The Board of Directors may not take any action requiring the unanimous affirmative vote of
100% of the members of the Board of Directors unless all directors including the
Independent Directors shall have participated in such vote.”




C. Indemnification.




Indemnification of a corporation’s directors and officers should be fully subordinated
to obligations respecting the Property.




“Notwithstanding any provision hereof or of any other document governing the
formation, management or operation of the Corporation to the contrary, the following shall
govern: Any indemnification shall be fully subordinated to any obligations respecting the
[Property] [use other term for the real estate if necessary] and shall not constitute a
claim against the Corporation in the event that cash flow is insufficient to pay such
obligations.”


 


C-2









 






D. Separateness Covenants.




In order to demonstrate that it is a bankruptcy remote entity not at risk of having
its assets substantively consolidated with those of another entity, the corporation must
observe certain covenants designed to make evident the special purpose entity’s
separateness from its affiliates.




“Notwithstanding any provision hereof or of any other document governing the
formation, management or operation of the Corporation to the contrary, the following shall
govern: For so long as any mortgage lien exists on the [Property] [use other term for the
real estate if necessary], in order to preserve and ensure its separate and distinct
corporate identity, in addition to the other provisions set forth in this certificate of
incorporation, the Corporation shall conduct its affairs in accordance with the following
provisions:



1. It shall establish and maintain an office through which its business shall be conducted
separate and apart from those of its parent and any affiliate and shall allocate fairly and
reasonably any overhead for shared office space.



2. It shall maintain separate corporate records and books of account from those of its parent
and any affiliate.



3. Its Board of Directors shall hold appropriate meetings (or act by unanimous consent) to
authorize all appropriate corporate actions, and in authorizing such actions, shall observe all
corporate formalities. The Board of Directors shall include at least two (2) individuals who are
Independent Directors. As used herein, an “Independent Director” shall mean an individual
who shall not have been at the time of such individual’s appointment, and may not have been at any
time (i) a partner, member, shareholder of, or an officer or employee of, the Corporation or any of
its respective partners, members, shareholders, subsidiaries or affiliates, (ii) a customer of, or
supplier to, the Corporation or managing member of the Corporation or any of their respective
partners, members, shareholders, subsidiaries or affiliates, (iii) a person controlling any such
partner, member, shareholder, supplier or customer, or (iv) a member of the immediate family of any
such shareholder, officer, employee, supplier or customer of any other director of the Corporation
or of the managing member of the Corporation. As used herein, the term “control” means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a person or entity, whether through ownership of voting securities, by contract or
otherwise.




4. It shall not commingle assets with those of its parent and any affiliate.




5. It shall conduct its own business in its own name.




6. It shall maintain financial statements separate from its parent and any affiliate.



7. It shall pay any liabilities out of its own funds, including salaries of any employees, not
funds of its parent or any affiliate.


 


C-3









 






8. It shall maintain an arm’s length relationship with its parent and any affiliate.




9. It shall maintain adequate capital in light of its contemplated business operations.



10. It shall not guarantee or become obligated for the debts of any other entity, including
its parent or any affiliate or hold out its credit as being available to satisfy the obligations of
others.




11. It shall not acquire obligations or securities of its partners, members or shareholders.




12. It shall use stationery, invoices and checks separate from its parent and any affiliate.



13. It shall not pledge its assets for the benefit of any other entity, including its parent
and any affiliate or make any loans or advances to any other person.




14. It shall hold itself out as an entity separate from its parent and any affiliate.




15. It shall correct any known misunderstanding regarding its separate identity.”




For purpose of this Article
 _____, the following terms shall have the following
meanings:




“affiliate” means any person controlling or controlled by or under common
control with the parent, including, without limitation (i) any person who has a familial
relationship, by blood, marriage or otherwise with any director, officer or employee of the
Corporation, its parent, or any affiliate thereof and (ii) any person which receives
compensation for administrative, legal or accounting services from this corporation, its
parent or any affiliate. For purposes of this definition, “control” when used with respect
to any specified person, means the power to direct the management and policies of such
person, directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.




“parent” means, with respect to a corporation, any other corporation owning or
controlling, directly or indirectly, fifty percent (50%) or more of the voting stock of the
Corporation.




“person” means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization, or government or any agency or political subdivision
thereof.


 


C-4









 





II. LIMITED PARTNERSHIP.




If the Single Purpose Entity is a limited partnership, to be a special purpose entity, all
of its general partners shall be special purpose entities. If such limited partnership has
more than one general partner, then such limited partnership shall continue (and not
dissolve) for so long as a solvent general partner exists. Consequently, both the limited
partnership’s partnership agreement and the certificate of incorporation of its general
partner(s) will have to meet certain requirements to be considered special purpose
entities. Such requirements are as follows:




A. Limited Partnership Agreement.




a. Purpose.




The limited partnership’s purpose should be limited to owning and operating the
mortgaged property.




“Notwithstanding any provision hereof or of any other document governing the
formation, management or operation of the Partnership to the contrary, the following shall
govern: The nature of the business and of the purposes to be conducted and promoted by the
Partnership, is to engage solely in the following activities:



1. To acquire that certain parcel of real property, together with all improvements located
thereon, in the City of                     , State of                                          [          
           interests in [insert
Borrower or other applicable entity’s name]] (the “Property”).



2. To own, hold, sell, assign, transfer, operate, lease, mortgage, pledge and otherwise deal
with the Property.



3. To exercise all powers enumerated in the Uniform Limited Partnership Act of                     
necessary or convenient to the conduct, promotion or attainment of the business or purposes
otherwise set forth herein.”




b. Certain Prohibited Activities.




The partnership shall be prohibited, except in certain circumstances, from engaging in
certain activities, including various types of insolvency proceedings, dissolution,
liquidation, consolidation, merger, sale of all or substantially all of the partnership’s
assets, transfer of partnership interests, incurrence of additional debt and amendment of
the partnership agreement.


 


C-5









 






“Notwithstanding any provision hereof or of any other document governing the
formation, management or operation of the Partnership to the contrary, the following shall
govern: The Partnership shall only incur indebtedness in an amount necessary to acquire,
operate and maintain the [Property] [use other term for the real estate if necessary]. For
so long as any mortgage lien exists on the [Property] [use other term for the real estate
if necessary] , the Partnership shall not incur, assume, or guaranty any other
indebtedness. The Partnership shall not consolidate or merge with or into any other entity
or convey or transfer its properties and assets substantially as an entirety to any entity
unless (i) the entity (if other than the Partnership) formed or surviving such
consolidation or merger or that acquired by conveyance or transfer the properties and
assets of the Partnership substantially as an entirety (a) shall be organized and existing
under the laws of the United States of America or any State or the District of Columbia,
(b) shall include in its organizational documents the same limitations set forth in this
Article                      and in Article [insert section setting forth Separateness Covenants], and
(c) shall expressly assume the due and punctual performance of the Partnership’s
obligations; and (ii) immediately after giving effect to such transaction, no default or
event of default under any agreement to which it is a party shall have been committed by
this partnership and be continuing. For so long as a mortgage lien exists on the
[Property] [use other term for the real estate if necessary], the Partnership will not
voluntarily commence a case with respect to itself, as debtor, under the Federal Bankruptcy
Code or any similar federal or state statute without the unanimous consent of all of the
partners of the Partnership. For so long as a mortgage lien exists on the [Property] [use
other term for the real estate if necessary], (i) no amendment to this partnership
agreement may be made and (ii) the partnership shall not dissolve, liquidate or terminate
without first obtaining approval of the mortgagee holding a first mortgage lien on the
[Property] [use other term for the real estate if necessary] .”




c. Indemnification.




Indemnification of a partnership’s partners should be fully subordinated to obligations
respecting the Property.




“Notwithstanding any provision hereof or of any other document governing the formation,
management or operation of the Partnership to the contrary, the following shall govern: Any
indemnification shall be fully subordinated to any obligations respecting the [Property]
[use other term for the real estate if necessary] and shall not constitute a claim against
the Partnership in the event that cash flow is insufficient to pay such obligations.”




d. Separateness Covenants.




In order to demonstrate that it is a bankruptcy remote entity not at risk of having
its assets substantively consolidated with those of another entity, the partnership must
observe certain covenants designed to make evident the special purpose entity’s
separateness from its affiliates.



 


C-6









 





“Notwithstanding any provision hereof or of any other document governing the
formation, management or operation of the Partnership to the contrary, the following shall
govern: For so long as any mortgage lien exists on the [Property] [use other term for the
real estate if necessary] , in order to preserve and ensure its separate and distinct
identity, in addition to the other provisions set
forth in this partnership agreement, the Partnership shall conduct its affairs in
accordance with the following provisions:



1. It shall establish and maintain an office through which its business shall be conducted
separate and apart from that of any of its affiliate and shall allocate fairly and reasonably any
overhead for shared office space.



2. It shall maintain separate partnership records and books of account from those of any
affiliate.




3. It shall not commingle assets with those of any affiliate.




4. It shall conduct its own business in its own name.




5. It shall observe all partnership formalities.




6. It shall maintain financial statements separate from any affiliate.



7. It shall pay any liabilities out of its own funds, including salaries of any employees, not
funds of any affiliate.




8. It shall maintain an arm’s length relationship with any affiliate.




9. It shall maintain adequate capital in light of its contemplated business operations.



10. It shall not guarantee or become obligated for the debts of any other entity, including
any affiliate, or hold out its credit as being available to satisfy the obligations of others.




11. It shall not acquire obligations or securities of its partners, members or shareholders.




12. It shall use stationery, invoices and checks separate from any affiliate.



13. It shall not pledge its assets for the benefit of any other entity, including any
affiliate or make any loans or advances to any other person.




14. It shall hold itself out as an entity separate from any affiliate.




15. It shall correct any known misunderstanding regarding its separate identity.



16. At all times have all of its general partners shall be special purpose corporate entities
with at least two (2) Independent Directors.”


 


C-7









 






For purpose of this Article                     , the following terms shall have the following
meanings:




“affiliate” means any person controlling or controlled by or under common
control with the Partnership including, without limitation (i) any person who has a
familial relationship, by blood, marriage or otherwise with any partner or employee of the
Partnership, or any affiliate thereof and (ii) any person which receives compensation for
administrative, legal or accounting services from this partnership, or any affiliate. For
purposes of this definition, “control” when used with respect to any specified
person, means the power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to
the foregoing.




“Independent Director” shall mean an individual who shall not have been at the
time of such individual’s appointment, and may not have been at any time (i) a partner,
member, shareholder of, or an officer or employee of, the Partnership or any of its
respective partners, members, shareholders, subsidiaries or affiliates, (ii) a customer of,
or supplier to, the Partnership or managing member of the Partnership or any of their
respective partners, members, shareholders, subsidiaries or affiliates, (iii) a person
controlling any such partner, member, shareholder, supplier or customer, or (iv) a member
of the immediate family of any such shareholder, officer, employee, supplier or customer of
any other director of the Partnership or of the managing member of the Partnership. As
used herein, the term “control” means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a person or
entity, whether through ownership of voting securities, by contract or otherwise.




“person” means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization, or government or any agency or political subdivision
thereof.




e. Dissolution.




The limited partnership agreement should provide that the partnership will continue (and
not dissolve) so long as a solvent general partner exists.




“Notwithstanding any provision or of any other document governing the formation, management
or operation of the Partnership hereof to the contrary, the following shall govern: The
Partnership shall not terminate solely as a consequence of the [Bankruptcy] of one or more
of the general partners of the Partnership so long as there remains a solvent general
partner of the Partnership.”




In addition, dissolution of the partnership must not occur so long as the partnership
remains mortgagor of the mortgaged properly.




“Notwithstanding any provision hereof or of any other document governing the formation,
management or operation of the Partnership to the contrary, the
following shall govern: Subject to applicable law, dissolution of the Partnership shall not
occur so long as the Partnership remains mortgagor of the [Property] [use other term for
the real estate if necessary] .”


 


C-8









 






B. Corporate General Partner




a. Purpose.




The corporation’s purpose should be limited to acting as general partner of the
limited partnership whose purpose, as set forth above, generally should be limited to
owning and operating the mortgaged property.




“Notwithstanding any provision hereof or of any other document governing the
formation, management or operation of the Corporation to the contrary, the following shall
govern: The nature of the business and of the purposes to be conducted and promoted by the
Corporation is to engage solely in the activity of acting as a general partner of a limited
partnership (the “Partnership”) whose purpose is to acquire that certain parcel of
real property, together with all improvements located thereon, in the City of
                    , State of                      (the “Property”) and own, hold, sell,
assign, transfer, operate, lease, mortgage, pledge and otherwise deal with the Property.
The Corporation shall exercise all powers enumerated in the General Corporation Law of
                     necessary or convenient to the conduct, promotion or attainment of the business
or purposes otherwise set forth herein.”




b. Certain Prohibited Activities.




The corporation shall be prohibited, except in certain circumstances, from engaging in
or causing the partnership to engage in certain activities, including various types of
insolvency proceedings, dissolution, liquidation, consolidation, merger, sale of all or
substantially all of the corporation’s or partnership’s assets, transfer of ownership
assets, transfer of partnership interests, incurrence of additional debt, amendment of the
corporation’s articles of incorporation and amendment of the partnership agreement.




“Notwithstanding any provision hereof or of any other document governing the
formation, management or operation of the Corporation to the contrary, the following shall
govern: The Corporation shall only incur or cause the Partnership to incur indebtedness in
an amount necessary to acquire, operate and maintain the Property. For so long as any
mortgage lien exists on the Property, the Corporation shall not and shall not cause the
Partnership to incur, assume, or guaranty any other indebtedness. For so long as the
Partnership remains mortgagor of the Property, the Corporation shall not cause the
Partnership to dissolve. The Corporation shall not and shall not cause the Partnership to
consolidate or merge with or into any other entity or convey or transfer its properties and
assets substantially as an entirety to any entity unless (i) the entity


 


C-9









 






(if other than the
Corporation or Partnership) formed or surviving such consolidation or merger or that acquired by conveyance or transfer the properties and
assets of the Corporation or Partnership substantially as an entirety (a) shall be
organized and existing under the laws of the United States of America or any State or the
District of Columbia, (b) shall include in its organizational documents the same
limitations set forth in this Article                      and in Article [insert section setting forth
Separateness Covenants], and (c) shall expressly assume the due and punctual performance of
the Corporation’s obligations; and (ii) immediately after giving effect to such
transaction, no default or event of default under any agreement to which it is a party
shall have been committed by this corporation or the Partnership and be continuing. For so
long as a mortgage lien exists on the Property, the Corporation shall not voluntarily
commence a case with respect to itself or cause the Partnership to voluntarily commence a
case with respect to itself, as debtor, under the Federal Bankruptcy Code or any similar
federal or state statute without the unanimous consent of the Board of Directors. For so
long as a mortgage lien exists on the Property, (i) no amendment to this certificate of
incorporation or to the Corporation’s By-Laws nor to the Partnership agreement of the
Partnership may be made and (ii) neither the Corporation nor the Partnership shall be
dissolved, liquidated or terminated without first obtaining approval of the mortgagee
holding a first mortgage lien on the Property.”




“The Board of Directors may not take any action requiring the unanimous affirmative vote of
100% of the members of the Board of Directors unless all directors including the
Independent Directors shall have participated in such vote.”




c. Indemnification.




Indemnification of a corporation’s directors and officers should be fully subordinated to
obligations respecting the Property.




“Notwithstanding any provision hereof or of any other document governing the formation,
management or operation of the Corporation to the contrary, the following shall govern:
Any indemnification shall be fully subordinated to any obligations respecting the
Partnership or the Property and shall not constitute a claim against the Corporation in the
event that cash flow is insufficient to pay such obligations.”




d. Separateness Covenants.




In order to demonstrate that it is a bankruptcy remote entity not at risk of having its
assets substantively consolidated with those of another entity, the Corporation must
observe certain covenants designed to make evident the special purpose entity’s
separateness from its affiliates.




 


C-10









 




“Notwithstanding any provision hereof or of any other document governing the formation,
management or operation of the Corporation to the contrary, the following shall govern:
For so long as any mortgage lien exists on the Property,
in order to preserve and ensure its separate and distinct corporate identity, in addition
to the other provisions set forth in this certificate of incorporation, the Corporation
shall conduct its affairs in accordance with the following provisions:



1. It shall establish and maintain an office through which its business shall be conducted
separate and apart from those of its parent and any affiliate and shall allocate fairly and
reasonably any overhead for shared office space.



2. It shall maintain separate corporate records and books of account from those of its parent
and any affiliate.



3. Its Board of Directors shall hold appropriate meetings (or act by unanimous consent) to
authorize all appropriate corporate actions, and in authorizing such actions, shall observe all
corporate formalities. The Board of Directors shall include at least two (2) individuals who are
Independent Directors. As used herein, an “Independent Director” shall mean an individual
who shall not have been at the time of such individual’s appointment, and may not have been at any
time (i) a partner, member, shareholder of, or an officer or employee of, the Corporation or any of
its respective partners, members, shareholders, subsidiaries or affiliates, (ii) a customer of, or
supplier to, the Corporation or managing member of the Corporation or any of their respective
partners, members, shareholders, subsidiaries or affiliates, (iii) a person controlling any such
partner, member, shareholder, supplier or customer, or (iv) a member of the immediate family of any
such shareholder, officer, employee, supplier or customer of any other director of the Corporation
or of the managing member of the Corporation. As used herein, the term “control” means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a person or entity, whether through ownership of voting securities, by contract or
otherwise.




4. It shall not commingle assets with those of its parent and any affiliate.




5. It shall conduct its own business in its own name.




6. It shall maintain financial statements separate from its parent and any affiliate.



7. It shall pay any liabilities out of its own funds, including salaries of any employees, not
funds of its parent or any affiliate.




8. It shall maintain an arm’s length relationship with its parent and any affiliate.




9. It shall maintain adequate capital in light of its contemplated business operations.



10. It shall not guarantee or, except to the extent of its liability for the debt secured by
such mortgage lien, become obligated for the debts of any other entity, including its parent or any
affiliate or hold out its credit as being available to satisfy the obligations of others.


 


C-11









 






11. It shall not acquire obligations or securities of its partners, members or shareholders.




12. It shall use stationery, invoices and checks separate from its parent and any affiliate.



13. It shall not pledge its assets for the benefit of any other entity, including its parent
and any affiliate or make any loans or advances to any other person.




14. It shall hold itself out as an entity separate from its parent and any affiliate.




15. It shall correct any known misunderstanding regarding its separate identity.”




For purpose of this Article                                         , the following terms shall have the
following meanings:




“affiliate” means any person controlling or controlled by or under common
control with the parent, including, without limitation (i) any person who has a familial
relationship, by blood, marriage or otherwise with any director, officer or employee of the
Corporation, its parent, or any affiliate thereof and (ii) any person which receives
compensation for administrative, legal or accounting services from this corporation, its
parent or any affiliate. For purposes of this definition, “control” when used with
respect to any specified person, means the power to direct the management and policies of
such person, directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.




“parent” means, with respect to a corporation, any other corporation owning or
controlling, directly or indirectly, fifty percent (50%) or more of the voting stock of the
Corporation.




“person” means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization, or government or any agency or political subdivision
thereof.




III. LIMITED LIABILITY COMPANY




If the Single Purpose Entity is a limited liability company, to be a special purpose
entity, each managing member shall be a special purpose corporation. If such limited
liability company has more than one managing member then such limited liability company
shall continue (and not dissolve) for so long as a solvent managing member exists.
Consequently, both the Limited Liability Company’s articles of organization and the
certificate of incorporation of its outside member will have to meet certain requirements
to be considered special purpose entities. Such requirements are as follows:


A. Articles of Organization




a. Purpose.




The limited liability company’s purpose should be limited to owning and operating the
mortgaged property.




 


C-12









 






“Notwithstanding any provision hereof or of any other document governing the formation,
management or operation of the Limited Liability Company to the contrary, the following
shall govern: The nature of the business and of the purposes to be conducted and promoted
by the Limited Liability Company, is to engage solely in the following activities:



1. To acquire that certain parcel of real property, together with all improvements located
thereon, in the City of                     , State of                 
     [_____ 
interests in [insert Borrower
or other applicable entity’s name]] (the “Property”).



2. To own, hold, sell, assign, transfer, operate, lease, mortgage, pledge and otherwise deal
with the Property.



3. To exercise all powers enumerated in the Limited Liability Company Act of                     
necessary or convenient to the conduct, promotion or attainment of the business or purposes
otherwise set forth herein.”




b. Certain Prohibited Activities.




The limited liability company shall be prohibited, except in certain circumstances from
engaging in certain activities, including various types of insolvency proceedings,
dissolution, liquidation, consolidation, merger, sale of all or substantially all of the
limited liability company’s assets, transfer of limited liability company interests,
incurrence of additional debt and amendment of the articles of organization.




“Notwithstanding any provision hereof or of any other document governing the formation,
management or operation of the Limited Liability Company to the contrary, the following
shall govern: The Limited Liability Company shall only incur indebtedness in an amount
necessary to acquire, operate and maintain the [Property] [use other term for the real
estate if necessary]. For so long as any mortgage lien exists on the [Property] [use other
term for the real estate if necessary], the Limited Liability Company shall not incur,
assume, or guaranty any other indebtedness. The Limited Liability Company shall not
consolidate or merge with or into any other entity or convey or transfer its properties and
assets substantially as an entirety to any entity unless (i) the entity (if other than the
Limited Liability Company) formed or surviving such consolidation or merger or that
acquired by conveyance or transfer the properties and assets of the Limited Liability
Company substantially as an entirety (a) shall be organized and existing under the laws of
the United States of America or any State or the District of Columbia, (b) shall include in
its organizational documents the same limitations set forth in this Article
 _____ 
and in
Article [insert section setting forth Separateness Covenants], and (c) shall expressly
assume the due


 


C-13









 






and punctual performance of the Limited Liability Company’s obligations; and (ii) immediately after
giving effect to such transaction, no default or event of default under any agreement to
which it is a party shall have been committed by this limited liability company and be
continuing. For so long as a mortgage lien exists on the [Property] [use other term for
the real estate if necessary], the Limited Liability Company will not voluntarily commence
a case with respect to itself, as debtor, under the Federal Bankruptcy Code or any similar
federal or state statute without the unanimous consent of all of the members of the Limited
Liability Company. For so long as a mortgage lien exists on the [Property] [use other term
for the real estate if necessary], (i) no amendment to these articles of organization may
be made and (ii) the Limited Liability Company shall not be dissolved, liquidated or
terminated without first obtaining approval of the mortgagee holding a first mortgage lien
on the [Property] [use other term for the real estate if necessary].”




c. Indemnification.




Indemnification of a limited liability company’s partners should be fully subordinated to
obligations respecting the Property.




“Notwithstanding any provision hereof or of any other document governing the formation,
management or operation of the Limited Liability Company to the contrary, the following
shall govern: Any indemnification shall be fully subordinated to any obligations
respecting the [Property] [use other term for the real estate if necessary] and shall not
constitute a claim against the Limited Liability Company in the event that cash flow is
insufficient to pay such obligations.”




d. Separateness Covenants.




In order to demonstrate that it is a bankruptcy remote entity not at risk of having its
assets substantively consolidated with those of another entity, the limited liability
company must observe certain covenants designed to make evident the special purpose
entity’s separateness from its affiliates.




“Notwithstanding any provision hereof or of any other document governing the formation,
management or operation of the Limited Liability Company to the contrary, the following
shall govern: For so long as any mortgage lien exists on the [Property] [use other term
for the real estate if necessary], in order to preserve and ensure its separate and
distinct identity, in addition to the other provisions set forth in these articles of
organization, the Limited Liability Company shall conduct its affairs in accordance with
the following provisions:



1. It shall establish and maintain an office through which its business shall be conducted
separate and apart from that of any of its affiliates and shall allocate fairly and reasonably any
overhead for shared office space.



2. It shall maintain separate records and books of account from those of any affiliate.


 


C-14









 






3. It shall not commingle assets with those of any affiliate.




4. It shall conduct its own business in its own name.




5. It shall maintain financial statements separate from any affiliate.



6. It shall pay any liabilities out of its own funds, including salaries of any employees, not
funds of any affiliate.




7. It shall maintain an arm’s length relationship with any affiliate.




8. It shall maintain adequate capital in light of its contemplated business operations.



9. It shall not guarantee or become obligated for the debts of any other entity, including any
affiliate, or hold out its credit as being available to satisfy the obligations of others.




10. It shall not acquire obligations or securities of its partners, members or shareholders.




11. It shall use stationery, invoices and checks separate from any affiliate.



12. It shall not pledge its assets for the benefit of any other entity, including any
affiliate or make any loans or advances to any other person.




13. It shall hold itself out as an entity separate from any affiliate.




14. It shall correct any known misunderstanding regarding its separate identity.



15. At all times all managing members shall be a special purpose corporate member with at
least two (2) Independent Directors.”




For purpose of this Article
 _____, the following terms shall have the following meanings:




“affiliate” means any person controlling or controlled by or under common
control with the Limited Liability Company including, without limitation (i) any person who
has a familial relationship, by blood, marriage or otherwise with any partner or employee
of the Limited Liability Company, or any affiliate thereof and (ii) any person which
receives compensation for administrative, legal or accounting services from this limited
liability company, or any affiliate. For purposes of this definition, “control”
when used with respect to any specified person, means the power to direct the management
and policies of such person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.


 


C-15









 






“Independent Director” shall mean an individual who shall not have been at the
time of such individual’s appointment, and may not have been at any time (i) a partner,
member, shareholder of, or an officer or employee of, the Limited Liability Company or any
of its respective partners, members, shareholders, subsidiaries or affiliates, (ii) a
customer of, or supplier to, the Limited Liability Company or managing member of the
Limited Liability Company or any of their respective partners, members, shareholders,
subsidiaries or affiliates, (iii) a person controlling any such partner, member,
shareholder, supplier or customer, or (iv) a member of the immediate family of any such
shareholder, officer, employee, supplier or customer of any other director of the Limited
Liability Company or of the managing member of the Limited Liability Company. As used
herein, the term “control” means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a person or
entity, whether through ownership of voting securities, by contract or otherwise.




“person” means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization, or government or any agency or political subdivision
thereof.




e. Dissolution.




To the extent permitted by tax law the articles of organization should provide that the
vote of a majority-in-interest of the remaining members is sufficient to continue the life
of the limited liability company. If such vote is not obtained, for so long as a mortgage
lien exists on the [Property] [use other term for the real estate if necessary] the limited
liability company may not be permitted to liquidate the [Property] [use other term for the
real estate if necessary] without first obtaining approval of the mortgagee holding a first
mortgage lien on the [Property] [use other term for the real estate if necessary]. Such
holders may continue to exercise all of their rights under the existing security agreements
or mortgages until the debt underlying the mortgage lien has been paid in full or otherwise
completely discharged.”




“Notwithstanding any provision hereof or of any other document governing the formation,
management or operation of the Limited Liability Company to the contrary, the following
shall govern: To the extent permissible under applicable federal and state tax law, the
vote of a majority-in-interest of the remaining members is sufficient to continue the life
of the Limited Liability Company. If such vote is not obtained, for so long as a mortgage
lien exists on the [Property] [use other term for the real estate if necessary] the Limited
Liability Company shall not liquidate the [Property] [use other term for the real estate if
necessary] without first obtaining approval of the mortgagee holding a first mortgage lien
on the [Property] [use other term for the real estate if necessary]. Such holders may
continue to exercise all of their rights under the existing security agreements or
mortgages until the debt underlying the mortgage liens has been paid in full or otherwise
completely discharged.


 


C-16









 






f. Voting.




When acting on matters subject to the vote of the members, notwithstanding that the limited
liability company is not then insolvent, the members and the outside member must take into
account the interest of the Limited Liability Company’s creditors, as well as those of the
members.




“Notwithstanding any provision hereof or of any other document governing the formation,
management or operation of the Limited Liability Company to the contrary, the following
shall govern: When acting on matters subject to the vote of the members, notwithstanding
that the Limited Liability Company is not then insolvent, all of the members shall take
into account the interest of the Limited Liability Company’s creditors, as well as those of
the members.”




B. Outside Corporate Member




a. Purpose.




The outside corporate member’s purpose should be limited to acting as corporate member of
the limited liability company whose purpose, as set forth above, generally should be
limited to owning and operating the mortgaged property.




“Notwithstanding any provision hereof or of any other document governing the formation,
management or operation of the Corporation to the contrary, the following shall govern:
The nature of the business and of the purposes to be conducted and promoted by the
Corporation is to engage solely in the activity of acting as the outside member of a
limited liability company (the “Limited Liability Company”) whose purpose is to
acquire that certain parcel of real property, together with all improvements located
thereon, in the City of                     , State of                      (the “Property”) and
own, hold, sell, assign, transfer, operate, lease, mortgage, pledge and otherwise deal with
the Property. The Corporation shall exercise all powers enumerated in the General
Corporation Law of                      necessary or convenient to the conduct, promotion or
attainment of the business or purposes otherwise set forth herein.”




b. Certain Prohibited Activities.




The corporation shall be prohibited, except in certain circumstances, from engaging in or
causing the limited liability company to engage in certain activities, including various
types of insolvency proceedings, dissolution, liquidation, consolidation, merger, sale of
all or substantially all of the corporation’s or the limited liability company’s assets,
transfer of ownership assets, transfer of limited liability company interests, incurrence
of additional debt, amendment of the corporation’s articles of incorporation and amendment
of the articles of organization.


 


C-17









 






“Notwithstanding any provision hereof or of any other document governing the
formation, management or operation of the Corporation to the
contrary, the following shall govern: The Corporation shall only incur or cause the
Limited Liability Company to incur indebtedness in an amount necessary to acquire, operate
and maintain the Property. For so long as any mortgage lien exists on the Property, the
Corporation shall not and shall not cause the Limited Liability Company to incur, assume,
or guaranty any other indebtedness. The Corporation shall not and shall not cause the
Limited Liability Company to consolidate or merge with or into any other entity or convey
or transfer its properties and assets substantially as an entirety to any entity unless (i)
the entity (if other than the Corporation or Limited Liability Company) formed or surviving
such consolidation or merger or that acquired by conveyance or transfer of the properties
and assets of the Corporation or Limited Liability Company substantially as an entirety (a)
shall be organized and existing under the laws of the United States of America or any State
or the District of Columbia, (b) shall include in its organizational documents the same
limitations set forth in this Article                      and in Article [insert section setting
forth Separateness Covenants], and (c) shall expressly assume the due and punctual
performance of the Corporation’s obligations; and (ii) immediately after giving effect to
such transaction, no default or event of default under any agreement to which it is a party
shall have been committed by this corporation or the Limited Liability Company and be
continuing. For so long as a mortgage lien exists on the Property, the Corporation shall
not voluntarily commence a case with respect to itself or cause the Limited Liability
Company to voluntarily commence a case with respect to itself, as debtor, under the Federal
Bankruptcy Code or any similar federal or state statute without the unanimous consent of
the Board of Directors. For so long as a mortgage lien exists on the Property, without
first obtaining approval of the mortgagee holding a first mortgage lien on the Property (i)
no material amendment to this certificate of incorporation or to the Corporation’s By-Laws
nor to the articles of organization of the Limited Liability Company may be made and (ii)
neither the Corporation nor the Limited Liability Company shall dissolve, liquidate or
terminate without first obtaining approval of the mortgagee holding a first mortgage lien
on the Property.”




“The Board of Directors may not take any action requiring the unanimous affirmative vote of
100% of the members of the Board of Directors unless all directors including the
Independent Directors shall have participated in such vote.”




c. Indemnification.




Indemnification of a corporation’s directors and officers should be fully subordinated to
obligations respecting the Property.




“Notwithstanding any provision hereof or of any other document governing the formation,
management or operation of the Corporation to the contrary, the following shall govern:
Any indemnification shall be fully subordinated to any obligations respecting the Limited
Liability Company or the Property and shall
not constitute a claim against the Corporation in the event that cash flow is insufficient
to pay such obligations.”


 


C-18









 






d. Separateness Covenants.




In order to demonstrate that it is a bankruptcy remote entity not at risk of having its
assets substantively consolidated with those of another entity, the corporation must
observe certain covenants designed to make evident the special purpose entity’s
separateness from its affiliates.




“Notwithstanding any provision hereof or of any other document governing the formation,
management or operation of the Corporation to the contrary, the following shall govern:
For so long as any mortgage lien exists on the Property, in order to preserve and ensure
its separate and distinct corporate identity, in addition to the other provisions set forth
in this certificate of incorporation, the Corporation shall conduct its affairs in
accordance with the following provisions:



1. It shall establish and maintain an office through which its business shall be conducted
separate and apart from those of its parent and any affiliate and shall allocate fairly and
reasonably any overhead for shared office space.



2. It shall maintain separate corporate records and books of account from those of its parent
and any affiliate.



3. Its Board of Directors shall hold appropriate meetings (or act by unanimous consent) to
authorize all appropriate corporate actions, and in authorizing such actions, shall observe all
corporate formalities. The Board of Directors shall include at least two (2) individuals who are
Independent Directors. As used herein, an “Independent Director” shall mean an individual who
shall not have been at the time of such individual’s appointment, and may not have been at any time
(i) a partner, member, shareholder of, or an officer or employee of, the Corporation or any of its
respective partners, members, shareholders, subsidiaries or affiliates, (ii) a customer of, or
supplier to, the Corporation or managing member of the Corporation or any of their respective
partners, members, shareholders, subsidiaries or affiliates, (iii) a person controlling any such
partner, member, shareholder, supplier or customer, or (iv) a member of the immediate family of any
such shareholder, officer, employee, supplier or customer of any other director of the Corporation
or of the managing member of the Corporation. As used herein, the term “control” means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a person or entity, whether through ownership of voting securities, by contract or
otherwise.




4. It shall not commingle assets with those of its parent and any affiliate.




5. It shall conduct its own business in its own name.



6. It shall maintain financial statements separate from its parent and any affiliate.


 


C-19









 





7. It shall pay any liabilities out of its own funds, including salaries of any employees, not
funds of its parent or any affiliate.




8. It shall maintain an arm’s length relationship with its parent and any affiliate.




9. It shall maintain adequate capital in light of its contemplated business operations.



10. It shall not guarantee or become obligated for the debts of any other entity, including
its parent or any affiliate or hold out its credit as being available to satisfy the obligations of
others.




11. It shall not acquire obligations or securities of its partners, members or shareholders.




12. It shall use stationery, invoices and checks separate from its parent and any affiliate.



13. It shall not pledge its assets for the benefit of any other entity, including its parent
and any affiliate or make any loans or advances to any other person.




14. It shall hold itself out as an entity separate from its parent and any affiliate.




15. It shall correct any known misunderstanding regarding its separate identity.”




For purpose of this Article
 _____, the following terms shall have the following
meanings:




“affiliate” means any person controlling or controlled by or under common
control with the parent, including, without limitation (i) any person who has a familial
relationship, by blood, marriage or otherwise with any director, officer or employee of the
Corporation, its parent, or any affiliate thereof and (ii) any person which receives
compensation for administrative, legal or accounting services from this corporation, its
parent or any affiliate. For purposes of this definition, “control” when used with
respect to any specified person, means the power to direct the management and policies of
such person, directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.




“parent’’ means, with respect to a corporation, any other corporation owning
or controlling, directly or indirectly, fifty percent (50%) or more of the voting stock of
the Corporation.




“person” means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization, or government or any agency or political subdivision
thereof.


 


C-20









 






e. Voting.




When voting on matters concerning the limited liability company, notwithstanding that the
limited liability company is not then insolvent, the Corporation must take into account the
interest of the Limited Liability Company’s creditors, as well as those of its members.




“Notwithstanding any provision hereof or of any other document governing the formation,
management or operation of the Corporation to the contrary, the following shall govern:
When voting on matters concerning the Limited Liability Company, notwithstanding that the
Limited Liability Company is not then insolvent, the Corporation shall take into account
the interest of the Limited Liability Company’s creditors, as well as those of its
members.”




IV. OTHER STRUCTURES




The foregoing provisions do not exhaustively contemplate all ownership structures for a
mortgaged property. Situations involving ownership structures not specifically
contemplated by the provisions set forth on this Exhibit C shall nevertheless
require Single Purpose Entities substantively to comply with the requirements to these
provisions, modified as appropriate to accommodate the ownership structure in question.




 


C-21









 







EXHIBIT D


ENFORCEABILITY OPINION REQUIREMENTS





	1.	 	The Opinion shall be delivered on the Closing Date and shall satisfy all applicable
requirements of the Rating Agencies in relation thereto.







	2.	 	The Opinion shall be given by a professional law firm selected by Borrower and reasonably
acceptable to Lender.







	3.	 	The Opinion shall be in form and substance acceptable to Lender and shall be given in
relation to Borrower, Guarantor, Manager and any other relevant party to the Loan (each a
“Loan Party”). Depending on the nature of the transaction, the Opinion shall address
the applicable law of the State of New York, the State where the Property is located and each
State where any Loan Party is organized (collectively, the “Relevant States”). To the
extent that the Property is located in a jurisdiction outside of the State of New York and/or
any Loan Party is organized under a jurisdiction outside the States of New York or Delaware,
the appropriate opinions below should be given by local counsel. The Opinion shall be given
on the basis of an examination of an executed original of each completed Loan Document in
addition to such other documents or instruments counsel deems relevant.







	4.	 	The Opinion shall contain the following opinions:







	I.	 	Opinions with respect to the law of the State of Formation or Organization of the Loan
Parties







	 	(a)	 	Each Loan Party is a [Describe Legal Form] duly organized, validly existing
and in good standing under the laws of the State of [State of Organization] and is
authorized to do business and in good standing in the State of [State of
Organization].







	 	(b)	 	Each Loan Party has the requisite power to own its properties and to carry on
its business as now being conducted and to enter into the transactions covered by the
Loan Documents.







	 	(c)	 	The execution and delivery by each Loan Party of each Loan Document to which
it is a party has been duly authorized by all necessary partnership, company and/or
corporate action, as applicable. To the extent a party thereto, the Loan Documents
have been duly executed and delivered by each Loan Party.







	 	(d)	 	The execution, delivery and performance by each Loan Party of the Loan
Documents to which it is a party does not:







	 	(i)	 	conflict with or result in a breach of any of the terms,
conditions or provisions of, or constitute a default under, the partnership
agreement, partnership certificate, articles of incorporation, by-laws,
trust agreement or trust certificate, as applicable, of such Loan Party;





 


D-1









 











	 	(ii)	 	contravene any law, statute or regulation of the United
States of America or the [State of Organization] or any agency or political
subdivision of either thereof;







	 	(iii)	 	violate any order, writ, injunction, or decree of which,
after due inquiry, counsel has actual knowledge, issued by any court or
governmental authority of the United States of America or the [State of
Organization] or any agency or political subdivision of either thereof to
which such Loan Party is subject; or







	 	(iv)	 	conflict with or result in any breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any lien other than the
lien of the Loan Documents upon any of the assets or properties of such Loan
Party pursuant to the terms of any material indenture, mortgage, deed of
trust, agreement, contract or instrument to which such Loan Party is a party
or by which it or any of its assets or properties is bound.







	 	(e)	 	No order, consent, approval, license or authorization of, or filing,
recording or registration with, any governmental or public body or authority of the
United States of America or the State of [Relevant State] or any agency or political
subdivision of either thereof is required in connection with the execution and
delivery of any of the Loan Documents, the validity, binding effect or enforceability
of any of the Loan Documents or the consummation of the transactions contemplated
thereby.







	 	(f)	 	There are no actions, suits or proceedings by or before any court,
governmental or regulatory authority or agency of which, after due inquiry, we have
actual knowledge pending or threatened against or affecting any Loan Party or
Borrower’s rights with respect to the Property wherein an adverse ruling or decision,
individually or collectively with other such actions, suits or proceedings, is
reasonably likely (i) to affect materially and adversely the ability of any Loan Party
to consummate the transactions contemplated by the Loan Documents or to perform its
obligations under any of the Loan Documents, or (ii) to result in a challenge to the
legality, validity, binding effect or enforceability of any of the Loan Documents.







	 	(g)	 	To the extent the State of [State of Organization] UCC is applicable to the
authorization of the Financing Statement, pursuant to the provisions of the Loan
Agreement and the Security Instrument, Borrower has authorized the
filing of the Financing Statement for purposes of Section 9-509 of the State of
[State of Organization] UCC.





 


D-2









 











	 	(h)	 	To the extent the State of [State of Organization] UCC is applicable, the
financing Statement includes not only all of the types of information required by
Section 9-502(a) of the State of [State of Organization] UCC but also the types of
information without which the Filing Office may refuse to accept the Financing
Statement pursuant to Section 9-516 of the State of [State of Organization] UCC.







	 	(i)	 	To the extent the State of [State of Organization] UCC is applicable, the
security interest of the Secured Party will be perfected in Borrower’s rights in all
UCC Collateral upon the later of the attachment of the security interest and the
filing of the Financing Statement in the Filing Office; provided, however, we express
no opinion with respect to (i) money, (ii) deposit accounts, (iii) letter of credit
rights, (iv) goods covered by a certificate of title statute, (v) as-extracted
collateral, timber to be cut, or (vi) any property subject to a statute, regulation or
treaty of the United States whose requirements for a security interest’s obtaining
priority over the rights of a lien creditor with respect to the property preempt
Section 9-310(a) of the State of [State of Organization]. “UCC Collateral” means the
portion of the Property (as defined in the Security Instrument), the Rate Cap
Collateral, the Account Collateral (as defined in the Loan Agreement) and the
Collateral Accounts (as defined in the Account Agreement) to the extent the UCC
governs a security interest in such collateral.







	 	(j)	 	You have asked whether Borrower is a “registered organization” as such term
is defined in Section 9-102(a)(70) of the State of [State of Organization] UCC.
Pursuant to Section 9-102(a)(70) of the State of [State of Organization] UCC, a
“registered organization” must be (i) organized solely under the laws of a single
State (or the United States) and (ii) the State (or the United States) must maintain a
public record showing the organization to have been organized.







	II.	 	Opinions with respect to New York Law







	 	(a)	 	To the extent governed by New York law and to the extent a party thereto, the
Loan Documents are the legal, valid and binding obligations of each Loan Party,
enforceable against such Loan Party in accordance with their terms.






 


D-3









 







	 	(b)	 	The execution, delivery and performance by each Loan Party of the Loan
Documents to which it is a party does not:







	 	(i)	 	contravene any law, statute or regulation of the United
States of America or the State of New York or any agency or political
subdivision of either thereof;







	 	(ii)	 	violate any order, writ, injunction, or decree of which,
after due inquiry, counsel has actual knowledge, issued by any court or
governmental authority of the United States of America or the State of New
York or any agency or political subdivision of either thereof to which such
Loan Party is subject; or







	 	(iii)	 	conflict with or result in any breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any lien other than the
lien of the Loan Documents upon any of the assets or properties of such Loan
Party pursuant to the terms of any material indenture, mortgage, deed of
trust, agreement, contract or instrument to which such Loan Party is a party
or by which it or any of its assets or properties is bound.







	 	(c)	 	No order, consent, approval, license or authorization of, or filing,
recording or registration with, any governmental or public body or authority of the
United States of America or the State of New York or any agency or political
subdivision of either thereof is required in connection with the execution and
delivery of any of the Loan Documents, the validity, binding effect or enforceability
of any of the Loan Documents or the consummation of the transactions contemplated
thereby.







	 	(d)	 	There are no actions, suits or proceedings by or before any court,
governmental or regulatory authority or agency of which, after due inquiry, we have
actual knowledge pending or threatened against or affecting any Loan Party or
Borrower’s rights with respect to the Property wherein an adverse ruling or decision,
individually or collectively with other such actions, suits or proceedings, is
reasonably likely (i) to affect materially and adversely the ability of any Loan Party
to consummate the transactions contemplated by the Loan Documents or to perform its
obligations under any of the Loan Documents, or (ii) to result in a challenge to the
legality, validity, binding effect or enforceability of any of the Loan Documents.







	 	(e)	 	The payment by Borrower and receipt by Lender of all principal and interest
will not violate the usury laws of the State of New York or otherwise constitute
unlawful interest.







	 	(f)	 	The provisions of the Loan Agreement and the Security Instrument are
effective to create, in favor of Lender to secure the obligations purported to be
secured thereby, a valid security interest in Borrower’s rights in the UCC Collateral.





 


D-4









 











	 	(g)	 	Under New York UCC, the provisions of the Account Agreement are effective to
perfect the security interest of Lender in Borrower’s rights in the Collateral
Accounts (as defined in the Account Agreement).







	III.	 	Opinions with respect to the law of States in which the Property is located







	 	(a)	 	Each Loan Party is authorized to do business and in good standing in the
State of [Relevant State].







	 	(b)	 	To the extent governed by the laws of the State of [Relevant States], the
Security Instrument and the Assignment of Leases are the legal, valid and binding
obligations of Borrower, enforceable against Borrower in accordance with their terms.







	 	(c)	 	The Security Instrument is in proper form so as to comply with recording
requirements of the State of [Relevant State]. The Security Instrument creates in
favor of Lender valid liens on the portion of the Property that are located in the
State of [Relevant States], securing payment of the Obligations (as defined in the
Security Instrument), and no further action will be required for the valid creation of
such liens. Upon recordation in the office of the [Recording Office] the Security
Instrument will provide constructive notice of the terms thereof and the liens created
thereby to third parties acquiring interests in the portion of the Property that are
located in the State of [Relevant States] subsequent to such recordation.







	 	(d)	 	The Assignment of Leases is in proper form so as to comply with the recording
requirements of the State of [Relevant States]. At the time the Assignment of Leases
is delivered to the Recording Office for recording, it will take effect as to all
creditors and subsequent purchasers for a valuable consideration without notice, and
it shall be entitled to priority over any other similar instrument delivered to said
Recording Office for recording after that time, in the absence of actual notice.







	 	(e)	 	Pursuant to the provisions of the Security Instrument Borrower has authorized
the filing of the Fixture Financing Statement identifying the Fixture Collateral for
purposes of Section 9-509 of the [Relevant States] UCC. “Fixture Collateral” means
that portion of the UCC Collateral which consists of “fixtures” (as defined in Article
9 of the UCC) to the extent the UCC governs a security interest in such collateral.







	 	(f)	 	The Fixture Financing Statement includes not only all the types of
information required by Section 9-502(a) and 9-502(b) of the [Relevant States] UCC but
also the types of information without which the Fixture Filing Office may refuse to
accept the Fixture Financing Statement pursuant to Section 9-516 of the State of
[Relevant States] UCC.





 


D-5









 











	 	(g)	 	Under the [Relevant States] UCC, the security interest of the Secured Party
will be perfected in Borrower’s rights in any Fixture Collateral
located on the real property described on Schedule 1 to the Fixture Financing
Statement upon the later of the attachment of the security interest and the filing
of the Fixture Financing Statement in the Fixture Filing Office.







	 	(h)	 	Borrower has paid all recording tax due in connection with the recording of
the Security Instrument and the Assignment of Leases. No additional deed of trust
recording, intangibles tax, documentary stamp tax or similar taxes or charges, other
than nominal recordation or filing fees, are required to be paid as a condition of the
legality of enforceability of the Security Instrument or the Assignment of Leases.







	 	(i)	 	The State of [Relevant States] has no law pursuant to which a lien against
any assets or properties of Borrower (whether real, personal, mixed, tangible or
intangible) superior to the lien created by the Security Instrument could arise as a
result of a violation of environmental laws or regulations of such State. No
environmental law or regulation of the State of [Relevant States] would require any
remedial or removal action or certification of nonapplicability as a condition to the
granting of the Security Instrument, the foreclosure or other enforcement of the Loan
Documents or the sale of any assets or properties of Borrower (whether real, personal,
mixed, tangible or intangible) located in the State of [Relevant States].







	 	(j)	 	No order, consent, approval, license or authorization of, or filing,
recording or registration with, any governmental or public body or authority of the
United States of America or the State of [Relevant States] or any agency or political
subdivision of either thereof is required in connection with the execution and
delivery of any of the Loan Documents, the validity, binding effect or enforceability
of any of the Loan Documents or the consummation of the transactions contemplated
thereby.







	 	(k)	 	There are no actions, suits or proceedings by or before any court,
governmental or regulatory authority or agency of which, after due inquiry, we have
actual knowledge pending or threatened against or affecting any Loan Party or
Borrower’s rights with respect to the Property wherein an adverse ruling or decision,
individually or collectively with other such actions, suits or proceedings, is
reasonably likely (i) to affect materially and adversely the ability of any Loan Party
to consummate the transactions contemplated by the Loan Documents or to perform its
obligations under any of the Loan Documents, or (ii) to result in a challenge to the
legality, validity, binding effect or enforceability of any of the Loan Documents.





 


D-6









 











	 	(l)	 	If the Obligations (as defined in the Security Instrument) were to be
governed by the laws of the State of [Relevant States], the payment by Borrower and
receipt by Lender of all principal and interest will not
violate the usury laws of the State of [Relevant States] or otherwise constitute
unlawful interest.







	 	(m)	 	A federal court sitting in the State of [Relevant States] and applying the
conflict of law rules of the State of [Relevant States], and the state courts in the
State of [Relevant States], would give effect to the choice of law provisions
contained in the Loan Documents. If counsel is not able to give this opinion as an
unqualified opinion, an opinion that the Loan Agreement and Note would be enforceable
under the law of the State of [Relevant States] if such law were held to apply will be
required.







	 	(n)	 	The operation of any term of the Loan Documents, including, without
limitation, the terms regarding late charges, default interest or prepayment premiums,
or the lawful exercise of any right thereunder, shall not render the Loan Documents
unenforceable, in whole or in part, or subject to any right of rescission, set-off,
counterclaim or defense.







	5.	 	The Opinion shall be addressed to Lender and its successors and assigns and shall state that
it may be relied upon by (i) any assignee of Lender’s interest in the Loan, (ii) any servicer
of the Loan, (iii) any purchaser of the Loan or any portion thereof in any Securitization,
(iv) any Rating Agency involved in a Securitization of the Loan, (v) the issuer of securities
in a Securitization of the Loan, and (vi) any trustee or servicer appointed in connection with
a Securitization of the Loan.







 


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EXHIBIT E


INTENTIONALLY DELETED





 


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EXHIBIT F


INTENTIONALLY DELETED




 


F-1









 







EXHIBIT G


INTENTIONALLY DELETED





 


G-1









 







EXHIBIT H


INTENTIONALLY DELETED





 


H-1









 







EXHIBIT I


INTENTIONALLY DELETED





 


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EXHIBIT J


INTENTIONALLY DELETED





 


J-1









 





EXHIBIT K


BORROWER ORGANIZATIONAL STRUCTURE








	BLUELINX HOLDINGS INC.
ABP AL (MIDFIELD) LLC
ABP AR (LITTLE ROCK) LLC
ABP CA (CITY OF INDUSTRY) LLC
ABP CA (NATIONAL CITY) LLC
ABP CA (NEWARDK) LLC
ABP CO I (DENVER) LLC
ABP CA (RIVERSIDE) LLC
ABP CT (NEWTON) LLC
ABP FL (MIAMI) LLC
ABP FL (LAKE CITY) LLC
ABP FL (TAMPA) LLC
ABP FL (PENSACOLA) LLC
ABP GA (LAWRENCEVILLE) LLC
ABP FL (YULEE) LLC
ABP IL (UNIVERSITY PARK) LLC
ABP IA (DES MOINES) LLC
ABP KY (INDEPENDENCE) LLC
ABP IN (ELKHART) LLC
ABP MA (BELLINGHAM) LLC
ABP LA (SHEVEPORT) LLC
ABP ME (PORTLAND) LLC
ABP MI (GRAND RAPIDS) LLC
ABP MI (DETROIT) LLC
ABP MN (MAPLE GROVE) LLC
ABP MN (EAGAN) LLC
ABP MO (KANSAS CITY) LLC
ABP MO (BRIDGETON) LLC
ABP MS (PEARL) LLC
ABP MO (SPRINGFIELD) LLC
ABP NC (CHARLOTTE) LLC
ABP NC (BUTNER) LLC
ABP NJ (DENVILLE) LLC
ABP ND (NORTH FARGO) LLC
ABP NY (YAPHANK) LLC
ABP NM (ALBUQUERQUE) LLC
ABP OK (TULSA) LLC
ABP OH (TALMADGE) LLC
ABP PA (ALLENTOWN) LLC
ABP OR (BEAVERTON) LLC
ABP SC (CHARLESTON) LLC
ABP PA (STANTON) LLC
ABP TN (ERWIN) LLC
ABP SD (SIOUX FALLS) LLC
ABP TN (NASHVILLE) LLC
ABP TN (MEMPHIS) LLC
ABP TX (FORT WORTH) LLC
ABP TX (EL PASO) LLC
ABP TX (HOUSTON) LLC
ABP TX (HARLINGEN) LLC
ABP TX (SAN ANTONIO) LLC
ABP TX (LUBBOCK) LLC
ABP VA (VIRGINIA BEACH) LLC
ABP VA (RICHMOND) LLC
ABP VA (RICHMOND) LLC
ABP VT (SHELBURNE) LLC
ABP WI (WAUSAU) LLC
ABP MD (BALTIMORE) LLC
ABP MD (BALTIMORE) SUBSIDIARY LLC





 


K-1









 







EXHIBIT L


INTENTIONALLY DELETED





 


L-1









 







EXHIBIT M


FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT




Reference is made to that certain Loan and Security Agreement, dated as of                      200__ 

(as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”)
between the borrower signatory thereto (collectively, “Borrower”), and German American
Capital Corporation, a Maryland corporation (“Lender”), and certain notes of even date with
the Loan Agreement (collectively, the “Note”), made by Borrower in favor of Lender. Terms
defined in the Loan Agreement and not otherwise defined herein are used herein with the same
meaning.



The Assignor and the Assignee referred to on Schedule 1 attached hereto agree as
follows:



1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases
and assumes from the Assignor, an interest in and to the Assignor’s rights and obligations under
the Note and the Loan Agreement as of the date hereof equal to the percentage interest specified on
Schedule 1 attached hereto. After giving effect to such sale and assignment, the amount of the
Loan and the Note owing to the Assignee will be as set forth on Schedule 1 attached hereto.



2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to be created under or
in connection with the Loan Documents or any other instrument or document furnished pursuant
thereto; (iii) makes no representation or warranty and assumes no responsibility with respect to
the financial condition of Borrower or the performance or observance by Borrower of any of its
obligations under any Loan Document or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note or notes held by the Assignor and requests that the Lender exchange such
Note or notes for a new note or notes payable to the order of the Assignee in an amount equal to
the principal amount of the Loan assumed by the Assignee pursuant hereto or new notes payable to
the order of the Assignee in an amount equal to the principal amount of the Loan assumed by the
Assignee pursuant hereto and the Assignor in an amount equal to the principal amount of the Loan
retained by the Assignor under the Note and the Loan Agreement, respectively, as specified on
Schedule 1 attached hereto.


 


M-1









 





3. The Assignee (i) confirms that it has received a copy of the Note and the Loan Agreement,
together with such financial statements and other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without reliance upon Lender or the
Assignor based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit decisions in taking
or not taking action under the Loan Agreement or the Note; (iii) appoints and authorizes Lender to
take such action as agent on its behalf and to exercise such powers and discretion under the Loan
Documents as are delegated to Lender by the terms thereof, together with such powers and discretion
as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their
terms all of the obligations that by the terms of the Loan Agreement and the Note are required to
be performed by it as an assignee of an interest therein.



4. Following the execution of this Assignment and Acceptance, it will be delivered to Lender
for acceptance and recording. The effective date for this Assignment and Acceptance (the
“Effective Date”) shall be the date of acceptance hereof by the Lender, unless otherwise
specified on Schedule 1 attached hereto.



5. Upon such acceptance and recording by Lender, as of the Effective Date, (i) the Assignee
shall be a party to the Loan Agreement and the Note and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of an assignee thereof, and (ii) the Assignor
shall, to the extent provided in the Loan Agreement and this Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Loan Agreement and the Note.



6. Upon such acceptance and recording by Lender, from and after the Effective Date, Lender
shall make all payments under the Loan Agreement and the Note or notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal, interest and commitment
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Loan Agreement and the Note or notes for periods prior to the
Effective Date directly between themselves.



7. This Assignment and Acceptance shall be governed by, and construed in accordance with, the
laws of the State of New York.



8. This Assignment and Acceptance may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of this Assignment and
Acceptance.



* * *




IN WITNESS WHEREOF, the Assignor and the Assignee have caused this Assignment and Acceptance and
Schedule 1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified on Schedule 1.




 


M-2









 







Schedule 1




	 	 	 	 	 
	As to the Loan in respect of which an interest is being assigned:
	 	 	 	 
	 
	 	 	 	 
	Percentage interest assigned:
	 	 	 	%
	 
	 	 	 
	 
	 	 	 	 
	Aggregate outstanding principal amount of the Loan assigned:
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	Principal amount of Note payable to Assignee:
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	Principal amount of Note payable to Assignor:
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	Effective Date (if other than date of acceptance by Lender):                     __, ______
	 	 	 	 






	 	 	 	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR], as Assignor	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	Dated:                      __, ____	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE], as Assignee	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	Dated:                     , ____	 	 






Accepted this
 _____ 
day of                     ,
 _____ 


[NAME OF LENDER]



	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 






 


M-3









 







EXHIBIT N



FORM OF

SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT




 





SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT




                    ,

Tenant


AND




GERMAN AMERICAN CAPITAL CORPORATION

Lender




	 	 	 	 	 
	 

	 	County:
	 	[                      ]
	 

	 	Section:
	 	[                      ]
	 

	 	Block:
	 	[                      ]
	 

	 	Lot:
	 	[                      ]
	 
	 
	 

	 	Premises:	 	 






Dated: as of                     , ____




 





Record and return by mail to:

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, New York 10036

Attention: Harvey R. Uris, Esq.




 


N-1









 







SUBORDINATION,

NON-DISTURBANCE AND ATTORNMENT AGREEMENT




THIS AGREEMENT made as of this
 _____ 
day of
 _____, 200_, between GERMAN AMERICAN CAPITAL
CORPORATION, a Maryland corporation, having an address at 60 Wall Street, New York, New York 10005
(hereinafter called “Lender”), and
 _____, a                     , having an address at
                     (hereinafter called “Tenant”).



RECITALS:




WHEREAS, by a lease (the “Original Lease”) dated
 _____, 200__ 
between
                     (hereinafter called “Landlord”), as landlord, and Tenant, as tenant, as
amended by lease amendment[s] dated
 _____, 200_, [_____, 200__ 
and
 _____, 200_] (the
Original Lease, as so amended, is hereinafter the “Lease”), a memorandum of which Lease was dated

 _____ 
and was recorded in
 _____ 
in Reel
 _____, Page
 _____, [ADD RECORDING DATA FOR MEMORANDA OF
AMENDMENTS, IF APPLICABLE], Landlord leased to Tenant certain premises located in
                                         (the “Premises”) on the property described in Schedule “A”
annexed hereto and made a part hereof (the “Property”); and



WHEREAS, Lender is about to make a loan to Landlord, which loan shall be secured by, among
other things, a mortgage or deed of trust (which mortgage or deed of trust, and all amendments,
renewals, increases, modifications, replacements, substitutions, extensions, spreaders and
consolidations thereof and all re-advances thereunder and addictions thereto, is referred to as the
“Security Instrument”) encumbering the Property; and



WHEREAS, Lender and Tenant desire to confirm their understanding and agreement with respect to
the Lease and the Security Instrument.



NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained,
Lender and Tenant hereby agree and covenant as follows:



1. The Lease, and all of the terms, covenants, provisions and conditions thereof (including,
without limitation, any right of first refusal, right of first offer, option or any similar right
with respect to the sale or purchase of the Property, or any portion thereof) is, shall be and
shall at all times remain and continue to be subject and subordinate in all respects to the lien,
terms, covenants, provisions and conditions of the Security Instrument and to all advances and
re-advances made thereunder and all sums secured thereby. This provision shall be self-operative
but Tenant shall execute and deliver any additional instruments which Lender may reasonably require
to effect such subordination.


 


N-2









 





2. So long as (i) Tenant is not in default (beyond any period given in the Lease to Tenant to
cure such default) in the payment of rent, percentage rent or additional
rent or in the performance or observance of any of the other terms, covenants, provisions or
conditions of the Lease on Tenant’s part to be performed or observed, (ii) Tenant is not in default
under this Agreement and (iii) the Lease is in full force and effect: (a) Tenant’s possession of
the Premises and Tenant’s rights and privileges under the Lease, or any extensions or renewals
thereof which may be effected in accordance with any option therefor which is contained in the
Lease, shall not be diminished or interfered with by Lender, and Tenant’s occupancy of the Premises
shall not be disturbed by Lender for any reason whatsoever during the term of the Lease or any such
extensions or renewals thereof and (b) Lender will not join Tenant as a party defendant in any
action or proceeding to foreclose the Security Instrument or to enforce any rights or remedies of
Lender under the Security Instrument which would cut-off, destroy, terminate or extinguish the
Lease or Tenant’s interest and estate under the Lease (except to the extent required so that
Tenant’s right to receive or set-off any monies or obligations owed or to be performed by any of
Lender’s predecessors-in-interest shall not be enforceable thereafter against Lender or any of
Lender’s successors-in-interest). Notwithstanding the foregoing provisions of this paragraph, if
it would be procedurally disadvantageous for Lender not to name or join Tenant as a party in a
foreclosure proceeding with respect to the Security Instrument, Lender may so name or join Tenant
without in any way diminishing or otherwise affecting the rights and privileges granted to, or
inuring to the benefit of, Tenant under this Agreement.



3. (A) After notice is given by Lender that the Security Instrument is in default and that
the rentals under the Lease should be paid to Lender, Tenant will attorn to Lender and pay to
Lender, or pay in accordance with the directions of Lender, all rentals and other monies due and to
become due to Landlord under the Lease or otherwise in respect of the Premises. Such payments
shall be made regardless of any right of set-off, counterclaim or other defense which Tenant may
have against Landlord, whether as the tenant under the Lease or otherwise.



(B) In addition, if Lender (or its nominee or designee) shall succeed to the rights of
Landlord under the Lease through possession or foreclosure action, delivery of a deed or otherwise,
or another person purchases the Property or the portion thereof containing the Premises upon or
following foreclosure of the Security Instrument or in connection with any bankruptcy case
commenced by or against Landlord, then at the request of Lender (or its nominee or designee) or
such purchaser (Lender, its nominees and designees, and such purchaser, and their respective
successors and assigns, each being a “Successor-Landlord”), Tenant shall attorn to and
recognize Successor-Landlord as Tenant’s landlord under the Lease and shall promptly execute and
deliver any instrument that Successor-Landlord may reasonably request to evidence such attornment.
Upon such attornment, the Lease shall continue in full force and effect as, or as if it were, a
direct lease between Successor-Landlord and Tenant upon all terms, conditions and covenants as are
set forth in the Lease. If the Lease shall have terminated by operation of law or otherwise as a
result of or in connection with a bankruptcy case commenced by or against Landlord or a foreclosure
action or proceeding or delivery of a deed in lieu, upon request of Successor-Landlord, Tenant
shall promptly execute and deliver a direct lease with Successor-Landlord which direct lease shall
be on substantially the same terms and conditions as the Lease (subject, however, to the provisions
of clauses (i)-(v) of this
paragraph 3(B)) and shall be effective as of the day the Lease shall have terminated as
aforesaid. Notwithstanding the continuation of the Lease, the attornment of Tenant thereunder or
the execution of a direct lease between Successor-Landlord and Tenant as aforesaid,
Successor-Landlord shall not:




(i) be liable for any previous act or omission of Landlord under the Lease;



(ii) be subject to any off-set, defense or counterclaim which shall have theretofore accrued
to Tenant against Landlord;



 


N-3









 






(iii) be bound by any modification of the Lease or by any previous prepayment of rent or
additional rent made more than one (1) month prior to the date same was due which Tenant might have
paid to Landlord, unless such modification or prepayment shall have been expressly approved in
writing by Lender;



(iv) be liable for any security deposited under the Lease unless such security has been
physically delivered to Lender or Successor-Landlord; and



(v) be liable or obligated to comply with or fulfill any of the obligations of the Landlord
under the Lease or any agreement relating thereto with respect to the construction of, or payment
for, improvements on or above the Premises (or any portion thereof), leasehold improvements, tenant
work letters and/or similar items.



4. Tenant agrees that without the prior written consent of Lender, it shall not (a) amend,
modify, terminate or cancel the Lease or any extensions or renewals thereof, (b) tender a surrender
of the Lease, (c) make a prepayment of any rent or additional rent more than one (1) month in
advance of the due date thereof, or (d) subordinate or permit the subordination of the Lease to any
lien subordinate to the Security Instrument. Any such purported action without such consent shall
be void as against the holder of the Security Instrument.



5. (A) Tenant shall promptly notify Lender of any default by Landlord under the Lease and of
any act or omission of Landlord which would give Tenant the right to cancel or terminate the Lease
or to claim a partial or total eviction.



(B) In the event of a default by Landlord under the Lease which would give Tenant the right,
immediately or after the lapse of a period of time, to cancel or terminate the Lease or to claim a
partial or total eviction, or in the event of any other act or omission of Landlord which would
give Tenant the right to cancel or terminate the Lease, Tenant shall not exercise such right (i)
until Tenant has given written notice of such default, act or omission to Lender and (ii) unless
Lender has failed, within sixty (60) days after Lender receives such notice, to cure or remedy the
default, act or omission or, if such default, act or omission shall be one which is not reasonably
capable of being remedied by Lender within such sixty (60) day period, until a reasonable period
for remedying such default, act or omission shall have elapsed following the giving of such notice
and following the time when Lender shall have become entitled under the Security Instrument to
remedy the same (which reasonable period shall in no event be less than the
period to which Landlord would be entitled under the Lease or otherwise, after similar notice,
to effect such remedy), provided that Lender shall with due diligence give Tenant written notice of
its intention to and shall commence and continue to, remedy such default, act or omission. If
Lender cannot reasonably remedy a default, act or omission of Landlord until after Lender obtains
possession of the Premises, Tenant may not terminate or cancel the Lease or claim a partial or
total eviction by reason of such default, act or omission until the expiration of a reasonable
period necessary for the remedy after Lender secures possession of the Premises. To the extent
Lender incurs any expenses or other costs in curing or remedying such default, act or omission,
including, without limitation, attorneys’ fees and disbursements, Lender shall be subrogated to
Tenant’s rights against Landlord.


(C) Notwithstanding the foregoing, Lender shall have no obligation hereunder to remedy such
default, act or omission.



 


N-4









 






6. To the extent that the Lease shall entitle Tenant to notice of the existence of any
mortgage and the identity of any mortgagee or any ground lessor, this Agreement shall constitute
such notice to Tenant with respect to the Security Instrument and Lender.



7. Upon and after the occurrence of a default under the Security Instrument, which is not
cured after any applicable notice and/or cure periods, Lender shall be entitled, but not obligated,
to exercise the claims, rights, powers, privileges and remedies of Landlord under the Lease and
shall be further entitled to the benefits of, and to receive and enforce performance of, all of the
covenants to be performed by Tenant under the Lease as though Lender were named therein as
Landlord.



8. Anything herein or in the Lease to the contrary notwithstanding, in the event that a
Successor-Landlord shall acquire title to the Property or the portion thereof containing the
Premises, Successor-Landlord shall have no obligation, nor incur any liability, beyond
Successor-Landlord’s then interest, if any, in the Property, and Tenant shall look exclusively to
such interest, if any, of Successor-Landlord in the Property for the payment and discharge of any
obligations imposed upon Successor-Landlord hereunder or under the Lease, and Successor-Landlord is
hereby released or relieved of any other liability hereunder and under the Lease. Tenant agrees
that, with respect to any money judgement which may be obtained or secured by Tenant against
Successor-Landlord, Tenant shall look solely to the estate or interest owned by Successor-Landlord
in the Property, and Tenant will not collect or attempt to collect any such judgement out of any
other assets of Successor-Landlord.



9. Notwithstanding anything to the contrary in the Lease, Tenant agrees for the benefit of
Landlord and Lender that, except as permitted by, and fully in accordance with, applicable law,
Tenant shall not generate, store, handle, discharge or maintain in, on or about any portion of the
Property, any asbestos, polychlorinated biphenyls, or any other hazardous or toxic materials,
wastes and substances which are defined, determined or identified as such (including, but not
limited to, pesticides and petroleum products if they are defined, determined or identified as
such) in any federal, state or local laws, rules or regulations (whether now existing or hereafter
enacted or promulgated) or any judicial
or administrative interpretation of any thereof, including any judicial or administrative
interpretation of any thereof, including any judicial or administrative orders or judgments.


 


N-5









 





10. If the Lease provides that Tenant is entitled to expansion space, Successor-Landlord shall
have no obligation nor any liability for failure to provide such expansion space if a prior
landlord (including, without limitation, Landlord), by reason of a lease or leases entered into by
such prior landlord with other tenants of the Property, has precluded the availability of such
expansion space.



11. Except as specifically provided in this Agreement, Lender shall not, by virtue of this
Agreement, the Security Instrument or any other instrument to which Lender may be a party, be or
become subject to any liability or obligation to Tenant under the Lease or otherwise.



12. (A) Tenant acknowledges and agrees that this Agreement satisfies and complies in all
respects with the provisions of Article
 _____ 
of the Lease and that this Agreement supersedes (but
only to the extent inconsistent with) the provisions of such Article and any other provision of the
Lease relating to the priority or subordination of the Lease and the interests or estates created
thereby to the Security Instrument.



(B) Tenant agrees to enter into a subordination, non-disturbance and attornment agreement with
any lender which shall succeed Lender as lender with respect to the Property, or any portion
thereof, provided such agreement is substantially similar to this Agreement. Tenant does herewith
irrevocably appoint and constitute Lender as its true and lawful attorney-in-fact in its name,
place and stead to execute such subordination, non-disturbance and attornment agreement, without
any obligation on the part of Lender to do so. This power, being coupled with an interest, shall
be irrevocable as long as the Indebtedness secured by the Security Instrument remains unpaid.
Lender agrees not to exercise its rights under the preceding two sentences if Tenant promptly
enters into the subordination, non-disturbance and attornment agreement as required pursuant to the
first sentence of this subparagraph (B).



13. (A) Any notice required or permitted to be given by Tenant to Landlord shall be
simultaneously given also to Lender, and any right to Tenant dependent upon notice shall take
effect only after notice is so given. Performance by Lender shall satisfy any conditions of the
Lease requiring performance by Landlord, and Lender shall have a reasonable time to complete such
performance as provided in Paragraph 5 hereof.



(B) All notices or other communications required or permitted to be given to Tenant or to
Lender pursuant to the provisions of this Agreement shall be in writing and shall be deemed given
only if mailed by United States registered mail, postage prepaid, or if sent by nationally
recognized overnight delivery service (such as Federal Express or United States Postal Service
Express Mail), addressed as follows: to Tenant, at the address first set forth above, Attention:
                    ; to Lender, at the address first set forth above, Attention:                                         and General
Counsel, with a copy to Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New
York 10036,
Attention: Harvey R. Uris, Esq.; or to such other address or number as such party may
hereafter designate by notice delivered in accordance herewith. All such notices shall be deemed
given three (3) business days after delivery to the United States Post office registry clerk if
given by registered mail, or on the next business day after delivery to an overnight delivery
courier.


 


N-6









 





14. This Agreement may be modified only by an agreement in writing signed by the parties
hereto, or their respective successors-in-interest. This Agreement shall inure to the benefit of
and be binding upon the parties hereto, and their respective successors and assigns. The term
“Lender” shall mean the then holder of the Security Instrument. The term “Landlord” shall mean the
then holder of the landlord’s interest in the Lease. The term “person” shall mean an individual,
joint venture, corporation, partnership, trust, limited liability company, unincorporated
association or other entity. All references herein to the Lease shall mean the Lease as modified
by this Agreement and to any amendments or modifications to the Lease which are consented to in
writing by Lender. Any inconsistency between the Lease and the provisions of this Agreement shall
be resolved, to the extent of such inconsistency, in favor of this Agreement.




15. Tenant hereby represents to Lender as follows:




(a) The Lease is in full force and effect and has not been further amended.



(b) There has been no assignment of the Lease or subletting of any portion of the premises
demised under the Lease.



(c) There are no oral or written agreements or understandings between Landlord and Tenant
relating to the premises demised under the Lease or the Lease transaction except as set forth in
the Lease.



(d) The execution of the Lease was duly authorized and the Lease is in full force and effect
and to the best of Tenant’s knowledge there exists no default (beyond any applicable grace period)
on the part of either Tenant or Landlord under the Lease.



(e) There has not been filed by or against nor to the best of the knowledge and belief of
Tenant is there threatened against Tenant, any petition under the bankruptcy laws of the United
States.



(f) To the best of Tenant’s knowledge, there is no present assignment, hypothecation or pledge
of the Lease or rents accruing under the Lease by Landlord, other than pursuant to the Security
Instrument.



16. Whenever, from time to time, reasonably requested by Lender (but not more than three (3)
times during any calendar year), Tenant shall execute and deliver to or at the direction of Lender,
and without charge to Lender, one or more written certifications, in a form acceptable to Tenant,
of all of the matters set forth in Paragraph 15 above, and any other information the Lender may
reasonably require to confirm the current status of the Lease.


 


N-7









 





17. BOTH TENANT AND LENDER HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.



18. This Agreement shall be governed by and construed in accordance with the laws of the State
in which the Property is located.



					
	 
	 
	[Signature
	 	Page
	 	Follows]






 


N-8









 





IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.



	 	 	 	 	 	 	 	 	 
	 	 	GERMAN AMERICAN CAPITAL CORPORATION,	 	 
	 	 	a Maryland corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	[TENANT]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 






AGREED AND CONSENTED TO:



LANDLORD:



[                                                            ]




	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






 


N-9









 





	 	 	 	 	 
	STATE OF NEW YORK

	 	)
	 
	 

	 	) ss.
	 
	COUNTY OF NEW YORK

	 	)	 






On the
 _____ 
day of                      in the year 200__ 
before me, the undersigned, a notary public
in and for said state, personally appeared                     , personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
capacity, and that by his/her/their signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument.



	 	 	 
	 

	 	 
	 

	 	Notary Public






	 	 	 
	[Notary Seal]

	 	My commission expires:






	 	 	 	 	 
	STATE OF NEW YORK

	 	)	 	 
	 

	 	) ss.	 
	COUNTY OF NEW YORK

	 	)	 	 






On the
 _____ 
day of                      in the year 200__ 
before me, the undersigned, a notary public
in and for said state, personally appeared                                         , personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
capacity, and that by his/her/their signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument.



	 	 	 
	 

	 	 
	 

	 	Notary Public






	 	 	 
	[Notary Seal]

	 	My commission expires:






 


N-10









 





	 	 	 	 	 
	STATE OF NEW YORK

	 	)	 	 
	 

	 	) ss.	 
	COUNTY OF NEW YORK

	 	)	 	 






On the
 _____ 
day of                      in the year 200__ 
before me, the undersigned, a notary public
in and for said state, personally appeared                     , personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
capacity, and that by his/her/their signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument.



	 	 	 
	 

	 	 
	 

	 	Notary Public






	 	 	 
	[Notary Seal]

	 	My commission expires:






	 	 	 	 	 
	STATE OF NEW YORK

	 	)	 	 
	 

	 	) ss.	 
	COUNTY OF NEW YORK

	 	)	 	 






On the
 _____ 
day of                      in the year 200__ 
before me, the undersigned, a notary public
in and for said state, personally appeared                                         , personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
capacity, and that by his/her/their signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument.



	 	 	 
	 

	 	 
	 

	 	Notary Public






	 	 	 
	[Notary Seal]

	 	My commission expires:






 


N-11









 





SCHEDULE A TO SNDA


Legal Description of Property





 


N-12









 







EXHIBIT O


[INTENTIONALLY DELETED]




 


O-1









 







EXHIBIT P 


FORM OF MASTER LEASE RENT PAYMENT DIRECTION LETTER




[Borrower Letterhead]




BlueLinx Corporation

[Address]



[                    ], 2006





	 	Re:	 	 [Master Lease Agreement] between [Borrower] (“Borrower”), as lessor,
and BlueLinx Corporation, a Delaware corporation, as lessee, dated [                    ], 2006






Ladies and Gentlemen:



With reference to the above referenced lease (the “Master Lease”), please be advised
that Borrower has obtained a loan (the “Loan”) with German American Capital Corporation,
having an address at 60 Wall Street, New York, New York 10005 (together with its successors and
assigns, “Lender”) pursuant to that certain Loan and Security Agreement of even date
herewith between Borrower and Lender (the “Loan Agreement”), which Loan is secured by, among other
things, the properties demised by the Master Lease. Capitalized terms not separately defined
herein shall the meanings provided in the Loan Agreement.



In connection with the Loan, from and after the date hereof and until notified otherwise by
written instruction from Lender, you are hereby irrevocably instructed to (a) make all payments of
Master Lease Scheduled Rent directly to the Holding Account at all times during the term of the
Loan and (b) make all payment of Master Lease Variable Additional Rent directly to the Holding
Account at all times during the continuance of an Event of Default and during any Low LCR Cash
Sweep Period, in each case by wire transfer as follows:



	 	 	 	 	 
	 

	 	Bank:
	 	[                                        ]
	 

	 	Account Name:
	 	[                                        ]
	 

	 	Account No.:
	 	[                                        ]
	 

	 	ABA No.:
	 	[                                        ]






 


P-1









 





If you have any questions regarding this letter, please contact Borrower at the address
indicated above.




Very truly yours,




BORROWER:




[Borrower Signature Block(s)]



	 	 	 
	cc:

	 	German American Capital Corporation
	 

	 	60 Wall Street, 10th Floor
	 

	 	New York, New York 10005
	 

	 	Attention: Todd Sammann







 


P-2









 







EXHIBIT Q


INTENTIONALLY DELETED



 


Q-1









 





EXHIBIT R


INTENTIONALLY DELETED




 


R-1









 







EXHIBIT S


INTENTIONALLY DELETED





 


S-1









 







EXHIBIT T


CERTIFICATE OF INDEPENDENT MANAGER/MEMBER/DIRECTOR*





THE UNDERSIGNED,                                        , hereby certifies as follows:



1. I have been elected to serve as an independent member/manager of [INSERT BORROWER NAME], a
Delaware limited liability company (the “Company”).



2. I am aware that, under its Limited Liability Company Agreement, the Company is required to
have at least two so-called “Independent Managers” and/or “Independent Members”.



3. I hereby certify that I am aware of the definition of and requirement for Independent
Managers and Independent Members as set forth in the Limited Liability Company Agreement of the
Company, including but not limited to, the requirement that when voting on a matter put to the vote
of the membership or board of managers, that notwithstanding that the Company [may be insolvent, an
Independent Manager shall, to the extent permitted by law, take into account the interest of the
creditors of the Company as well as the interest of the Company. As an Independent Manager and/or
Independent Member of the Company, I will vote in accordance with my fiduciary duties under
applicable law.



4. I hereby certify that I meet the requirements of an Independent Manager and/or Independent
Member as set forth in the Limited Liability Company Agreement.


 





	 	 	 
	*	 	Following are contacts for independent
directors/managers/members appinted by borrowers on prior transaction:

	 
	 	 	CT Corporation System

Attention: Corporate Staffing Division

The Corporation Trust Center

1209 Orange Street

Wilmington, DE 19801

Attention: Domenic Borriello

Telephone: (302) 777-0240


	 
	 	 	Mark A. Ferrucci (no longer employed by CT Corporation System)

212 Mangum Drive

Bear, DE 19701

(302) 836-9162 (telephone)

(302) 8376-836-9182 (fax)




 


T-1









 









5. I certify that, subject to my fiduciary duties as an Independent Manager and/or Independent
Member, it is my intention as a so-called “Independent Manager” and/or “Independent Member” to take
into account, to the extent permitted by law, the interest of all creditors of the Company as well
as the Company in fulfilling my duties as an Independent Manager and/or Independent Member of the
Company.



6. I understand that German American Capital Corporation and its successors, participants,
transferees and assigns, will rely on this Certificate in conjunction with loans to be made to the
Borrower.




Executed as of this
 _____ 
day of                     , 2006.



	 	 	 
	 

	 	 
	 

	 	Print Name:







 


T-2









 







SCHEDULE I



ALLOCATION LOAN AMOUNTS




Blue Linx Portfolio

Loan Allocations




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Allocated	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Loan %	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	“As-Is”	 	 	 	 	 	 	of	 	 	 	 
	No.	 	 	Name	 	Gross Revenue	 	 	As-Stabilized U/W	 	 	DSCR	 	 	Appraised Value	 	 	Allocated Loan	 	 	Value	 	 	UW Cap	 
	 	 	 	 	Riverside
	 	$	366,301	 	 	$	322,345	 	 	 	1.20	 	 	 	***	 	 	$	4,116,143	 	 	 	***	 	 	 	***	 
	 	 	 	 	Charlotte
	 	$	262,570	 	 	$	231,062	 	 	 	1.20	 	 	 	***	 	 	$	2,950,512	 	 	 	***	 	 	 	***	 
	 	 	 	 	Bridgeton
	 	$	577,500	 	 	$	508,200	 	 	 	1.20	 	 	 	***	 	 	$	6,489,396	 	 	 	***	 	 	 	***	 
	 	 	 	 	Denver
	 	$	395,640	 	 	$	348,163	 	 	 	1.20	 	 	 	***	 	 	$	4,445,826	 	 	 	***	 	 	 	***	 
	 	 	 	 	La Puente
	 	$	733,433	 	 	$	645,421	 	 	 	1.20	 	 	 	***	 	 	$	8,241,623	 	 	 	***	 	 	 	***	 
	 	 	 	 	Lawrenceville (Corp. HQ)
	 	$	1,400,000	 	 	$	1,232,000	 	 	 	1.20	 	 	 	***	 	 	$	15,731,870	 	 	 	***	 	 	 	***	 
	 	 	 	 	National City
	 	$	669,600	 	 	$	589,248	 	 	 	1.20	 	 	 	***	 	 	$	7,524,329	 	 	 	***	 	 	 	***	 
	 	 	 	 	Ft. Worth
	 	$	817,347	 	 	$	719,265	 	 	 	1.20	 	 	 	***	 	 	$	9,184,569	 	 	 	***	 	 	 	***	 
	 	 	 	 	Frederick
	 	$	2,847,500	 	 	$	2,505,800	 	 	 	1.30	 	 	 	***	 	 	$	29,536,153	 	 	 	***	 	 	 	***	 
	 	 	 	 	Nashville
	 	$	277,750	 	 	$	244,420	 	 	 	1.25	 	 	 	***	 	 	$	2,996,247	 	 	 	***	 	 	 	***	 
	 	 	 	 	Ypsilanti
	 	$	740,684	 	 	$	651,802	 	 	 	1.25	 	 	 	***	 	 	$	7,990,179	 	 	 	***	 	 	 	***	 
	 	 	 	 	Memphis
	 	$	220,943	 	 	$	194,430	 	 	 	1.25	 	 	 	***	 	 	$	2,383,438	 	 	 	***	 	 	 	***	 
	 	 	 	 	Pensacola
	 	$	323,532	 	 	$	284,708	 	 	 	1.25	 	 	 	***	 	 	$	3,490,123	 	 	 	***	 	 	 	***	 
	 	 	 	 	Pearl
	 	$	92,625	 	 	$	81,510	 	 	 	1.15	 	 	 	***	 	 	$	948,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Woodinville
	 	$	444,820	 	 	$	391,442	 	 	 	1.15	 	 	 	***	 	 	$	4,542,500	 	 	 	***	 	 	 	***	 
	 	 	 	 	Butner
	 	$	1,004,120	 	 	$	883,626	 	 	 	1.16	 	 	 	***	 	 	$	10,230,500	 	 	 	***	 	 	 	***	 
	 	 	 	 	Albuquerque
	 	$	261,720	 	 	$	230,314	 	 	 	1.18	 	 	 	***	 	 	$	2,607,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Des Moines
	 	$	153,192	 	 	$	134,809	 	 	 	1.18	 	 	 	***	 	 	$	1,524,700	 	 	 	***	 	 	 	***	 
	 	 	 	 	Miami
	 	$	437,189	 	 	$	384,726	 	 	 	1.18	 	 	 	***	 	 	$	4,345,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Beaverton
	 	$	578,424	 	 	$	509,013	 	 	 	1.17	 	 	 	***	 	 	$	5,800,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Newark
	 	$	1,039,360	 	 	$	914,637	 	 	 	1.19	 	 	 	***	 	 	$	10,270,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Independence
	 	$	656,568	 	 	$	577,780	 	 	 	1.18	 	 	 	***	 	 	$	6,560,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	New Stanton
	 	$	267,015	 	 	$	234,973	 	 	 	1.19	 	 	 	***	 	 	$	2,640,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Portland
	 	$	246,611	 	 	$	217,018	 	 	 	1.20	 	 	 	***	 	 	$	2,424,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Englewood (OFFICE) — SE
Denver
	 	$	687,210	 	 	$	604,745	 	 	 	1.20	 	 	 	***	 	 	$	6,720,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	San Antonio
	 	$	285,693	 	 	$	251,410	 	 	 	1.21	 	 	 	***	 	 	$	2,784,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	N. Kansas City
	 	$	586,708	 	 	$	516,303	 	 	 	1.21	 	 	 	***	 	 	$	5,704,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Erwin
	 	$	382,673	 	 	$	336,752	 	 	 	1.21	 	 	 	***	 	 	$	3,720,000	 	 	 	***	 	 	 	***	 





***
Portions hereof have been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidential treatment in accordance with Rule 24b-2 of the Exchange Act.


 


I-1









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Allocated	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Loan %	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	“As-Is”	 	 	 	 	 	 	of	 	 	 	 
	No.	 	 	Name	 	Gross Revenue	 	 	As-Stabilized U/W	 	 	DSCR	 	 	Appraised Value	 	 	Allocated Loan	 	 	Value	 	 	UW Cap	 
	 	 	 	 	Bellingham
	 	$	2,242,500	 	 	$	1,973,400	 	 	 	1.21	 	 	 	***	 	 	$	21,744,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Yulee
	 	$	1,388,400	 	 	$	1,221,792	 	 	 	1.22	 	 	 	***	 	 	$	13,440,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Yaphank
	 	$	266,409	 	 	$	234,440	 	 	 	1.22	 	 	 	***	 	 	$	2,560,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Tampa
	 	$	571,473	 	 	$	502,896	 	 	 	1.24	 	 	 	***	 	 	$	5,440,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Charleston
	 	$	143,297	 	 	$	126,101	 	 	 	1.24	 	 	 	***	 	 	$	1,360,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Little Rock
	 	$	230,750	 	 	$	203,060	 	 	 	1.25	 	 	 	***	 	 	$	2,176,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Newtown
	 	$	322,500	 	 	$	283,800	 	 	 	1.25	 	 	 	***	 	 	$	3,040,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Lake City
	 	$	238,561	 	 	$	209,934	 	 	 	1.25	 	 	 	***	 	 	$	2,240,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Allentown
	 	$	311,250	 	 	$	273,900	 	 	 	1.26	 	 	 	***	 	 	$	2,900,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Tallmadge
	 	$	231,000	 	 	$	203,280	 	 	 	1.32	 	 	 	***	 	 	$	2,060,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Virginia Beach
	 	$	240,090	 	 	$	211,279	 	 	 	1.33	 	 	 	***	 	 	$	2,128,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Denville
	 	$	551,469	 	 	$	485,293	 	 	 	1.35	 	 	 	***	 	 	$	4,800,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Wausau
	 	$	151,590	 	 	$	133,399	 	 	 	1.36	 	 	 	***	 	 	$	1,312,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Tulsa
	 	$	358,750	 	 	$	315,700	 	 	 	1.36	 	 	 	***	 	 	$	3,104,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Lubbock
	 	$	143,442	 	 	$	126,229	 	 	 	1.36	 	 	 	***	 	 	$	1,240,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Sioux Falls
	 	$	201,015	 	 	$	176,893	 	 	 	1.38	 	 	 	***	 	 	$	1,720,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Houston
	 	$	473,475	 	 	$	416,658	 	 	 	1.38	 	 	 	***	 	 	$	4,041,900	 	 	 	***	 	 	 	***	 
	 	 	 	 	Shreveport
	 	$	264,200	 	 	$	232,496	 	 	 	1.38	 	 	 	***	 	 	$	2,251,800	 	 	 	***	 	 	 	***	 
	 	 	 	 	Harlingen
	 	$	174,200	 	 	$	153,296	 	 	 	1.38	 	 	 	***	 	 	$	1,482,300	 	 	 	***	 	 	 	***	 
	 	 	 	 	El Paso
	 	$	180,125	 	 	$	158,510	 	 	 	1.38	 	 	 	***	 	 	$	1,530,900	 	 	 	***	 	 	 	***	 
	 	 	 	 	Grand Rapids
	 	$	160,529	 	 	$	141,266	 	 	 	1.39	 	 	 	***	 	 	$	1,360,800	 	 	 	***	 	 	 	***	 
	 	 	 	 	Fargo
	 	$	272,619	 	 	$	239,905	 	 	 	1.41	 	 	 	***	 	 	$	2,280,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Maple Grove
	 	$	431,052	 	 	$	379,326	 	 	 	1.41	 	 	 	***	 	 	$	3,600,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	University Park
	 	$	1,909,500	 	 	$	1,680,360	 	 	 	1.41	 	 	 	***	 	 	$	15,936,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Midfield
	 	$	371,250	 	 	$	326,700	 	 	 	1.42	 	 	 	***	 	 	$	3,080,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Shelburne
	 	$	280,125	 	 	$	246,510	 	 	 	1.40	 	 	 	***	 	 	$	2,361,600	 	 	 	***	 	 	 	***	 
	 	 	 	 	Springfield
	 	$	221,405	 	 	$	194,836	 	 	 	1.40	 	 	 	***	 	 	$	1,861,400	 	 	 	***	 	 	 	***	 
	 	 	 	 	Elkhart
	 	$	411,750	 	 	$	362,340	 	 	 	1.40	 	 	 	***	 	 	$	3,460,400	 	 	 	***	 	 	 	***	 
	 	 	 	 	St. Paul (Eagan)
	 	$	237,096	 	 	$	208,644	 	 	 	1.44	 	 	 	***	 	 	$	1,944,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	Richmond
	 	$	335,960	 	 	$	295,645	 	 	 	1.50	 	 	 	***	 	 	$	2,644,792	 	 	 	***	 	 	 	***	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Total
	 	$	30,072,510	 	 	$	26,463,809	 	 	 	1.21	 	 	 	***	 	 	$	295,000,000	 	 	 	***	 	 	 	***	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	295,000,000	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	(0	)	 	 	 	 	 	 	 	 








	 	 	 
	***	 	Portions hereof have been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment in accordance with Rule 24b-2
of the Exchange Act.






 


I-2









 







SCHEDULE II



GEOGRAPHIC QUADRANTS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Address	 	Location Name	 	State	 	Country	 	Zip Code	 	Region	 
	306	 	4300 GEORGIA-PACIFIC BLVD
	 	FREDERICK (Baltimore),	 	MD	 	USA	 	21704	 	 	1	 
	303	 	419 Maple Street
	 	BELLINGHAM (Worcester),	 	MA	 	USA	 	02019	 	 	1	 
	307	 	LUGER ROAD
	 	DENVILLE,	 	NJ	 	USA	 	07834	 	 	1	 
	899	 	210 South Main Street
	 	NEWTOWN,	 	CT	 	USA	 	06470	 	 	1	 
	310	 	DABNEY & BETHLEHAM
	 	RICHMOND,	 	VA	 	USA	 	23230	 	 	1	 
	305	 	508 Warrant Ave
	 	PORTLAND,	 	ME	 	USA	 	04104	 	 	1	 
	308	 	YAPHANK AV & PARK ST, YAPHANK
	 	LONG ISLAND (Yaphank),	 	NY	 	USA	 	11980	 	 	1	 
	566	 	6980 SNOWDRIFT RD N.
	 	ALLENTOWN,	 	PA	 	USA	 	18106	 	 	1	 
	311	 	200 PRICE STREET, VIRGINIA BEACH
	 	NORFOLK (Virginia Beach),	 	VA	 	USA	 	23462	 	 	1	 
	304	 	Pine Haven Shore Road
	 	BURLINGTON,	 	VT	 	USA	 	 	 	 	1	 
	300	 	HUNKER RD & RT. 119, NEW STANTON
	 	PITTSBURG (New Stanton)	 	PA	 	USA	 	15672	 	 	1	 
	580	 	591 Gene Lasserre Blvd, Yulee
	 	JACKSONVILLE (Yulee),	 	FL	 	USA	 	32097	 	 	2	 
	606	 	200 HOSEA ROAD
	 	LAWRENCEVILLE,	 	GA	 	USA	 	30248	 	 	2	 
	309	 	1712 D Street, Butner
	 	RALEIGH (Butner),	 	NC	 	USA	 	27509	 	 	2	 
	626	 	1040 S INDUSTRIAL BLVD
	 	ERWIN (Bristol),	 	TN	 	USA	 	37650	 	 	2	 
	607	 	1523 Industrial Blvd
	 	MIDFIELD (Birmingham)	 	AL	 	USA	 	35228	 	 	2	 
	582	 	815 So 56th Street
	 	TAMPA,	 	FL	 	USA	 	33675	 	 	2	 
	584	 	3201 NW 110TH ST
	 	MIAMI	 	FL	 	USA	 	33168	 	 	2	 
	336	 	1820 BELLAMAH AVE NW
	 	ALBUQUERQUE,	 	NM	 	USA	 	87104	 	 	2	 
	581	 	4601 McCoy Drive
	 	PENSACOLA	 	FL	 	USA	 	32513	 	 	2	 
	829	 	Price Creek Road & Hwy 100
	 	LAKE CITY,	 	FL	 	USA	 	32025	 	 	2	 
	632	 	4287 PILOT DRIVE
	 	MEMPHIS,	 	TN	 	USA	 	38130	 	 	2	 
	647	 	331 28TH AVE NORTH
	 	NASHVILLE,	 	TN	 	USA	 	37202	 	 	2	 
	786	 	330 Parkside Drive
	 	CHARLOTTE,	 	NC	 	USA	 	28266	 	 	2	 
	330	 	2801 Valley View Drive
	 	SHREVEPORT,	 	LA	 	USA	 	71108	 	 	2	 
	583	 	4290 ATLANTA STREET
	 	CHARLESTON	 	SC	 	USA	 	29418	 	 	2	 
	592	 	555 GULF LINE ROAD, PEARL
	 	JACKSON (Pearl),	 	MS	 	USA	 	39288	 	 	2	 
	585	 	3101 Dugan Street
	 	LITTLE ROCK	 	AR	 	USA	 	72216	 	 	2	 
	312	 	2101 Dralle Road, University Park
	 	UNIVERSITY PARK (Chicago)	 	IL	 	USA	 	60466	 	 	3	 
	315	 	13860 Corp Woods Tr.
	 	ST. LOUIS (Bridgeton),	 	MO	 	USA	 	63044	 	 	3	 
	313	 	10347 Toebben Drive
	 	CINCINNATI (Union, KY),	 	OH	 	USA	 	41051	 	 	3	 
	314	 	6101 McKean, Ypsilanti
	 	DETROIT (Ypsilanti),	 	MI	 	USA	 	48197	 	 	3	 
	317	 	1727 WARREN STREET, NORTH KANSAS CITY
	 	KANSAS CITY,	 	MO	 	USA	 	64116	 	 	3	 
	642	 	225 Collins Rd
	 	ELKHART,	 	IN	 	USA	 	46515	 	 	3	 
	319	 	8175 JEFFERSON HWY, MAPLE GROVE
	 	MINNEAPOLIS (Maple Grove)	 	MN	 	USA	 	55369	 	 	3	 
	329	 	5717 North Mingo
	 	TULSA,	 	OK	 	USA	 	74117	 	 	3	 
	323	 	4501 N 4TH AVENUE
	 	SIOUX FALLS,	 	SD	 	USA	 	57104	 	 	3	 
	322	 	3941 15th Ave, North
	 	FARGO,	 	ND	 	USA	 	58105	 	 	3	 
	316	 	825 Buchanan Ave SW
	 	GRAND RAPIDS	 	MI	 	USA	 	49501	 	 	3	 
	320	 	5631 NE 17th
	 	DES MOINES,	 	IA	 	USA	 	50316	 	 	3	 
	321	 	2871 West Service Rd.
	 	ST. PAUL (Eagan),	 	MN	 	USA	 	55121	 	 	3	 
	563	 	809 South 62nd Avenue
	 	WAUSAU,	 	WI	 	USA	 	54401	 	 	3	 
	302	 	550 MUNROE FALLS RD OFF GILCHR
	 	AKRON (Tallmadge),	 	OH	 	USA	 	44278	 	 	3	 
	318	 	3220 E. Cherry Street
	 	SPRINGFIELD,	 	MO	 	USA	 	65808	 	 	3	 
	337	 	38811 Cherry St.
	 	FREMONT (Newark),	 	CA	 	USA	 	94560	 	 	4	 
	485	 	14750 Nelson Avenue
	 	LOS ANGELES (City of Industry)	 	CA	 	USA	 	91749	 	 	4	 
	743	 	360 INVERNESS DR SO, ENGLEWOOD
	 	DENVER (Englewood)	 	CO	 	USA	 	80111	 	 	4	 
	392	 	901 W 24th Street
	 	SAN DIEGO	 	CA	 	USA	 	91951	 	 	4	 
	395	 	12815 NE 178th Street
	 	SEATTLE,	 	WA	 	USA	 	98072	 	 	4	 
	333	 	3900 Uvalda Street
	 	DENVER,	 	CO	 	USA	 	80239	 	 	4	 
	339	 	1450 Citrus Avenue
	 	RIVERSIDE,	 	CA	 	USA	 	92507	 	 	4	 
	393	 	10515 SW ALLEN BLVD, BEAVERTON
	 	PORTLAND (Beaverton),	 	OR	 	USA	 	97005	 	 	4	 
	325	 	4747 MARK IV PKWY
	 	FORTH WORTH,	 	TX	 	USA	 	76106	 	 	4	 
	326	 	650 GELLHORN DRIVE
	 	HOUSTON	 	TX	 	USA	 	77229	 	 	4	 
	334	 	6990 Market Street
	 	EL PASO,	 	TX	 	USA	 	79915	 	 	4	 
	324	 	I/4 Mi. West Wilson Road
	 	HARLINGEN	 	TX	 	USA	 	78550	 	 	4	 
	328	 	535 N WW WHITE RD
	 	SAN ANTONIO	 	TX	 	USA	 	78219	 	 	4	 
	327	 	702 East 44th Street
	 	LUBBOCK	 	TX	 	USA	 	79404	 	 	4	 







 


II-1









 








SCHEDULE III



IMMEDIATE REPAIRS AND REMEDIATION




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	BRIEF DESCRIPTION OF ANY IMMEDIATE,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Total	 	 	Total Short	 	 	Total	 	 	Total	 	 	Uninflated	 	 	Inflated	 	 	Weighted	 	SHORT TERM OR RESERVE COSTS
	Project	 	Project	 	 	 	 	 	Date of	 	Date of	 	Immediate	 	 	Immediate	 	 	Term	 	 	Reserve	 	 	Square	 	 	Reserves	 	 	Reserves	 	 	PML	 	AND/OR ANY ADDITIONAL ENGINEERING
	Name	 	Address	 	City	 	State	 	Report	 	Inspection	 	Reserve	 	 	Costs	 	 	Costs	 	 	Costs	 	 	Feet	 	 	$/SF/Yr	 	 	$/SF/Yr	 	 	Value	 	STUDIES REQUIRED
	Akron
	 	550 Munroe Falls Rd	 	Tallmadge	 	OH	 	5/18/2006	 	5/9/2006	 	 	80,410	 	 	$	80,410	 	 	$	0	 	 	$	49,600	 	 	 	63,000	 	 	$	0.07	 	 	$	0.08	 	 	N/A	 	Roof replacement ($72,450); parking lot repair ($1,600); repair damaged wall panels on west and south warehouse and east wall of north shed ($6,360)
	Fargo
	 	3941 15th Avenue	 	Fargo	 	ND	 	5/31/2006	 	5/22/2006	 	 	32,250	 	 	$	32,250	 	 	$	21,400	 	 	$	50,200	 	 	 	83,100	 	 	$	0.05	 	 	$	0.06	 	 	N/A	 	Repair/replace damaged ceiling insulation ($20,000); replace exterior siding on east elevation of office area ($3,250); repair damaged concrete on loading dock near railroad spur ($1,500); repair chain link fence along the perimeter ($7,500)
	Pittsburgh
	 	Old Route 119 & Hunker Road	 	New Stanton	 	PA	 	6/1/2006	 	5/11/2006	 	 	51,788	 	 	$	51,788	 	 	$	0	 	 	$	32,860	 	 	 	63,154	 	 	$	0.04	 	 	$	0.05	 	 	N/A	 	Replace roof on the eastern portion of warehouse ($51,788)
	Miami
	 	3201 NW 110th Street	 	Miami	 	FL	 	6/1/2006	 	5/11/2006	 	 	74,000	 	 	$	74,000	 	 	$	0	 	 	$	187,250	 	 	 	103,870	 	 	$	0.15	 	 	$	0.16	 	 	N/A	 	West building roof was damaged during hurricane Wilma (work to be completed under 2006 capital plan) and parking needs repair ($58,000); exterior paint is faded and peeling, repainting required ($16,000)
	Lake City
	 	694 S.E. County Road 245	 	Lake City	 	FL	 	6/2/2006	 	5/26/2006	 	 	45,000	 	 	$	45,000	 	 	$	0	 	 	$	61,092	 	 	 	106,519	 	 	$	0.05	 	 	$	0.06	 	 	N/A	 	Replace roof on Building No. 2 ($45,000)
	Charleston
	 	4290 Atlanta Street	 	North Charleston	 	SC	 	6/5/2006	 	5/22/2006	 	 	40,000	 	 	$	40,000	 	 	$	0	 	 	$	28,200	 	 	 	41,580	 	 	$	0.06	 	 	$	0.07	 	 	N/A	 	Install adequate storm drainage
along railroad spur as required by local officials ($25,000); rake/clean expansion joints and install new sealant to prevent more cracking on concrete pavement ($10,000); sawcut areas of failed concrete pavement, remove and install new pavement ($3,750); replace missing gutters and downspouts ($1,250)
	TOTAL
	 	 	 	 	 	 	 	 	 	 	 	$	323,448	 	 	$	323,448	 	 	$	21,400	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	immediate repair escrow (125%)	 	$	404,310	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





 


III-1









 





SCHEDULE IV


SUBLEASES




1. 591 Gene Lasserre Boulevard, Yulee, FL — Lease Agreement between BlueLinx Corporation
(successor in interest to Georgia-Pacific Corporation), as Landlord, and Masonite Door Corporation
(successor in interest to Door Fabrication Services, Inc.), as Tenant, dated March 2, 1998 and
amended by:




	 	a)	 	First Lease Amendment dated April
 _____, 1999;

	 
	 	b)	 	Second Lease Amendment dated                     , 1999;

	 
	 	c)	 	Third Lease Amendment dated June 1, 2001;

	 
	 	d)	 	Fourth Lease Amendment dated May 21, 2002;

	 
	 	e)	 	Fifth Lease Amendment dated September 1, 2003; and

	 
	 	f)	 	Sixth Lease Amendment dated June 1, 2004.






2. 4300 Georgia Pacific Boulevard, Frederick, MD — Lease Agreement between BlueLinx
Corporation (successor in interest to Georgia-Pacific Corporation), as Landlord, and Masonite Door
Corporation (successor in interest to Door Fabrication Services, Inc.), as Tenant, dated March 2,
1998 and amended by:




	 	a)	 	First Lease Amendment dated August 1, 1999;

	 
	 	b)	 	Second Lease Amendment dated                     , 2000;

	 
	 	c)	 	Third Lease Amendment dated June 1, 2001; and

	 
	 	d)	 	Fourth Lease Amendment dated June 1, 2004.







 


IV-1









 







SCHEDULE V


INTENTIONALLY DELETED





 


V-1









 







SCHEDULE VI


LITIGATION SCHEDULE




1. Wickes Inc. v. Georgia Pacific Distribution Division (BlueLinx). The following language
was filed most recently in BlueLinx Holdings Inc.’s 10-Q for the three month period ended April 1,
2006, and also filed in BlueLinx Holdings Inc.’s Annual Report on Form 10-K for the year ended
December 31, 2005: “On November 19, 2004, we received a letter from Wickes Lumber, or Wickes,
asserting that approximately $16 million in payments received by the Distribution Division of
Georgia-Pacific Corporation during the 90-day period prior to Wickes’ January 20, 2004 Chapter 11
filing were preferential payments under section 547 of the United States Bankruptcy Code. On
October 14, 2005, Wickes Inc. filed a lawsuit in the United States Bankruptcy Court for the
Northern District of Illinois titled “Wickes Inc. v. Georgia Pacific Distribution Division
(BlueLinx),” (Bankruptcy Adversary Proceeding No. 05-2322) asserting its claim. On November 14,
2005, we filed our answer to the complaint denying liability. Although the ultimate outcome of this
matter cannot be determined with certainty, we believe Wickes’ assertion to be without merit and,
in any event, subject to one or more complete defenses, including, but not limited to, that the
payments were made and received in the ordinary course of business and were a substantially
contemporaneous exchange for new value given to Wickes. Accordingly, we have not recorded a reserve
with respect to the asserted claim.”



2. In re Oakwood Homes Corp;  OHC Liquidation Trust v. Georgia-Pacific Corporation.  This
is a lawsuit to avoid and recover $4,241,798.66 of preference-period payments from BlueLinx
Corporation.  The case was mediated in early May of 2006.  The trustee offered to settle the matter
by subtracting $250,000 from BlueLinx’ $270,000 reclamation claim against the Oakwood Homes
bankruptcy estate and to pay the $20,000 balance of the reclamation claim over to BlueLinx. 
BlueLinx declined this result, and the parties were unable to settle their differences.  The matter
is now scheduled for trial on September 9, 2006. 



3. In re Scott Acquisition Corp.; Official Creditors’ Committee v. BlueLinx Corporation. 
This is a lawsuit to avoid and recover $600,668.24 of preference-period payments from BlueLinx
Corporation.  The bankruptcy court has ordered that the matter be subject to mediation to be
completed by June 30, 2006, and the matter is otherwise set for trial on August 10, 2006.



4. BlueLinx Corporation v. Wachovia Bank NA. This a lawsuit against Wachovia filed on May
11, 2006 to recover $126,062.82 that Wachovia paid from the BlueLinx account against a check that
was evidently stolen and fraudulently modified.




 


VI-1









 







SCHEDULE VII



OUTPARCEL LEGAL DESCRIPTIONS




Frederick, MD: A Portion of that certain tract, piece or parcel of land lying and being situated in
Frederick County, Maryland and being more particularly described as follows:



Beginning at a point in the South line of Geoffrey Way, which point is 2348’ from the Northeast
intersection of Buckeystown Pike and Geoffrey Way;


Thence along the south line of said Geoffrey Way South 38 degrees 13 minutes 56 seconds East 327.89
feet to a point;



Thence South 02 degrees 58 minutes 05 seconds East 34.64 feet to a point;



Thence along a curve to the left with a radius of 60.00 feet, an arc distance of 168.09 feet, a
chord bearing of South 51 degrees 46 minutes 22 seconds East and a chord of 118.27 feet to a point;



Thence South 38 degrees 13 minutes 58 seconds East 320.64 feet to a point;



Thence leaving said road South 34 degrees 23 minutes 21 seconds West 575.15 feet to a point;



Thence North 63 degrees 25 minutes 07 seconds West 639.00 feet to a
point;


Thence North 26 degrees 24 minutes 43 seconds East 899.82 feet to the point and place of beginning,

containing 11.466 acres or 499,445 square feet, less and except rail extension of no more than
100,000 square feet.




University Park, IL: The south 800 feet, as measured along the east line thereof, of lot 2 less
and except the improved land thereof, and the following described part of lot 3 in the subdivision
of section 16, township 34 north, range 13 east of the third principal meridian, in Will county,
Illinois:




Beginning at the northwest corner of lot 3; thence east along and upon the north line of lot 3, for
a distance of 50.00 feet; thence southerly to a point on the west line of said lot 3, which line is
also the southeasterly right of way line of the railroad right of way, said point being 200.00 feet
southwesterly of the northwest corner of said lot 3; thence northeasterly along and upon said west
line, which is also said southeasterly right of way line, for a distance of 200.00 feet to the
point of beginning, in Will county, Illinois.



Maple Grove, MN: The South 417.30 feet of the East 710.00 feet, except the South 70.00 feet thereof
all in the Southeast Quarter of the Northeast Quarter of Section 24, Township 119, Range 22,
Hennepin County, Minnesota



Woodinville, WA: Parcel A — 12811 Northeast 178th Street, Tax ID: 726910-0047




Independence, KY: Beginning at an iron pin of the southern right of way of Toebben Road at the
terminus of the first course of D.B. 595, page 155 and running with property of Toebben LTD and
JJEMS INV. LLC South 05 degrees 19 minutes 41 seconds West for 600 feet; thence North 84 degrees 44
minutes 47 seconds West for 400 feet; thence North 05 degrees 19 minutes 41 seconds East for 600
feet to the south line of Toebben drive; thence South 85 degrees 29 minutes 18 seconds East to the
point of beginning.


 


VII-1









 





Newtown, CT: A certain piece or parcel of land situated on the easterly side of Route 25 in the
Town of Newtown, County of Fairfield and State of Connecticut, being a part of the land as shown
and designated on a certain map entitled “Map prepared for Georgia Pacific Corporation Conn. Route
25, Newtown, Connecticut, Scale 1“=60’ Dec. 14, 1976” by C James Osborne, Jr. RLS, Charles J.
Osborne Associates, New Milford, Connecticut. Said map being on file in the office of the Town
Clerk of the Town of Newtown as Map No. 4562. Also being part of the premises conveyed to Georgia
Pacific Corporation by The Homer C Godfrey Company in a deed recorded in Vol. 262 Page 708.



Beginning at a point marked by and existing marble monument, said point lying 16.17’ southwesterly
from the Southeast corner of the herein described parcel. Said point being on the northerly line of
the property of N/F Union Water Co., Inc. recorded in Deed Book 510 Page 35 & Deed Book 291 Page
641)Thence along said line the following courses and distances:




S37°12’13”W a distance of 235.24 feet;

S50°16’38”W a distance of 200.00 feet;

N62°43’22”W a distance of 35.00 feet;



S62°16’38”W a
distance of 57.07 feet to a point on the northeasterly side of Connecticut Route
25; said point marking the southwest corner of the herein described parcel. Thence turning and
running along said CT Route 25 the following courses:




N53°12’14”W a distance of 217.06 feet;

N62°07’18”W a distance of 64.21 feet;



Thence continuing along said CT Route 25 on a curve to the right having a radius of 2404.20 feet
and a length of 529.90 feet to a CHD monument;



Thence N52°59’31”E a distance of 8.82 feet:

Thence N64°08’54”E a distance of 139.54 feet to an existing chain link fence corner post;

Thence S79°20’06”E a distance of 109.56 feet to an existing chain link fence corner post;

Thence N67°28’00”E a distance of 428.76 feet to an existing chain link fence corner post;




Thence S79°23’20”E a distance of 181.07 feet to a point on the West line of the New York, New Haven
and Hartford Railroad (formerly Con-Rail) said point being the Northerly most corner of a 50’
Right of Way (0.763 acres) recorded in Book 147 Page 319 and shown on the above referenced map
being on file in the office of the Town Clerk of the Town of Newtown as Map No. 4562;



Thence along said railroad S23°55’28”E a distance of 152.52 feet;

Thence continuing along said railroad S30°14’51”E a distance of 254.65 feet;



Thence leaving said railroad S37°12’13”W a distance of 16.17 feet along the line of Union Water
Co., Inc. to an existing marble monument marking the point or place of beginning, containing
9.6 acres more or less.


 


VII-2









 





Ft Worth, TX: Being a tract of land situated in the D. ODUM SURVEY, ABSTRACT NO. 1184, City of Fort
Worth, Tarrant County, Texas and being a portion of those tracts of land (Tract One & Tract Two) as
described in Deed to Ballister Group, Inc. recorded in Volume 11577, Page 287 of the Deed Records
of Tarrant County, Texas and being more particularly described as follows:



BEGINNING at a 1/2” iron rod with a plastic cap found at the northwest corner of Site 1-Block 8, Mark
IV Industrial Park, an addition to the City of Fort Worth, Tarrant County, Texas as recorded in
Volume 388-79, Page 38 of the Plat Records of Tarrant County, Texas (Prtct);



THENCE South 89 degrees 58 minutes 34 seconds West, 464.68 feet, along the Southern right-of-way of
Great Southwest Parkway (60’ R/W), to a capped iron pin found, being the PRINCIPLE POINT OF
BEGINNING of herein described tract;



THENCE, South 00 degrees 01 minutes 31 seconds East, 506.27 feet, departing the South right-of-way
of Great Southwest Parkway, to a capped iron pin found;



THENCE, South 89 degrees 58 minutes 23 seconds West, 325.02 feet to a point;




THENCE, South 00 degrees 05 minutes 11 seconds East, 754.06 feet to a point in the Northern
right-of-way of a 53-foot wide Railroad Easement;



THENCE; North 90 degrees 00 minutes 00 seconds West, 830.83 feet, along said Railroad right-of-way
to a capped iron pin found;



THENCE; North 00 degrees 00 minutes 00 seconds East, 1260.00 feet, to a 1/2 inch pipe found in the
Southern right-of-way of Great Southwest Parkway;



THENCE; North 89 degrees 58 minutes 34 seconds East, 1154.49 feet to the PRINCIPLE POINT OF
BEGINNING, containing 27.789 acres more or less.



St Louis (Bridgeton), MO: The Northwest 400 feet measured along the Southwest line thereof; of Lot
17 of a line drawn parallel to the Northwest boundary line bearing N 52o 44’ 21” E of
the Hoechst Tract Subdivision according to the Plat thereof recorded in Plat book 341, Page 3 St.
Louis County, Missouri;




 


VII-3









 







SCHEDULE VIII


BORROWER TAXPAYER IDENTIFICATION NUMBERS




	 	 	 	 	 	 	 
	 	 	Entity	 	EIN	 
	1.	 	ABP AL (MIDFIELD) LLC
	 	 	77-0627356	 
	2.	 	ABP AR (LITTLE ROCK) LLC
	 	 	77-0627356	 
	3.	 	ABP CA (CITY OF INDUSTRY) LLC
	 	 	77-0627356	 
	4.	 	ABP CA (NATIONAL CITY) LLC
	 	 	77-0627356	 
	5.	 	ABP CA (NEWARK) LLC
	 	 	77-0627356	 
	6.	 	ABP CA (RIVERSIDE) LLC
	 	 	77-0627356	 
	7.	 	ABP CO I (DENVER) LLC
	 	 	77-0627356	 
	8.	 	ABP CO II (DENVER) LLC
	 	 	77-0627356	 
	9.	 	ABP CT (NEWTON) LLC
	 	 	36-4553871	 
	10.	 	ABP FL (LAKE CITY) LLC
	 	 	77-0627356	 
	11.	 	ABP FL (MIAMI) LLC
	 	 	77-0627356	 
	12.	 	ABP FL (PENSACOLA) LLC
	 	 	77-0627356	 
	13.	 	ABP FL (TAMPA) LLC
	 	 	77-0627356	 
	14.	 	ABP FL (YULEE) LLC
	 	 	77-0627356	 
	15.	 	ABP GA (LAWRENCEVILLE) LLC
	 	 	77-0627356	 
	16.	 	ABP IA (DES MOINES) LLC
	 	 	77-0627356	 
	17.	 	ABP IL (UNIVERSITY PARK) LLC
	 	 	77-0627356	 
	18.	 	ABP IN (ELKHART) LLC
	 	 	77-0627356	 
	19.	 	ABP KY (INDEPENDENCE) LLC
	 	 	77-0627356	 
	20.	 	ABP LA (SHREVEPORT) LLC
	 	 	30-0247739	 
	21.	 	ABP MA (BELLINGHAM) LLC
	 	 	77-0627356	 
	22.	 	ABP MD (BALTIMORE) LLC
	 	 	77-0627356	 
	23.	 	ABP ME (PORTLAND) LLC
	 	 	61-1470388	 
	24.	 	ABP MI (DETROIT) LLC
	 	 	77-0627356	 
	25.	 	ABP MI (GRAND RAPIDS) LLC
	 	 	77-0627356	 
	26.	 	ABP MN (EAGAN) LLC
	 	 	77-0627356	 








 


VIII-1











 




	 	 	 	 	 	 	 
	 	 	Entity	 	EIN	 
	27.	 	ABP MN (MAPLE GROVE) LLC
	 	 	77-0627356	 
	28.	 	ABP MO (BRIDGETON) LLC
	 	 	77-0627356	 
	29.	 	ABP MO (KANSAS CITY) LLC
	 	 	77-0627356	 
	30.	 	ABP MO (SPRINGFIELD) LLC
	 	 	77-0627356	 
	31.	 	ABP MS (PEARL) LLC
	 	 	77-0627356	 
	32.	 	ABP NC (BUTNER) LLC
	 	 	77-0627356	 
	33.	 	ABP NC (CHARLOTTE) LLC
	 	 	77-0627356	 
	34.	 	ABP ND (NORTH FARGO) LLC
	 	 	77-0634934	 
	35.	 	ABP NJ (DENVILLE) LLC
	 	 	77-0627356	 
	36.	 	ABP NM (ALBUQUERQUE) LLC
	 	 	77-0627356	 
	37.	 	ABP NY (YAPHANK) LLC
	 	 	77-0627356	 
	38.	 	ABP OH (TALMADGE) LLC
	 	 	77-0627356	 
	39.	 	ABP OK (TULSA) LLC
	 	 	77-0627356	 
	40.	 	ABP OR (BEAVERTON) LLC
	 	 	77-0627356	 
	41.	 	ABP PA (ALLENTOWN) LLC
	 	 	77-0627356	 
	42.	 	ABP PA (STANTON) LLC
	 	 	77-0627356	 
	43.	 	ABP SC (CHARLESTON) LLC
	 	 	77-0627356	 
	44.	 	ABP SD (SIOUX FALLS) LLC
	 	 	77-0627356	 
	45.	 	ABP TN (ERWIN) LLC
	 	 	77-0627356	 
	46.	 	ABP TN (MEMPHIS) LLC
	 	 	77-0627356	 
	47.	 	ABP TN (NASHVILLE) LLC
	 	 	77-0627356	 
	48.	 	ABP TX (EL PASO) LLC
	 	 	77-0627356	 
	49.	 	ABP TX (FORT WORTH) LLC
	 	 	77-0627356	 
	50.	 	ABP TX (HARLINGEN) LLC
	 	 	77-0627356	 
	51.	 	ABP TX (HOUSTON) LLC
	 	 	77-0627356	 
	52.	 	ABP TX (LUBBOCK) LLC
	 	 	77-0627356	 
	53.	 	ABP TX (SAN ANTONIO) LLC
	 	 	77-0627356	 
	54.	 	ABP VA (RICHMOND) LLC
	 	 	77-0627356	 
	55.	 	ABP VA (VIRGINIA BEACH) LLC
	 	 	77-0627356	 
	56.	 	ABP VT (SHELBURNE) LLC
	 	 	05-0602221	 
	57.	 	ABP WA (WOODINVILLE) LLC
	 	 	77-0627356	 
	58.	 	ABP WI (WAUSAU) LLC
	 	 	05-0602220	 
	59.	 	ABP MD (BALTIMORE) SUBSIDIARY LLC
	 	 	77-0627356	 







 


VIII-2