EXHIBIT 10.3

	
 


	
LOAN NO: 59039


	
SERVICING NO.: 3204104


	
MERS MIN NO: 8000101-0000001436-4


	
 


	






LOAN AGREEMENT


Dated as of June 22, 2005


Between


1334
YORK AVENUE L.P.,

as
Borrower


and


BANK OF AMERICA, N.A.,

as
Lender


	
 


	









	
 

	
 


	
Confidential Treatment Requested by BANA

	
BANA-Soth-00058












TABLE OF CONTENTS


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
Page


	
 

	
 

	
 

	
 

	
 


	
ARTICLE 1

	
DEFINITIONS; PRINCIPLES OF CONSTRUCTION

	
1


	
 

	
Section
 1.1.

	
 

	
Definitions

	
1


	
 

	
Section 1.2.

	
 

	
Principles of Construction

	
21


	
 

	
 

	
 

	
 

	
 


	
ARTICLE 2

	
GENERAL
 TERMS

	
21


	
 

	
Section
 2.1.

	
 

	
Loan Commitment; Disbursement to Borrower

	
21


	
 

	
Section 2.2.

	
 

	
Loan Payments

	
21


	
 

	
Section 2.3.

	
 

	
Late Payment Charge

	
23


	
 

	
Section 2.4.

	
 

	
Prepayment; Defeasance

	
23


	
 

	
Section 2.5.

	
 

	
Payments after Default

	
28


	
 

	
Section 2.6.

	
 

	
Usury Savings

	
29


	
 

	
 

	
 

	
 

	
 


	
ARTICLE 3 

	
CONDITIONS PRECEDENT

	
29


	
 

	
Section 3.1.

	
 

	
Representations and Warranties; Compliance with
 Conditions

	
29


	
 

	
Section 3.2.

	
 

	
Delivery of Loan Documents; Title Insurance;
 Reports; Leases

	
29


	
 

	
Section 3.3.

	
 

	
Related Documents

	
31


	
 

	
Section 3.4.

	
 

	
Organizational Documents

	
31


	
 

	
Section 3.5.

	
 

	
Opinions of Borrower’s Counsel

	
31


	
 

	
Section 3.6.

	
 

	
Annual Budget

	
31


	
 

	
Section 3.7.

	
 

	
Taxes and Other Charges

	
31


	
 

	
Section 3.8.

	
 

	
Completion of Proceedings

	
32


	
 

	
Section 3.9.

	
 

	
Payments

	
32


	
 

	
Section 3.10.

	
 

	
Transaction Costs

	
32


	
 

	
Section 3.11.

	
 

	
No Material Adverse Change

	
32


	
 

	
Section 3.12.

	
 

	
Leases and Rent Roll

	
32


	
 

	
Section 3.13.

	
 

	
Intentionally Omitted

	
33


	
 

	
Section 3.14.

	
 

	
Estoppel Certificates

	
33


	
 

	
Section 3.15.

	
 

	
Subordination and Attornment

	
33


	
 

	
Section 3.16.

	
 

	
Tax Lot

	
33


	
 

	
Section 3.17.

	
 

	
Physical Conditions Report

	
33


	
 

	
Section 3.18.

	
 

	
Management Agreement

	
33


	
 

	
Section 3.19.

	
 

	
Appraisal

	
33


	
 

	
Section
 3.20.

	
 

	
Financial Statements

	
33


	
 

	
Section 3.21.

	
 

	
Net Operating Income

	
33


	
 

	
Section 3.22.

	
 

	
Further
 Documents

	
33


	
 

	
 

	
 

	
 

	
 


	
ARTICLE 4 

	
REPRESENTATIONS AND WARRANTIES

	
34


	
 

	
Section
 4.1.

	
 

	
Organization

	
34


	
 

	
Section 4.2.

	
 

	
Status of Borrower

	
34


	
 

	
Section 4.3.

	
 

	
Validity of Documents

	
34


	
 

	
Section 4.4.

	
 

	
No Conflicts

	
35


	
 

	
Section 4.5.

	
 

	
Litigation

	
35


	
 

	
Section 4.6.

	
 

	
Agreements

	
35





-i-


	
 

	
 


	
Confidential Treatment Requested by BANA

	
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TABLE OF CONTENTS

(continued)


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
Page


	
 

	
 

	
 

	
 

	
 


	
 

	
Section
 4.7.

	
 

	
Solvency

	
35


	
 

	
Section
 4.8.

	
 

	
Full and Accurate
 Disclosure

	
36


	
 

	
Section
 4.9.

	
 

	
No
 Plan Assets

	
36


	
 

	
Section
 4.10.

	
 

	
Not a Foreign Person

	
36


	
 

	
Section
 4.11.

	
 

	
Enforceability

	
36


	
 

	
Section
 4.12.

	
 

	
Business Purposes

	
37


	
 

	
Section
 4.13.

	
 

	
Compliance

	
37


	
 

	
Section
 4.14.

	
 

	
Financial
 Information

	
37


	
 

	
Section
 4.15.

	
 

	
Condemnation

	
37


	
 

	
Section
 4.16.

	
 

	
Utilities and Public
 Access; Parking

	
38


	
 

	
Section
 4.17.

	
 

	
Separate
 Lots

	
38


	
 

	
Section
 4.18.

	
 

	
Assessments

	
38


	
 

	
Section
 4.19.

	
 

	
Insurance

	
38


	
 

	
Section
 4.20.

	
 

	
Use of Property

	
38


	
 

	
Section
 4.21.

	
 

	
Certificate of Occupancy;
 Licenses

	
38


	
 

	
Section
 4.22.

	
 

	
Flood Zone

	
39


	
 

	
Section
 4.23.

	
 

	
Physical Condition

	
39


	
 

	
Section
 4.24.

	
 

	
Boundaries

	
39


	
 

	
Section
 4.25.

	
 

	
Leases and Rent Roll

	
39


	
 

	
Section
 4.26.

	
 

	
Filing
 and Recording Taxes

	
40


	
 

	
Section
 4.27.

	
 

	
Management
 Agreement

	
40


	
 

	
Section
 4.28.

	
 

	
Illegal Activity

	
40


	
 

	
Section
 4.29.

	
 

	
Construction
 Expenses

	
41


	
 

	
Section
 4.30.

	
 

	
Personal Property

	
41


	
 

	
Section
 4.31.

	
 

	
Taxes

	
41


	
 

	
Section
 4.32.

	
 

	
Permitted Encumbrances

	
41


	
 

	
Section
 4.33.

	
 

	
Federal
 Reserve Regulations

	
41


	
 

	
Section
 4.34.

	
 

	
Investment Company Act

	
41


	
 

	
Section
 4.35.

	
 

	
Intentionally Omitted

	
41


	
 

	
Section
 4.36.

	
 

	
No
 Change in Facts or Circumstances; Disclosure

	
42


	
 

	
Section
 4.37.

	
 

	
Intellectual
 Property

	
42


	
 

	
Section
 4.38.

	
 

	
Survey

	
42


	
 

	
Section
 4.39.

	
 

	
Survival

	
42


	
 

	
Section
 4.40.

	
 

	
Embargoed
 Persons Act

	
42


	
 

	
Section
 4.41.

	
 

	
Patriot Act

	
43


	
 

	
 

	
 


	
ARTICLE
 5 

	
BORROWER
 COVENANTS

	
44


	
 

	
Section
 5.1.

	
 

	
Existence;
 Compliance with Legal Requirements

	
44


	
 

	
Section
 5.2.

	
 

	
Maintenance
 and Use of Property

	
44


	
 

	
Section
 5.3.

	
 

	
Waste

	
45


	
 

	
Section
 5.4.

	
 

	
Taxes and Other Charges

	
45


	
 

	
Section
 5.5.

	
 

	
Litigation

	
46


	
 

	
Section
 5.6.

	
 

	
Access
 to Property

	
46





-ii-


	
 

	
 


	
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 Requested by BANA

	
BANA-Soth-00060












TABLE OF CONTENTS

(continued)


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
Page


	
 

	
 

	
 

	
 

	
 


	
 

	
Section
 5.7.

	
 

	
Notice
 of Default

	
46


	
 

	
Section 5.8.

	
 

	
Cooperate in Legal
 Proceedings

	
46


	
 

	
Section 5.9.

	
 

	
Performance by Borrower

	
46


	
 

	
Section 5.10.

	
 

	
Awards; Insurance
 Proceeds

	
46


	
 

	
Section 5.11.

	
 

	
Financial Reporting

	
47


	
 

	
Section 5.12.

	
 

	
Estoppel Statement

	
51


	
 

	
Section
 5.13.

	
 

	
Leasing
 Matters

	
52


	
 

	
Section
 5.14. 

	
 

	
Property
 Management

	
56


	
 

	
Section 5.15. 

	
 

	
Liens

	
56


	
 

	
Section
 5.16.

	
 

	
Debt
 Cancellation

	
57


	
 

	
Section 5.17. 

	
 

	
Zoning

	
57


	
 

	
Section
 5.18.

	
 

	
ERISA

	
57


	
 

	
Section 5.19.

	
 

	
No Joint Assessment

	
57


	
 

	
Section
 5.20.

	
 

	
Intentionally
 Omitted

	
57


	
 

	
Section
 5.21.

	
 

	
Alterations

	
58


	
 

	
Section 5.22.

	
 

	
Intentionally Omitted

	
58


	
 

	
 

	
 

	
 

	
 


	
ARTICLE 6

	
ENTITY COVENANTS

	
58


	
 

	
Section
 6.1.

	
 

	
Single
 Purpose Entity/Separateness

	
58


	
 

	
Section 6.2.

	
 

	
Change of Name, Identity
 or Structure

	
62


	
 

	
Section
 6.3. 

	
 

	
Business
 and Operations

	
63


	
 

	
Section
 6.4.

	
 

	
Independent
 Director

	
63


	
 

	
 

	
 

	
 

	
 


	
ARTICLE
 7

	
NO
 SALE OR ENCUMBRANCE

	
63


	
 

	
Section
 7.1.

	
 

	
Transfer
 Definitions

	
63


	
 

	
Section 7.2.

	
 

	
No Sale/Encumbrance

	
64


	
 

	
Section 7.3.

	
 

	
Permitted Transfers

	
64


	
 

	
Section 7.4.

	
 

	
Lender’s Rights

	
65


	
 

	
Section 7.5.

	
 

	
Assumption

	
66


	
 

	
Section 7.6.

	
 

	
Mezzanine Option

	
68


	
 

	
 

	
 

	
 

	
 


	
ARTICLE 8

	
 

	
INSURANCE; CASUALTY;
 CONDEMNATION; RESTORATION

	
70


	
 

	
Section
 8.1.

	
 

	
Insurance

	
70


	
 

	
Section 8.2.

	
 

	
Casualty

	
73


	
 

	
Section
 8.3.

	
 

	
Condemnation

	
74


	
 

	
Section 8.4.

	
 

	
Restoration

	
74


	
 

	
 

	
 

	
 

	
 


	
ARTICLE
 9

	
RESERVE
 FUNDS

	
78


	
 

	
Section9.1.

	
 

	
Intentionally Omitted

	
78


	
 

	
Section
 9.2.

	
 

	
Replacements

	
78


	
 

	
Section 9.3.

	
 

	
Intentionally Omitted

	
79


	
 

	
Section
 9.4.

	
 

	
Required
 Work

	
79


	
 

	
Section 9.5.

	
 

	
Release of Replacement
 Reserve Funds

	
81


	
 

	
Section 9.6.

	
 

	
Tax and Insurance
 Reserve Funds

	
83





-iii-


	
 

	
 


	
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 Requested by BANA

	
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TABLE OF CONTENTS

(continued)


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
Page 


	
 

	
 

	
 

	
 

	
 


	
 

	
Section 9.7.

	
 

	
Debt Service Reserve

	
84


	
 

	
Section 9.8.

	
 

	
Operating Expenses;
 Extraordinary Expenses

	
85


	
 

	
Section
 9.9.

	
 

	
Reserve
 Funds Generally

	
85


	
 

	
 

	
 


	
ARTICLE
 10

	
CASH
 MANAGEMENT

	
88


	
 

	
Section
 10.1.

	
 

	
Cash
 Management Account

	
88


	
 

	
Section 10.2.

	
 

	
Deposits and Withdrawals

	
89


	
 

	
Section 10.3.

	
 

	
Security Interest

	
92


	
 

	
 

	
 

	
 

	
 


	
ARTICLE 11

	
EVENTS OF DEFAULT;
 REMEDIES

	
93


	
 

	
Section
 11.1.

	
 

	
Event
 of Default

	
93


	
 

	
Section
 11.2.

	
 

	
Remedies

	
95


	
 

	
 

	
 


	
ARTICLE
 12

	
ENVIRONMENTAL
 PROVISIONS

	
96


	
 

	
Section 12.1.

	
 

	
Environmental
 Representations and Warranties

	
96


	
 

	
Section
 12.2.

	
 

	
Environmental
 Covenants

	
96


	
 

	
Section
 12.3.

	
 

	
Lender’s
 Rights

	
97


	
 

	
Section 12.4.

	
 

	
Operations and
 Maintenance Programs

	
97


	
 

	
Section
 12.5.

	
 

	
Environmental
 Definitions

	
98


	
 

	
Section
 12.6.

	
 

	
Indemnification

	
98


	
 

	
 

	
 


	
ARTICLE
 13

	
SECONDARY
 MARKET

	
100


	
 

	
Section
 13.1.

	
 

	
Transfer
 of Loan

	
100


	
 

	
Section
 13.2.

	
 

	
Delegation
 of Servicing

	
100


	
 

	
Section
 13.3.

	
 

	
Dissemination
 of Information

	
100


	
 

	
Section
 13.4.

	
 

	
Cooperation

	
100


	
 

	
Section
 13.5.

	
 

	
Securitization
 Indemnification

	
102


	
 

	
Section
 13.6.

	
 

	
Private
 Rating

	
105


	
 

	
Section 13.7.

	
 

	
Servicer

	
105


	
 

	
 

	
 


	
ARTICLE 14

	
INDEMNIFICATIONS

	
106


	
 

	
Section 14.1.

	
 

	
General Indemnification

	
106


	
 

	
Section 14.2.

	
 

	
Mortgage and Intangible
 Tax Indemnification

	
106


	
 

	
Section 14.3.

	
 

	
ERISA Indemnification

	
106


	
 

	
Section 14.4.

	
 

	
Survival

	
107


	
 

	
 

	
 


	
ARTICLE
 15

	
EXCULPATION

	
107


	
 

	
Section 15.1.

	
 

	
Exculpation

	
107


	
 

	
 

	
 


	
ARTICLE
 16

	
NOTICES

	
109


	
 

	
Section
 16.1.

	
 

	
Notices

	
109


	
 

	
 

	
 


	
ARTICLE
 17

	
FURTHER
 ASSURANCES

	
110


	
 

	
Section 17.1.

	
 

	
Replacement Documents

	
110





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TABLE OF CONTENTS

(continued)


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
Page


	
 

	
 

	
 

	
 

	
 


	
 

	
Section
 17.2.

	
 

	
Recording
 of Mortgage, Etc

	
111


	
 

	
Section
 17.3.

	
 

	
Further Acts, Etc

	
111


	
 

	
Section
 17.4.

	
 

	
Changes
 in Tax, Debt, Credit and Documentary Stamp Laws

	
111


	
 

	
Section
 17.5.

	
 

	
Expenses

	
112


	
 

	
 

	
 


	
ARTICLE 18 

	
WAIVERS

	
113


	
 

	
Section
 18.1.

	
 

	
Remedies
 Cumulative; Waivers

	
113


	
 

	
Section
 18.2.

	
 

	
Modification, Waiver in
 Writing

	
113


	
 

	
Section
 18.3.

	
 

	
Delay Not a Waiver

	
113


	
 

	
Section
 18.4.

	
 

	
Trial by Jury

	
114


	
 

	
Section
 18.5.

	
 

	
Waiver of Notice

	
114


	
 

	
Section
 18.6.

	
 

	
Remedies of Borrower

	
114


	
 

	
Section
 18.7.

	
 

	
Waiver of Marshalling of
 Assets

	
115


	
 

	
Section
 18.8.

	
 

	
Intentionally Omitted

	
115


	
 

	
Section
 18.9.

	
 

	
Waiver
 of Counterclaim

	
115


	
 

	
 

	
 


	
ARTICLE
 19

	
GOVERNING
 LAW

	
116


	
 

	
Section
 19.1.

	
 

	
Choice
 of Law

	
116


	
 

	
Section
 19.2.

	
 

	
Severability

	
116


	
 

	
Section
 19.3.

	
 

	
Preferences

	
116


	
 

	
 

	
 


	
ARTICLE
 20 

	
MISCELLANEOUS

	
116


	
 

	
Section
 20.1.

	
 

	
Survival

	
116


	
 

	
Section
 20.2.

	
 

	
Lender’s Discretion

	
117


	
 

	
Section
 20.3.

	
 

	
Headings

	
117


	
 

	
Section
 20.4.

	
 

	
Cost of Enforcement

	
117


	
 

	
Section
 20.5.

	
 

	
Schedules
 Incorporated

	
117


	
 

	
Section
 20.6.

	
 

	
No
 Joint Venture or Partnership; No Third Party Beneficiaries

	
117


	
 

	
Section
 20.7.

	
 

	
Publicity

	
118


	
 

	
Section
 20.8.

	
 

	
Conflict;
 Construction of Documents; Reliance

	
119


	
 

	
Section
 20.9.

	
 

	
Entire Agreement

	
119


	
 

	
Section
 20.10.

	
 

	
Liability

	
119


	
 

	
Section
 20.11.

	
 

	
Satisfaction of
 Indebtedness

	
119


	
 

	
Section
 20.12.

	
 

	
Inconsistencies With Sotheby’s Lease

	
120





-v-


	
 

	
 


	
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LOAN
AGREEMENT


          THIS
LOAN AGREEMENT, dated as of June 22, 2005 (as amended, restated, replaced, supplemented or
otherwise modified from time to time, this “Agreement”),
between BANK OF AMERICA,
N.A., a
national banking association, having an address at 214 North Tyron Street, Charlotte, North
Carolina 28255 (together with its successors and/or assigns, “Lender”) and 1334 YORK AVENUE L.P., a Delaware
limited partnership, having an
address at c/o RFR Holding LLC, 400 Park
Avenue, New York, New York 10022 (together with its successors and/or assigns, “Borrower”).


RECITALS:


          Borrower
desires to obtain the Loan (defined below) from Lender.


          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 (defined below).


          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:


ARTICLE
1 

DEFINITIONS; PRINCIPLES OF CONSTRUCTION


          Section
1.1. Definitions


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


          “Acceptable Accountant” shall
mean a
“Big Four” accounting firm or other independent certified public
accountant acceptable to Lender. Berdon LLP is acceptable to Lender as of the date hereof.


          “Acquired Property” shall have
the meaning
set forth in Section 5.11(c)(i)(A) hereof.


          “Acquired Property Statements”
shall
have the meaning set forth in Section 5.11(c)(i)(A) hereof.


          “Act” shall have the meaning set
forth in Section 6.1(c).


          “Additional Replacement” shall
have
the meaning set forth in Section 9.5(g) hereof.


          “Affiliate” shall mean, as to any
Person, any other Person that, directly or indirectly, is in control of, is
controlled by or is under common control with such Person or is a director or officer of such Person
or of an Affiliate of such Person.


          “Affiliated Loans” shall mean a
loan
made by Lender to a parent, subsidiary or such other entity affiliated with Borrower or Borrower Principal.


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          “Affiliated
Manager” shall have the meaning set forth in Section 7.1 hereof.


          “Aggregate
Debt Service” shall mean the sum of (a) Debt Service for a given
period, plus
(b) the hypothetical amount of principal and interest payable during such
period on an amount
equal to the proposed amount of the Permitted Mezzanine Financing based on
level combined payments of
principal and interest based on a thirty (30) year amortization schedule and an interest rate equal to (i) if the
Permitted Mezzanine Financing bears interest at a fixed rate of interest, the interest rate of the Permitted
Mezzanine Financing identified in the Mezzanine Notice, or (ii) if the Permitted Mezzanine Financing bears interest at
a floating rate of interest, an interest
rate equal to the strike rate set forth in the Interest Rate Cap Agreement plus
the Mezzanine Spread.


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


          “Alteration
Threshold” means $750,000.00.


          “Annex” shall have the meaning
set forth in Section 4.41 hereof.


          “Annual
Budget” shall
mean the operating budget, including all planned capital expenditures, for the Property approved by Lender
in accordance with Section 5.11(a)(iv) hereof for the applicable calendar year
or other period.


          “Appraisal” shall mean a current
“as-is” appraisal prepared in accordance with the requirements of FIRREA
by an independent third-party appraiser holding an MAI designation, which appraiser is
licensed under the laws of the State of New York, meets the requirements of FIRREA and is otherwise
satisfactory to Lender.


          “Approved
Bank” shall mean (a) a bank or other financial institution which has the
Required Rating, (b) if a Securitization has not occurred, a bank or other
financial institution reasonably acceptable to Lender or (c) if a
Securitization has occurred, a bank or other financial institution which the
Rating Agencies have confirmed in writing will not, in and of itself, result in
a downgrade, withdrawal or qualification of the then current ratings assigned
in connection with such Securitization.


          “Assignment
of Management Agreement” shall mean that certain Assignment and Subordination of
Management Agreement and Consent of Manager dated the date hereof among Lender, Borrower and
Manager, as the same may be amended, restated, replaced, supplemented or
otherwise modified from time to time.


          “Award” shall mean any
compensation paid by any
Governmental Authority in connection with a
Condemnation in respect of all or any part of the Property.


          “Borrower
Principal” shall
mean individually and collectively, as the context may require, Aby Rosen, an individual, and Michael Fuchs, an individual, on
a joint and several basis.


          “Borrower
Principal Family Group” shall mean any Borrower Principal, any Borrower Principal’s immediate family members, trusts
formed for the benefit of such immediate family


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members
and limited partnerships wholly owned and controlled by such immediate family members.


          “Business
Day” shall mean a day on which Lender is open for the conduct of substantially all of
its banking business at its office in the city in which the Note is payable (excluding Saturdays
and Sundays).


          “Cash
Management Bank” shall have the meaning set forth in Section 10.1
hereof.


          “Cash
Management Account” shall have the meaning set forth in Section 10.1 hereof.



          “Casualty” shall have the meaning
set forth in Section 8.2. 


          “Closing
Date” shall mean the date of the funding of the Loan. 


          “Control” shall have the meaning
set forth in Section 7.1 hereof.


          “Condemnation” shall mean a
temporary
or permanent taking by any Governmental Authority as the result, 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.


          “Condemnation
Proceeds” shall have the meaning set forth in Section 8.4(b)


          “Creditors
Rights Laws” shall mean with respect to any Person any existing or
future law
of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, conservatorship, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to its debts
or debtors.


          “Debt” shall mean the
outstanding principal amount set forth in, and evidenced by, this Agreement and the Note
together with all interest accrued and unpaid thereon and all other sums due to Lender in respect
of the Loan under the Note, this Agreement, the Mortgage or any other Loan Document.


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


          “Debt
Service Coverage Ratio” shall mean the ratio, as determined by Lender,
of (a) Net
Operating Income for the preceding 12 month period to (b) Aggregate Debt
Service for the same period, calculated by Lender as of the first Scheduled Payment
Date following Lender’s receipt of the Mezzanine Notice.


          “Debt
Service Reserve Account” shall have the meaning set forth in Section 9.7
hereof. 


          “Debt
Service Reserve Event” shall have the meaning set forth in Section 9.7
hereof. 


          “Debt
Service Reserve Funds” shall have the meaning set forth in Section 9.7
hereof.


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          “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 mean, with respect to the Loan, a rate per annum equal to the
lesser of
(a) the maximum rate permitted by applicable law, or (b) four percent (4%)
above the Note Rate.


          “Defeasance
Collateral” shall
have the meaning set forth in Section 2.4(b)(i)(D)(2) hereof.


          “Defeasance
Security Agreement” shall have the meaning set forth in Section 2.4(b)(i)(D)(2) hereof.


          “Disclosure
Document” shall have the meaning set forth in Section 13.5
hereof.


          “Eligible
Account” shall mean a separate and identifiable account from all
other funds held by the holding institution that is either (a) an account or
accounts maintained with a federal or state chartered depository institution or
trust company which complies with the definition of Eligible Institution or
(b) a segregated trust account or accounts maintained with a federal or state chartered
depository institution or trust company acting in its fiduciary capacity which,
in the case
of a state chartered depository institution or trust company, is subject to
regulations substantially similar to 12 C.F.R. §9.10(b), having in either case
a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal and state authority. An Eligible Account will
not be evidenced by a certificate of deposit, passbook or other instrument.


          “Eligible
Institution” shall mean Bank of America, N.A. or a depository
institution or trust company insured by the Federal Deposit Insurance Corporation, the
short term unsecured debt obligations or commercial paper of which are rated at least “A-1+”
by S&P, “P-l” by Moody’s and “F-1+” by Fitch in the case of accounts in which funds are held
for thirty (30) days or less
(or, in the case of accounts in which funds are held for more than thirty (30)
days, the long term unsecured debt obligations of which are rated at least “AA”
by Fitch and S&P and “Aa2” by Moody’s).


          “Eligibility
Requirements” shall mean, with respect to any Person, that such Person
(i) has
total assets (in name or under management) in excess of $600,000,000 and
(except with respect to a pension advisory firm or similar fiduciary)
capital/statutory surplus or shareholder’s equity of $250,000,000 and (ii) is regularly engaged in the business of
making or owning commercial real estate
loans or operating commercial mortgage properties.


          “Embargoed
Person” shall have the meaning set forth in Section 4.40 hereof. 


          “Environmental
Law” shall have the meaning set forth in Section 12.5 hereof. 


          “Environmental
Liens” shall have the meaning set forth in Section 12.5 hereof.


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Confidential Treatment Requested by BANA

	
BANA-Soth-00067












          “Environmental
Report” shall mean that certain Phase I Environmental Site Assessment prepared by
Environmental Monitoring & Consulting Associates dated May 18, 2005.


          “Equity
Collateral” shall
mean the 100% direct or indirect equity ownership interest held by Mezzanine
Borrower in Borrower (other than any equity interest in Borrower held by any SPE Component Entity).


          “ERISA” shall mean the Employee
Retirement Income
Security Act of 1974, as amended from time
to time and any successor statutes thereto and applicable regulations issued
pursuant thereto in temporary or final form.


          “Event
of Default” shall have the meaning set forth in Section 11.1
hereof. 


          “Excess
Cash Flow” shall have the meaning set forth in Section 10.2(b)(ii)(I)
hereof. 


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


          “Exchange
Act Filing” shall have the meaning set forth in Section 5.1l(c)
hereof.


          “Extraordinary
Expense Reserve Account” shall have the meaning set forth in Section
9.8(b).


          “Extraordinary
Expense Reserve Funds” shall have the meaning set forth in Section 9.8(b).


          “Extraordinary
Expenses” shall mean an operating expense or capital expenditure
with respect
to the Property that (i) is not set forth on the Annual Budget and (ii) is not
subject to payment
by withdrawals from the Replacement Reserve Account. Borrower shall deliver promptly to Lender a
reasonably detailed explanation of such proposed Extraordinary Expense for the approval of
Lender.


          “Fee
Mortgagee” shall have the meaning set forth in the Sotheby’s Lease
and shall be deemed to refer to Lender in accordance with the applicable terms
and conditions thereof.


          “Fitch” shall mean Fitch,
Inc.


          “GAAP” shall mean generally
accepted accounting principles in the United States of America as of the date
of the applicable financial report.


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


          “Hazardous
Materials” shall have the meaning set forth in Section 12.5
hereof. 


          “Improvements” shall have the
meaning
set forth in the granting clause of the Mortgage.


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Confidential Treatment Requested by BANA

	
BANA-Soth-00068












          “Indemnified
Parties” shall mean (a) Lender, (b) any prior owner or
holder of the Loan or Participations in the Loan, (c) any servicer or prior
servicer of the Loan, (d) any Investor or any prior Investor in any Securities,
(e) any trustees, custodians or other fiduciaries who hold or who have held a
full or partial interest in the Loan for the benefit of any Investor or other
third party, (f) any receiver or other fiduciary appointed in a foreclosure or
other Creditors Rights Laws proceeding, (g) any officers, directors,
shareholders, partners, members, employees, agents, servants, representatives,
affiliates or subsidiaries of any and all of the foregoing, and (h) the heirs,
legal representatives, successors and assigns of any and all of the foregoing
(including, without limitation, any successors by merger, consolidation or
acquisition of all or a substantial portion of the Indemnified Parties’ assets
and business), in all cases whether during the term of the Loan or as part of
or following a foreclosure of the Mortgage.


          
“Independent Director” shall have the meaning set
forth in Section 6.4(a).


          
“Initial Note Rate” shall mean, with respect to Note
A, the Initial Note A Rate, and, with respect to Note B, the Initial Note B
Rate.


          
“Initial Note A Rate” shall mean an interest rate
equal to 5.209619047619050% per annum.


          
“Initial Note B Rate” shall mean an interest rate
equal to 7.770% per annum.


          
“Insurance Premiums” shall have the meaning set forth
in Section 8.1(b) hereof.


          
“Insurance Proceeds” shall have the meaning set forth
in Section 8.4(b) hereof.


          
“Interest Rate Cap Agreement” shall mean an interest
rate cap agreement which (i) is purchased and maintained by Mezzanine Borrower;
(ii) is provided by a counterparty reasonably acceptable to Lender and
acceptable to the Rating Agencies; (iii) is written on the then current
standard ISDA documentation and otherwise contains terms and conditions
reasonably acceptable to Lender and acceptable to the Rating Agencies; (iv) is
co-terminus with the Permitted Mezzanine Financing (including all extensions
thereof); (v) is for a notional amount equal to the amount of the Permitted
Mezzanine Financing; and (vi) provides for a strike rate equal to (or less
than) the interest rate that, when added to the Mezzanine Spread, results in a
Debt Service Coverage Ratio, calculated on a trailing 12-month basis, of 1.25
to 1.00.


          
“Internal Revenue 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.


          
“Investor” shall have the meaning set forth in Section
13.3 hereof.


          “I/O Monthly Payment Amount”
shall have the
meaning set forth in Section 2.2(b) hereof.


          
“Issuer Group” shall have the meaning set forth in
Section 13.5(b) hereof.


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Confidential Treatment Requested by BANA

	
BANA-Soth-00069












          “Issuer
Person” shall have the meaning set forth in Section
13.5(b) hereof.


          “Lease”
shall have the meaning set forth in the Mortgage.


          “Legal
Requirements” shall mean all statutes, laws, rules, orders,
regulations, ordinances, judgments, decrees and injunctions of Governmental
Authorities affecting the Property or any part thereof, or the construction,
use, alteration or operation thereof, whether now or hereafter enacted and in
force, and all permits, licenses, authorizations and regulations relating
thereto, and all covenants, agreements, restrictions and encumbrances contained
in any instruments, either of record or known to Borrower, at any time in force
affecting the Property or any part thereof, including, without limitation, any
which may (a) require repairs, modifications or alterations in or to the
Property or any part thereof, or (b) in any way limit the use and enjoyment
thereof.


          “Letter
of Credit” shall mean an irrevocable, auto-renewing,
unconditional, transferable, clean sight draft letter of credit having an
initial term of not less than one (1) year and with automatic renewals for one
(1) year periods (unless the obligation being secured by, or otherwise
requiring the delivery of, such letter of credit is required to be performed at
least thirty (30) days prior to the initial expiry date of such letter of
credit), for which Borrower shall have no reimbursement obligation and which
reimbursement obligation is not secured by the Property or any other property
pledged to secure the Note, in favor of Lender and entitling Lender to draw
thereon in New York, New York, based solely on a statement that Lender has the
right to draw thereon executed by an officer or authorized signatory of Lender.
A Letter of Credit satisfying all of the requirements set forth in the
preceding sentence must be 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) if such Letter of Credit is due to expire prior to the completion
of the work for which such Letter of Credit was delivered or termination of the
event or events which gave rise to the requirement that Borrower deliver such
Letter of Credit to Lender, Lender shall have the right 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
satisfying the requirements set forth in the first sentence hereof 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, within thirty
(30) days prior to the expiration date of said Letter of Credit.


          “Lien”
shall mean any mortgage, deed of trust, lien, pledge,
hypothecation, assignment, security interest, or any other encumbrance, charge
or transfer of, on or affecting Borrower, 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 mechanic’s, materialmen’s and other similar liens and encumbrances.


          “LLC
Agreement” shall have the meaning set forth in Section
6.1(c).


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


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Confidential Treatment Requested by BANA

	
BANA-Soth-00070












          “Loan
Documents” shall
mean, collectively, this Agreement, the Note, the Mortgage, the Assignment of
Management Agreement and any and all other documents, agreements and
certificates executed and/or delivered in connection with the Loan, as the same
may be amended, restated, replaced, supplemented or otherwise modified from
time to time.


          “Lockout
Period” shall
mean the period commencing on the date hereof and ending on the date that is
three (3) months prior to the Optional Prepayment Date.


          “Losses” shall mean any and all
claims, suits,
liabilities (including, without limitation, strict liabilities), actions,
proceedings, obligations, debts, damages, losses, costs, expenses, fines,
penalties, charges, fees, judgments, awards, amounts paid in settlement of
whatever kind or nature (including but not limited to legal fees and other
costs of defense).


          “LTV”
shall mean the ratio,
expressed as a percentage, of (a) the sum of (i) the outstanding principal
amount of the Loan at the time the LTV is calculated plus (ii) the proposed
principal amount of the Permitted Mezzanine Financing, to (b) the appraised
value of the Property based on an updated Appraisal obtained by Lender at
Borrower’s cost and expense.


          “Major
Lease” shall mean
as to the Property (i) any Lease which, individually or when aggregated with
all other leases at the Property with the same Tenant or its Affiliate, either
accounts for ten percent (10%) or more of the Property’s aggregate Net
Operating Income or gross leaseable area, (ii) any Lease which contains any
option, offer, right of first refusal or other similar entitlement to acquire
all or any portion of the Property, or (iii) any instrument guaranteeing or
providing credit support for any Lease meeting the requirements of (i) or (ii)
above.


          “Major
Sotheby’s Sublease” shall
mean as to the Property (i) any sublease of the Sotheby’s Lease with respect to
which Lender has entered into a non-disturbance or similar agreement with the
subtenant thereunder, or (ii) any instrument guaranteeing or providing credit
support for any sublease of the Sotheby’s Lease meeting the requirements of
clause (i) above.


          “Management
Agreement” shall
mean the management agreement entered into by and between Borrower and Manager,
pursuant to which Manager is to provide management and other services with
respect to the Property, as the same may be amended, restated, replaced,
supplemented or otherwise modified in accordance with the terms of this
Agreement.


          “Manager”
shall mean RFR Realty
LLC or such other entity selected as the manager of the Property in accordance
with the terms of this Agreement.


          “Maturity
Date” shall mean
July 1, 2035.


          “Maximum
Legal Rate” shall
mean the maximum nonusurious 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 Note 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.


          “Member”
shall have the
meaning set forth in Section 6.1(c).


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Confidential Treatment Requested by BANA

	
BANA-Soth-00071












          “Mezzanine
Borrower” shall mean the constituent party of the
Borrower that is the obligor under the Permitted Mezzanine Financing; provided,
however, in no event shall the Mezzanine Borrower be any SPE Component Entity.


          
“Mezzanine Foreclosure” shall have the meaning set
forth in the definition of the term “Mezzanine Transfer”.


          
“Mezzanine Intercreditor” shall have the meaning set
forth in Section 7.6(g).


          “Mezzanine
Notice” shall have the meaning set forth in Section 7.6.


          
“Mezzanine Spread” shall mean, if the Permitted
Mezzanine Financing shall bear interest at a floating rate of interest, an
amount equal to (i) the interest rate of the Permitted Mezzanine Financing at
the closing date thereof less (ii) the then current one month LIBOR rate or the
then current rate provided by any other similar index or interest rate
convention used by Mezzanine Lender to calculate the interest rate under the
Permitted Mezzanine Financing.


          
“Mezzanine Transfer” shall mean each of (i) the pledge
of the Equity Collateral to Mezzanine Lender in connection with the Permitted
Mezzanine Financing and (ii) the transfer of the Equity Collateral by Mezzanine
Borrower to Mezzanine Lender in connection with the exercise of Mezzanine
Lender’s rights under the Permitted Mezzanine Financing, provided, that, such
transfer is made in accordance with the applicable terms and conditions of the
Mezzanine Intercreditor (such event, the “Mezzanine
Foreclosure”).


          
“Monthly Payment Amount” shall mean the monthly
payment of interest and principal due on each Scheduled Payment Date as set
forth in Section 2.2(b) hereof.


          
“Moody’s” shall mean Moody’s Investor Services, Inc.


          
“Mortgage” shall mean that certain first priority
Mortgage and Agreement of Consolidation and Modification of Mortgage,
Assignment of Leases and Rents, and Security Agreement dated the date hereof,
executed and delivered by Borrower as security for the Loan and encumbering the
Property, as the same may be amended, restated, replaced, supplemented or
otherwise modified from time to time.


          
“Mortgagor Portions” shall have the meaning set forth
in Section 13.5(b).


          “Mortgagor
Information” shall have the meaning set forth in Section
13.5(c).


          “Net
Operating Income” shall mean, with respect to any period
of time, the amount obtained by subtracting Operating Expenses from Operating
Income, as such amount may be adjusted by Lender in its good faith discretion
based on Lender’s underwriting standards for loans which are consummated by
Lender for the purpose of including the same in any Securitization, including
without limitation, adjustments for vacancy allowance.


          “Net
Proceeds” shall have the meaning set forth in Section
8.4(b) hereof.


          “Net
Proceeds Deficiency” shall have the meaning set forth in
Section 8.4(b)(vi) hereof.


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Confidential Treatment Requested by BANA

	
BANA-Soth-00072












          “Net
Worth Statement” shall mean a certification executed by
Borrower Principal and addressed to Lender certifying that Borrower Principal’s
net worth equals or exceeds $100,000,000 (or, if any lesser amount, setting
forth such lesser amount).


          “Non-Consolidation
Opinion” shall mean that certain substantive
non-consolidation opinion given by Edwards & Angell, LLP in connection
herewith and dated as of the date hereof, as the same may be amended, restated,
supplemented or modified after the date hereof.


          “Note”
shall mean that certain Consolidated, Amended and Restated
Promissory Note of even date herewith in the principal amount of
$235,000,000.00 made by Borrower in favor of Lender, as severed pursuant to
that certain Note Severance and Modification Agreement dated as of the date
hereof pursuant to which such consolidated note was severed and split into the
following replacements notes: (i) Replacement Note A original principal amount
of $210,000,000.00, made by Borrower in favor of Lender (“Note A”), and (ii) Replacement Note B in
the original principal amount of $25,000,000.00 (“Note B”), made by Borrower in favor of Lender, as each of the
same may be assigned, amended, restated, replaced, extended, renewed,
supplemented, severed, split, or otherwise modified from time to time in
accordance with the terms and provisions hereof. References to the “Note” in
this Agreement shall refer to Note A and Note B collectively.  


          “Note
A” shall have the meaning set forth in the definition of
the term “Note”.


          “Note B” shall have the meaning set forth in the definition of
the term “Note”.  




          “Note
Rate” shall mean (a) prior to the Optional Prepayment
Date, the Initial Note Rate, and (b) from and after the Optional Prepayment Date,
the Revised Note Rate.  




          “OFAC”
shall have the meaning set forth in Section 4.41 hereof.


          “Offering
Document Date” shall have the meaning set forth in
Section 5.11(c)(i)(D) hereof.


          “Operating
Expense Reserve Account” shall have the meaning set forth
in Section 9.8(a).


          “Operating
Expense Reserve Funds” shall have the meaning set forth
in Section 9.8(a).


          “Operating
Expenses” shall mean, with respect to any period of time,
the total of all expenses actually paid or payable, computed in accordance with
GAAP, of whatever kind relating to the operation, maintenance and management of
the Property, including without limitation, utilities, ordinary repairs and
maintenance, Insurance Premiums (the cost of which shall, solely for the
purposes of this definition and only for so long as the Sotheby’s Lease is in
full force and effect, be deemed to exclude any Insurance Premiums required to
be paid by Borrower hereunder beyond those Insurance Premiums required to be
paid by Sotheby’s under the Sotheby’s Lease), license fees, Taxes and Other
Charges, advertising expenses, payroll and related taxes, computer processing
charges, management fees equal to 3% of the Operating Income (provided, that
for purposes of Section 10.2(b)(ii)(B), such management fees shall be limited
to 1% of the Operating Income), operational equipment or other lease payments
as approved by Lender, normalized capital expenditures equal to $105,589.00 per
annum and


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Confidential Treatment Requested by BANA

	
BANA-Soth-00073












normalized tenant improvement costs and/or leasing
commissions equal to $1,015,541.00 per annum, but specifically excluding depreciation and
amortization, income taxes, Debt Service, any incentive fees due under the
Management Agreement, any item of expense that in accordance with GAAP should
be capitalized, any item of expense that would otherwise be covered by the
provisions hereof but which is paid by any Tenant under such Tenant’s Lease or
other agreement, and deposits into the Reserve Accounts.


          “Operating
Income” shall mean, with respect to any period of time,
all income, computed in accordance with GAAP, derived from the ownership and
operation of the Property from whatever source, including, but not limited to, Rents, utility charges,
escalations, forfeited security deposits, interest on credit accounts, service
fees or charges, license fees, parking fees, rent concessions or credits, and
other required pass-throughs but excluding
sales, use and occupancy or other taxes on receipts required to be
accounted for by Borrower to any Governmental Authority, refunds and
uncollectible accounts, sales of furniture, fixtures and equipment, interest
income from any source other than the escrow accounts, Reserve Accounts or other
accounts required pursuant to the Loan Documents, Insurance Proceeds (other
than business interruption or other loss of income insurance), Awards,
percentage rents, unforfeited security deposits, utility and other similar
deposits, income from tenants not paying rent, income from tenants in
bankruptcy, non-recurring or extraordinary income, including, without
limitation lease termination payments, and any disbursements to Borrower from
the Reserve Funds.


          “Optional
Prepayment Date” shall mean July 1, 2015.


          “Other
Charges” shall mean any and all ground rents, maintenance
charges, impositions other than Taxes, 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.


          “Participations”
shall have the meaning set forth in Section 13.1 hereof.


          “Patriot
Act” shall have the meaning set forth in Section 4.41
hereof.


          “Permitted
Encumbrances” shall mean collectively, (a) the Lien and
security interests created by the Loan Documents, (b) all Liens, encumbrances
and other matters disclosed in the Title Insurance Policy, (c) Liens, if any,
for Taxes imposed by any Governmental Authority not yet due or delinquent, and
(d) such other title and survey exceptions as Lender has approved or may
approve in writing in Lender’s sole discretion.


          “Permitted
Fund Manager” shall mean any Person that on the date of
determination is (i) a nationally-recognized manager of investment funds
investing in debt or equity interests relating to commercial real estate or an
entity that constitutes a Qualified Institutional Lender under clauses (A),
(B), (C) or (D) of the definition thereof, (ii) investing through
a fund with committed capital of at least $250,000,000 and (iii) not subject to
any action or proceeding under any bankruptcy, insolvency, rehabilitation or
other similar proceeding.


          “Permitted
Investments” shall mean to the extent available from
Lender or Lender’s servicer for deposits in the Reserve Accounts or the Cash
Management Account, any one or more of the following obligations or securities
acquired at a purchase price of not greater than


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Confidential Treatment Requested by BANA

	
BANA-Soth-00074












par, including those issued by a servicer of the Loan,
the trustee under any securitization or any of their respective Affiliates,
payable on demand or having a maturity date not later than the Business Day
immediately prior to the date on which the funds used to acquire such
investment are required to be used under this Agreement and meeting one of the
appropriate standards set forth below:


          (a)
obligations of, or obligations fully guaranteed as to payment of principal and
interest by, the United States or any agency or instrumentality thereof
provided such obligations are backed by the full faith and credit of the United
States of America including, without limitation, obligations of: the U.S.
Treasury (all direct or fully guaranteed obligations), the Farmers Home
Administration (certificates of beneficial ownership), the General Services
Administration (participation certificates), the U.S. Maritime Administration
(guaranteed Title XI financing), the Small Business Administration (guaranteed
participation certificates and guaranteed pool certificates), the U.S.
Department of Housing and Urban Development (local authority bonds) and the
Washington Metropolitan Area Transit Authority (guaranteed transit bonds);
provided, however, that the investments described in this clause must (i) have
a predetermined fixed dollar of principal due at maturity that cannot vary or
change, (ii) be rated “AAA” or the equivalent by each of the Rating Agencies,
(iii) if rated by S&P, must not have an “r” highlighter affixed to their
rating, (iv) if such investments have a variable rate of interest, such
interest rate must be tied to a single interest rate index plus a fixed spread
(if any) and must move proportionately with that index, and (v) such
investments must not be subject to liquidation prior to their maturity;


          (b)
Federal Housing Administration debentures;


          (c)
obligations of the following United States government sponsored agencies:
Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System
(consolidated systemwide bonds and notes), the Federal Home Loan Banks
(consolidated debt obligations), the Federal National Mortgage Association
(debt obligations), the Financing Corp. (debt obligations), and the Resolution
Funding Corp. (debt obligations); provided,
however, that the investments described in this clause must (i) have
a predetermined fixed dollar of principal due at maturity that cannot vary or
change, (ii) if rated by S&P, must not have an “r” highlighter affixed to
their rating, (iii) if such investments have a variable rate of interest, such
interest rate must be tied to a single interest rate index plus a fixed spread
(if any) and must move proportionately with that index, and (iv) such
investments must not be subject to liquidation prior to their maturity;


          (d)
federal funds, unsecured certificates of deposit, time deposits, bankers’
acceptances and repurchase agreements with maturities of not more than 365 days
of any bank, the short term obligations of which at all times are rated in the
highest short term rating category by each Rating Agency (or, if not rated by
all Rating Agencies, rated by at least one Rating Agency in the highest short
term rating category and otherwise acceptable to each other Rating Agency, as
confirmed in writing that such investment would not, in and of itself, result
in a downgrade, qualification or withdrawal of the initial, or, if higher, then
current ratings assigned to the Securities); provided, however, that the
investments described in this clause must (i) have a predetermined fixed dollar
of principal due at maturity that cannot vary or change, (ii) if rated by
S&P, must not have an “r” highlighter affixed to their rating, (iii) if
such investments have a


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Confidential Treatment Requested by BANA

	
BANA-Soth-00075












variable rate of interest, such interest rate must be
tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv)
such investments must not be subject to liquidation prior to their
maturity;


          (e)
fully Federal Deposit Insurance Corporation-insured demand and time
deposits in, or certificates of deposit of,
or bankers’ acceptances with maturities of not more than 365 days and
issued by, any bank or trust company, savings and loan association or savings
bank, the short term obligations of which at all times are rated in the highest
short term rating category by each Rating Agency (or, if not rated by all
Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise
acceptable to each other Rating Agency, as confirmed in writing that such
investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if
higher, then current ratings assigned to the Securities); provided, however, that the investments described in this
clause must (i) have a predetermined fixed dollar of principal due at
maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating,
(iii)
if such investments have a variable rate of interest, such interest rate
must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with
that index, and (iv) such investments must not be subject to liquidation
prior to their maturity;


          (f)
debt obligations with maturities of
not more than 365 days and at all times rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by
at least one Rating Agency and otherwise acceptable to each other Rating
Agency, as confirmed in writing that such investment
would not, in and of itself, result in a downgrade, qualification or withdrawal
of the initial, or, if higher, then
current ratings assigned to the Securities) in its highest long-term unsecured
rating category; provided, however, that the investments described in this
clause must (i) have a predetermined fixed dollar of principal due at maturity
that cannot vary or change, (ii) if rated by S&P, must not have an “r”
highlighter affixed to their rating, (iii) if such investments have a variable
rate of interest, such interest rate must be tied to a single interest rate
index plus a fixed spread (if any) and must
move proportionately with that index, and (iv) such investments must not
be subject to liquidation prior to their maturity;


          (g)
commercial paper (including both
non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date
not more than one year after the date of issuance thereof) with
maturities of not more than 365 days and that at all times is rated by each Rating Agency (or, if not rated by
all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as
confirmed in writing that such
investment would not, in and of itself, result in a downgrade, qualification or
withdrawal of the initial, or, if
higher, then current ratings assigned to the Securities) in its highest short-term unsecured debt rating; provided,
however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due
at maturity that cannot vary or change, (ii) if rated by S&P, must
not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of
interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any)
and must move proportionately with that index, and (iv) such investments
must not be subject to liquidation prior to their maturity;


          (h)
units of taxable money market funds, with maturities of not more than 365 days and
which funds are regulated investment companies, seek to maintain a constant net
asset value


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Confidential Treatment Requested by BANA

	
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per share and invest solely in obligations backed by
the full faith and credit of the United States, which funds have the highest
rating available from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating
Agency and otherwise acceptable to each other Rating Agency, as
confirmed in writing that such investment would not, in and of itself, result
in a downgrade, qualification or withdrawal of the initial, or, if higher, then
current ratings assigned to the Securities) for money market funds; and


          (i)
any other security, obligation or investment which has been approved as a Permitted
Investment in writing by (i) Lender and (ii) each Rating Agency, as evidenced
by a written confirmation that the
designation of such security, obligation or investment as a Permitted
Investment will not, in and of itself, result in a downgrade, qualification or
withdrawal of the initial, or, if higher, then current ratings assigned to the
Securities by such Rating Agency;


          provided, however, that no obligation or
security shall be a Permitted Investment if (A) such obligation or security
evidences a right to receive only interest payments, (B) the right to receive principal and interest payments on such
obligation or security are derived from an underlying investment that
provides a yield to maturity in excess of one hundred twenty percent (120%) of
the yield to maturity at par of such underlying investment or (C) such
obligation or security has a remaining term to maturity in excess of one (1)
year.


          “Permitted Mezzanine Financing”
shall have the meaning set forth
in Section 7.6 hereof.


          “Permitted Transferee” shall mean
any of the following entities:


	
 

	
 


	
 

	
          (a)
 a pension fund, pension trust or pension account that immediately
 prior to such transfer has total real estate assets with a market value of at
 least $600,000,000.00;


	
 

	
 


	
 

	
          (b)
 a pension fund advisor who (i) immediately prior to such transfer
 controls, directly and/or indirectly, at
 least $600,000,000.00 of real estate assets (exclusive of the Property),
 and (ii) is acting on behalf of one or more pension funds that, in the
 aggregate, satisfy the requirements of clause (a) of this definition;


	
 

	
 


	
 

	
          (c)
 an insurance company which is subject
 to supervision by the insurance commissioner,
 or a similar official or agency, of a state or territory of the United States
 (including the District of Columbia) (i) with a net worth of at least
 $600,000,000.00, and (ii) who, immediately
 prior to such transfer, controls, directly and/or indirectly, real estate assets
 of at least $600,000,000.00 (exclusive of the Property);


	
 

	
 


	
 

	
          (d)
 an association organized under the
 banking laws of the United States or any
 state or territory of the United States (including the District of Columbia)
 (i) with a combined capital and surplus of at least $600,000,000.00,
 and (ii) who, immediately prior to such transfer, controls, directly or
 indirectly, real estate assets of at least $600,000,000.00 (exclusive of the
 Property); or


	
 

	
 


	
 

	
          (e)
 any entity (i) (x) with an
 “investment grade rating” from each of the Rating Agencies or (y) who owns
 and operates at least ten major downtown office buildings comparable in size to the Property
 located in major metropolitan markets





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(exclusive of the Property), (ii) who has a net
 worth of at least $500,000,000.00, and (iii) who, immediately prior to such transfer, controls, directly and/or
 indirectly, real estate assets with a total market value of at least
 $500,000,000.00 (exclusive of the Property).


	
 

	
 


	
 

	
Notwithstanding the foregoing, no person or entity
 shall be deemed to be a Permitted Transferee if (y) such person or entity (or
 any other person or entity owned or Controlled by such person or entity or
 affiliated with such person or entity) has been, within the last ten (10)
 years, (I) subject to any material, uncured event of default in connection
 with a loan financing which resulted in litigation or an acceleration of an
 indebtedness held by Lender or (II) the subject of any action or proceeding
 under applicable laws relating to insolvency;
 or (z) any of the principals or entities which Control such person or entity have
 ever been convicted of a felony.





          “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 granting
clause of the Mortgage.


          “Physical Conditions Report”
shall mean that certain Property
Condition Report prepared by IVI International, Inc. dated May 11, 2005.


          “Policies” shall have the meaning
specified in Section 8.1(b)
hereof. 


          “Private Rating” shall have the
meaning set forth in Section 13.6 hereof. 


          “Prohibited Transfer” shall have
the meaning set forth in Section 7.2
hereof.


          “Property” shall mean the parcel
of
real property, the Improvements thereon and all Personal Property owned by
Borrower and encumbered by the Mortgage, together with all rights pertaining to such property and Improvements, as
more particularly described in the granting clause of the Mortgage and
referred to therein as the “Property”.


          “Provided Information” shall have
the meaning set forth in Section
13.4(a) hereof. 


          “Qualified Institutional Lender”
shall
mean one or more of the following:


	
 

	
 


	
 

	
          (A)
 a real estate investment trust, bank, saving and loan association, investment bank, insurance company, trust
 company, commercial credit corporation, pension plan, pension fund or pension advisory firm, mutual fund,
 government entity or plan, provided that any such Person referred to in this clause
 (A) satisfies the Eligibility Requirements;


	
 

	
 


	
 

	
          (B) an
 investment company, money management firm or “qualified institutional
 buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an institutional “accredited
 investor” within the meaning of Regulation D





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under the Securities Act of
 1933, as amended, provided that any such Person referred to in this clause
 (B) satisfies the Eligibility Requirements;


	
 

	
 


	
 

	
          (C)
 an institution substantially similar
 to any of the foregoing entities described in clauses (A) or (B)
 that satisfies the Eligibility Requirements;


	
 

	
 


	
 

	
          (D)
 any entity Controlled (as defined below) by any of the entities
 described in clauses (A), (B) or (C) above;


	
 

	
 


	
 

	
          (E)
 a Qualified Trustee in connection
 with a securitization of, the creation of collateralized debt obligations (“CDO”)
 secured by or financing through an “owner trust” of, the
 Loan (collectively, “Securitization
 Vehicles”), so long as (A) the special servicer or manager of such Securitization Vehicle has the
 Required Special Servicer Rating and (B) the entire “controlling class” of
 such Securitization Vehicle, other than with respect to a CDO Securitization Vehicle, is held by one
 or more entities that are otherwise Qualified
 Institutional Lenders under clauses (A), (B), (C) or (D)
 of this definition; provided that
 the operative documents of the related Securitization Vehicle require that (l) in the case of a CDO Securitization Vehicle,
 the “equity interest” in such Securitization
 Vehicle is owned by one or more entities that are Qualified Institutional Lenders
 under clauses (A), (B), (C) or (D) of this
 definition and (2) if any of the relevant trustee,
 special servicer, manager fails to meet the requirements of this clause
 (E), such Person must be
 replaced by a Person meeting the requirements of this clause (E)
 within thirty (30) days; or


	
 

	
 


	
 

	
          (F) an
investment fund, limited liability company, limited partnership or general partnership where a Permitted Fund
Manager acts as the general partner, managing
member or fund manager and at least 50% of the equity interests in such investment vehicle are owned, directly or
indirectly, by one or more entities that are otherwise Qualified Institutional Lenders under clauses (A),
(B), (C) or (D) of this definition. 


	
 

	
 


	
 

	
For purposes of this definition
 only, the term “Control” shall
 mean the ownership, directly or indirectly, in the aggregate of more
 than fifty percent (50%) of the beneficial ownership interests of an entity
 and the possession, directly or indirectly, of the power to direct or cause
 the direction of the management or policies of an entity, whether through the
 ability to exercise voting power, by contract or otherwise.





          “Qualified Manager” shall mean
Manager or a reputable and experienced professional management organization (a) which manages, together with its affiliates,
at least ten (10) first class office buildings totaling at least 3,500,000
square feet of gross leasable area, exclusive of the Property and (b) approved by Lender, which approval shall not have
been unreasonably withheld and for
which Lender shall have received (i) written confirmation from the Rating Agencies
that the employment of such manager will not result in a downgrade, withdrawal
or qualification of the initial, or if
higher, then current ratings issued in connection with a Securitization, or if a Securitization has not
occurred, any ratings to be assigned in connection with a
Securitization, and (ii) with respect to any Affiliated Manager, a revised
substantive non-consolidation opinion if one was delivered in connection with
the closing of the Loan.


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          “Qualified Trustee” shall mean
(i) a corporation, national bank,
national banking association or a trust company, organized and doing
business under the laws of any state or the United States of America,
authorized under such laws to exercise corporate trust powers and to accept the
trust conferred, having a combined capital and surplus of at least $100,000,000
and subject to supervision or examination by
federal or state authority, (ii) an institution insured by the Federal Deposit Insurance Corporation or (iii)
an institution whose long-term senior unsecured debt is rated either of
the then in effect top two rating categories of each of the Rating Agencies.


          “Rating Agencies” shall mean each
of
S&P, Moody’s and Fitch, or any other nationally-recognized statistical
rating agency which has been approved by Lender and which rate (or are
anticipated to rate) the Securities.


          “Release” shall have the meaning
set forth in Section 12.5
hereof.


          “REMIC Prohibition Period”
shall have the meaning set forth
in Section 2.4(b)(iv) hereof.


          “REMIC Trust” shall mean a
“real
estate mortgage investment conduit” (within the meaning of Section 860D, or
applicable successor provisions, of the Code) that holds the Note.


          “Renewal Lease” shall have the
meaning set forth in Section 5.13 hereof. 


          “Renewal Sublease” shall have the
meaning set forth in Section 5.13
hereof. 


          “Rent Roll” shall have the
meaning set forth in Section 4.24
hereof. 


          “Rents” shall have the meaning
set forth in the Mortgage.


          “Replacement Reserve Account”
shall have the meaning set forth
in Section 9.2(b) hereof.


          “Replacement Reserve Funds”
shall have the meaning set forth
in Section 9.2(b) hereof.


          “Replacement Reserve Monthly Deposit”
shall
have the meaning set forth in Section 9.2(b)
hereof.


          “Replacements” shall have the
meaning set forth in Section 9.2(a)
hereof.


          “Required Rating” shall mean a
rating by S&P of not less than AA- if the term of such Letter of Credit, bond or other instrument is no
longer than three (3) months or if the term of such Letter of Credit, bond or other instrument is in excess of three
(3) months, a long term unsecured credit rating by the applicable Rating
Agencies of not lower than “AA”, “AA” and “Aa2” by S&P, Fitch and/or
Moody’s, respectively, or, if a Securitization has not occurred, such other rating that is reasonably acceptable to
Lender or, if a Securitization shall have occurred, such other rating that the Rating Agencies shall
have confirmed in writing will not, in and of itself, result in a
downgrade, withdrawal or qualification of the then current ratings assigned in
connection with such Securitization.


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          “Required Work” shall have the
meaning set forth in Section 9.4 hereof.


          “Required Special Servicer
Rating” shall mean (i) a
rating of “CSS1” in the case of Fitch, (ii) on the S&P list of
approved special servicers in the case of S&P and (iii) in the case of
Moody’s, such special servicer is acting as special servicer in a commercial
mortgage loan securitization that was rated by Moody’s within the twelve (12)
month period prior to the date of determination,
and Moody’s has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed
any class of commercial mortgage securities on watch citing the
continuation of such special servicer as special servicer of such commercial
mortgage securities.


          “Reserve Accounts” shall mean the
Debt Service Reserve Account and the following sub-accounts of the Cash
Management Account: the Tax and Insurance Reserve Account, the Replacement Reserve Account, the Operating Expense
Reserve Account, the Extraordinary Expense Reserve Account or any other
escrow account established by the Loan Documents.


          “Reserve Funds” shall mean the Tax
and Insurance Reserve Funds, the Replacement Reserve Funds, the Debt Service
Reserve Funds, the Operating Expense Reserve Funds, the Extraordinary Expense Reserve Funds or any other escrow funds established
by the Loan Documents.


          “Restoration” shall mean,
following
the occurrence of a Casualty or a Condemnation which is of a type necessitating the repair of the Property, the
completion of the repair and restoration of the Property as nearly as
possible to the condition the Property was in immediately prior to such Casualty or Condemnation, with such
alterations as may be reasonably approved by Lender.


          “Restoration Consultant” shall
have the meaning set forth in Section
8.4(b)(iii) hereof. 


          “Restoration Retainage” shall
have the meaning set forth in Section
8.4(b)(iv) hereof. 


          “Restricted Party” shall have the
meaning set forth in Section 7.1
hereof.


          “Revised Note Rate” shall mean,
with respect to Note A, the Revised
Note A Rate, and, with respect to Note B, the Revised Note B Rate.


          “Revised Note A Rate” shall mean
a rate per annum equal to the sum of
(x) five percent (5.00%) and (y) the Initial Note A Rate.


          “Revised Note B Rate” shall mean
a rate per annum equal to the sum of
(x) five percent (5.00%) and (y) the Initial Note B Rate.


          “Sale or Pledge” shall have the
meaning set forth in Section 7.1
hereof.


          “Scheduled Payment Date” shall
have
the meaning set forth in Section 2.2(b) hereof.


          “Securities” shall have the
meaning
set forth in Section 13.1 hereof.


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


          “Securities Liabilities” shall
have the meaning set forth in Section 13.5
hereof. 


          “Securitization” shall have the
meaning set forth in Section 13.1 hereof.


          “Sotheby’s” shall mean
Sotheby’s,
Inc., a New York corporation, as tenant under the Sotheby’s Lease, together with its successors and assigns permitted in
accordance with the applicable terms
and conditions of the Sotheby’s Lease (including, without limitation, the Sotheby’s Guarantor to the extent the
Sotheby’s
Guarantor assumes the tenant’s obligations under the Sotheby’s Lease in accordance with the applicable terms and
conditions of the Sotheby’s Guaranty (defined below), as applicable).


          “Sotheby’s Event of Default”
shall
mean the occurrence and continuance of a default under the Sotheby’s Lease
beyond all applicable notice and cure periods thereunder (if any).


          “Sotheby’s Guarantor” shall
mean
Sotheby’s Holdings, Inc., a Michigan corporation, as guarantor under Sotheby’s Guaranty, together with its successors and
assigns permitted in accordance with the applicable terms and conditions
of the Sotheby’s Lease and of the Sotheby’s Guaranty
(provided, that, in the case of any assignment of the Sotheby’s Lease in
accordance with the terms of the Sotheby’s Lease (including, without
limitation, Section 17(n) thereof) that results in the successor tenant under
the Sotheby’s Lease being the only party (as between such tenant and any
substitute guarantor under the Sotheby’s Lease) to receive (or to receive a
higher) long-term unsecured debt rating (or
equivalent Private Rating) from the Rating Agencies, then the term
“Sotheby’s Guarantor” as used herein shall be deemed to refer to such
substitute tenant under the Sotheby’s Lease).


          “Sotheby’s Lease” shall mean,
collectively, (i) that certain Lease dated as of the date hereof by and among Borrower and Sotheby’s, Inc.,
(ii) that certain Guaranty of Lease dated as of the date hereof executed
by Sotheby’s Holdings, Inc. (the “Sotheby’s
Guaranty”), and (iii) that certain Subordination, Non-Disturbance
and Attornment Agreement by and among Lender and Sotheby’s dated as of the date
hereof (the “Sotheby’s SNDA”), as
each of the same may be amended, supplemented, restated or otherwise modified
in accordance with the applicable terms and conditions thereof and hereof.


          “Sotheby’s Sublease” shall
have the meaning set forth in Section 5.13
hereof. 


          “Special Member” shall have the
meaning set forth in Section
6.1(c).


          “Specified Article 7 Breach”
shall mean a Prohibited Transfer
that results in (a) a Sale or Pledge of all or any material portion of
the Property, or (b) Borrower Principal Family Group failing to Control
Borrower, any SPE Component Entity and Affiliated Manager.


          “Specified Provisions” shall mean
the following Sections of (I) this
Agreement: (a) Sections 5.1 through 5.4, (b) Section 5.6, (c) Section
5.9, (d) Section 5.10, (e) Section 5.11(d), (f) Section 5.12(b)(i), (g) Section 5.13(a), (h) Section 5.15, (i) Section
5.17, 0) Section 5.21, (k) Section
7.2, (1) Section 9.2, (m) Section 9.5, (n) Sections 12.2 through 12.4 and (o)
Section


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13.4(a); and (II) the Mortgage:
(a) Section 3.5, (b) Section 5.1, (c) Section 8.8, (d) Section 9.1 and
(e) Section 9.2.


          “SPE Component Entity” shall have
the meaning set forth in Section 6.1(b) hereof. 


          “Standard Statements” shall have
the meaning set forth in Section 5.1l(c)(i)(A) hereof.


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


          “State” shall mean the state in
which the Property or any part thereof is located. 


          “Successor Borrower” shall have
the meaning set forth in Section
2.4(b)(iii) hereof. 


          “Surveyor” shall have the meaning
set forth in Section 3.2(c) hereof.


          “Tax and Insurance Reserve Funds”
shall
have the meaning set forth in Section 9.6 hereof.


          “Tax and Insurance Reserve Account”
shall
have the meaning set forth in Section 9.6 hereof.


          “Taxes” shall mean all real estate
and personal property taxes, assessments, water rates or sewer rents, now or
hereafter levied or assessed or imposed against the Property or any part thereof.


          “Tenant” shall mean any Person
leasing, subleasing or otherwise occupying any portion of the Property under a
Lease or other occupancy agreement with Borrower (including, without
limitation, Sotheby’s).


          “Tenant Direction Letter” shall
have the meaning set forth in Section 10.2
hereof. 


          “Termination Fee Deposit” shall
have
the meaning set forth in Section 9.3(b).


          “Title Company” shall have the
meaning set forth in Section 3.2(b) hereof.


          “Title Insurance Policy” shall
mean that certain ALTA mortgagee title
insurance policy issued with respect to the Property and insuring the
lien of the Mortgage.


          “Transferee” shall have the
meaning set forth in Section 7.5
hereof.


          “Tribunal” shall mean any state,
commonwealth, federal,
foreign, territorial or other court
or governmental department, commission, board, bureau, district, authority,
agency, central bank, or instrumentality, or any arbitration authority.


          “UCC” or “Uniform Commercial
Code” shall
mean the Uniform Commercial Code as in effect in the State where the applicable
Property is located.


          “Underwriter Group” shall have the
meaning set forth in Section 13.5(b) hereof.


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          “Voluntary Bankruptcy
Proceeding” shall mean (i) the
filing by Borrower of a voluntary petition under any Creditors Rights
Laws, or (ii) the filing of a collusive involuntary petition against Borrower
under any Creditor’s Rights Laws by an Affiliate of Borrower.


          Section
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 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.


ARTICLE 2 

GENERAL TERMS


          Section
2.1. Loan Commitment; Disbursement to Borrower


          (a) 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.


          (b) Borrower may request and receive only
one borrowing in respect of the Loan and any amount borrowed and repaid in
respect of the Loan may not be re-borrowed.


          (c) The
Loan shall be evidenced by the Note and secured by the Mortgage and the other Loan Documents.


          (d) Borrower
shall use the proceeds of the Loan to (i) refinance Borrower’s existing loan secured by the Property, (ii) make deposits
into the Reserve Funds on the Closing Date in the amounts provided
herein, (iii) pay costs and expenses incurred in connection with the closing of
the Loan, as approved by Lender, (iv) fund any working capital requirements of
the Property, and (v) distribute the balance, if any, to its partners.


          Section
2.2. Loan Payments


          (a) The outstanding principal balance of
the Loan shall bear interest at a fixed rate per annum equal to (i) prior to
the Optional Prepayment Date, the Initial Note Rate, and (ii) from and after
the Optional Prepayment Date, the Revised Note Rate. Interest shall be computed
based on the daily rate produced assuming a
three hundred sixty (360) day year, multiplied by the actual number of
days elapsed. Except as otherwise set forth in this Agreement, interest shall
be paid in arrears.


          (b) (i) Payments
Prior to the Optional Prepayment Date. Borrower shall make an initial
payment of $322,067.43 (of which $273,504.96 is allocable to Note A and
$48,562.47 is allocable to Note B) on the
Closing Date for interest from the Closing Date through and including June 30, 2005. Thereafter, except as may
be adjusted in accordance with the last sentence of Section 2.2(c), (A)
Borrower shall make consecutive monthly installments of interest


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only in an amount calculated in accordance with
Section 2.2(a) above (such amount, the “I/O Monthly Payment Amount”) pursuant to the terms of Section 2.2(d) on the
first (1st) day of each month beginning on August 1, 2005 (each such date
through and including the Maturity Date,
a “Scheduled Payment Date”) through
and including the Scheduled Payment Date occurring in July, 2010; and (B)
Borrower shall make consecutive monthly installments of principal and
interest in the applicable amounts set forth on Schedule 2.2(b) (allocable to
Note A to Note B as set forth on such Schedule) pursuant to the terms of
Section 2.2(d) (the “Monthly Payment Amount”) on each Scheduled Payment Date commencing with the
Scheduled Payment Date occurring in August, 2010 through and including
the Optional Prepayment Date.


                    (ii)
Payments After the Optional Prepayment Date. On each Scheduled Payment Date occurring after the Optional
Prepayment Date, Borrower shall (A) make a payment to Lender of
principal and interest in an amount equal to the Monthly Payment Amount to be
applied first to interest in an amount equal to interest that would have
accrued on the Debt (without adjustment for Accrued Interest) at the Initial
Note Rate and then to principal, and (B) pay to Lender all Excess Cash Flow to be
applied in accordance with the terms and conditions of this Agreement. After
the Optional Prepayment Date, interest accrued at the Revised Note Rate and not
paid pursuant to the preceding sentence shall be added to the principal balance
of Note A or Note B, as applicable, and shall earn interest at the Revised Note
Rate to the extent permitted by applicable
Legal Requirements (such accrued interest, “Accrued
Interest”).


                    (iii)
Payment on Maturity Date. Borrower shall pay to Lender on the Maturity Date
the remaining outstanding principal amount of the Loan, all accrued and unpaid
interest (including, without limitation, the
Accrued Interest) and all other amounts due hereunder and under the
other Loan Documents.


          (c) The Monthly Payment Amount shall mean the
amount of interest and principal which
would be due in order to fully amortize the principal amount of the Loan, over
an amortization term of thirty (30) years assuming an annual interest
rate equal to the Initial Note Rate, computed on the basis of a three hundred
sixty (360) day year consisting of twelve (12) months of thirty (30) days each. Borrower expressly understands and
agrees that such computation of interest based on a three hundred sixty
(360) day year consisting of twelve (12) months of thirty (30) days each is
solely for the purpose of determining the Monthly Payment Amount, and, notwithstanding such computation,
interest shall accrue on the outstanding principal amount of the Loan as
provided in Section 2.2(a) above. Borrower understands and acknowledges that such interest accrual
requirement results in more interest accruing on the Loan than if either
a thirty (30) day month and a three hundred sixty (360) day year or the actual
number of days and a three hundred sixty-five (365) day year were used to
compute the accrual of interest on the Loan. Borrower recognizes that such
interest accrual requirement will not fully amortize
the Loan within the amortization period set forth above. Following any partial prepayment occurring solely as a result of the
application of Insurance Proceeds or Awards pursuant to the terms of this Agreement, Lender shall adjust the Monthly
Payment Amount to give effect to any such partial prepayment, provided,
however, that in no event will any such adjustment
result in any such installment becoming due and payable on any date after the Maturity Date.


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          (d) Each
payment by Borrower to Lender hereunder or under the Note shall be payable at P.O. Box 65585, Charlotte, North
Carolina 28265-0585, or by wire pursuant to the following instructions: Bank of
America, N.A., ABA #111000025, Account #4782779943 for credit to CMSG, Loan #59039, or at such other place
or pursuant to such other wiring instructions or to such other account
as Lender may designate from time to time on ten (10) days prior written notice to Borrower. Whenever any
payment hereunder or under the Note shall be stated to be due on a day which is not a Business Day, such payment shall
be made on the first Business Day preceding such scheduled due date.


          (e) Prior
to the occurrence of an Event of Default, all monthly payments made as scheduled under this Agreement and the Note shall
be applied first to the payment of interest computed at the Note Rate, and the balance toward the reduction of the
principal amount of the Note. Prior to
the occurrence and continuance of an Event of Default, all voluntary and involuntary
prepayments on the Note shall be applied, to the extent thereof, first, to
accrued but unpaid interest on the amount
prepaid, second, to the remaining principal amount, and, third, to any
other sums due and unpaid to Lender in connection with the Loan. Following the
occurrence of an Event of Default, any
payment made on the Note shall be applied to accrued but unpaid interest,
late charges, accrued fees, the unpaid principal amount of the Note, and any
other sums due and unpaid to Lender in connection with the Loan, in such manner
and order as Lender may elect in its sole and absolute discretion.


          (f) All
payments made by Borrower hereunder or under the Note or the other Loan Documents shall be made irrespective of, and
without any deduction for, any setoff or counterclaims.


          Section
2.3. Late Payment Charge


          If any principal or interest payment is not paid by
Borrower on or before the date occurring five (5) days after the date
the same is due, Borrower shall pay to Lender upon demand an amount equal to
the lesser of three percent (3%) of such unpaid sum or the maximum amount
permitted by applicable law 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 the Mortgage and the other Loan Documents to the extent permitted by
applicable law.


          Section
2.4. Prepayment; Defeasance


          Except
as otherwise expressly permitted by this Section 2.4 no voluntary prepayments, whether in whole or in part, of the Loan or any
other amount at any time due and owing under the Note can be made by
Borrower or any other Person without the express written consent of Lender.


          (a) Lockout Period. Borrower has no right
to make, and Lender shall have no obligation to accept, any voluntary
prepayment, whether in whole or in part, of the Loan during the Lockout Period.
Notwithstanding the foregoing, if either (i) Lender, in its sole and absolute discretion, accepts a full or partial voluntary
prepayment during the Lockout Period or (ii) there is an involuntary prepayment
during the Lockout Period, then, in either case, Borrower shall, in


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addition to any portion of the Loan prepaid (together
with all interest accrued and unpaid thereon),
pay to Lender a prepayment premium in an amount calculated in accordance with Section 2.4(c) hereof.


          (b)
Defeasance.


	
 

	
 

	
 

	
 


	
 

	
          (i)
 Notwithstanding any provisions of this Section 2.4 to the contrary, including, without limitation, subsection (a) of
 this Section 2.4, at any time other than during a REMIC Prohibition Period but prior to the Optional Prepayment
 Date, Borrower may cause the release of the Property from the lien of
 the Mortgage and the other Loan Documents
 upon the satisfaction of the following conditions:


	
 

	
 

	
 

	
 


	
 

	
 

	
          (A)
 no Event of Default shall exist
 under any of the Loan Documents;


	
 

	
 

	
 

	
 


	
 

	
 

	
          (B)
 not less than thirty (30) (but not
 more than ninety (90)) days prior written
 notice shall be given to Lender specifying a date on which the Defeasance Collateral (as hereinafter defined) is to be
 delivered (the “Release Date”), such
 date being on a Scheduled Payment
 Date; provided, however, that Borrower shall have the right (i) to cancel such notice by providing Lender with
 notice of cancellation ten (10)
 days prior to the scheduled Release Date, or (ii) to extend the scheduled Release Date until the next Scheduled
 Payment Date; provided that in each case, Borrower shall pay all of
 Lender’s out of pocket costs and expenses incurred
 as a result of such cancellation or extension;


	
 

	
 

	
 

	
 


	
 

	
 

	
          (C)
 all accrued and unpaid interest and all other sums due under the Note, this Agreement and under the other Loan
 Documents up to the Release Date,
 including, without limitation, all fees, costs and expenses incurred by Lender and its agents in connection with such
 release (including, without limitation, legal fees and expenses for the
 review and preparation of the Defeasance
 Security Agreement (as hereinafter defined) and of the other materials described in Section 2.4(b)(i)(D) below and any
 related documentation, and any servicing fees, Rating Agency fees or
 other costs related to such release), shall be paid in full on or prior to the Release Date;


	
 

	
 

	
 

	
 


	
 

	
 

	
          (D)
 Borrower shall deliver to Lender
 on or prior to the Release Date:


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
          (1)
 a pledge and security agreement, in form and substance reasonably satisfactory
 to a prudent lender, trustee or servicer of this type of securitized loan
 transaction, creating a first priority security interest in favor of Lender in the Defeasance Collateral, as
 defined herein (the “Defeasance Security Agreement”), which shall provide, among other things, that any excess
amounts
 received by Lender from the Defeasance Collateral over the amounts payable by
 Borrower on a given Scheduled Payment Date, which excess amounts are not
 required to cover all or any portion of amounts payable on a future
 Scheduled Payment Date, shall be refunded to Borrower promptly after each
 such Scheduled Payment Date;





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          (2)
 direct non-callable obligations of
 the United States of America or
 other obligations which are “government securities” within the meaning of Section 2(a)(16) of the Investment
 Company Act of 1940, to the extent
 the applicable Rating Agencies rating the Securities have confirmed in writing that the same will not
 cause a downgrade, withdrawal or
 qualification of the initial, or, if higher, then applicable ratings of the Securities,
 that provide for payments prior and as close as possible to (but in no event later than) all successive Scheduled
 Payment Dates occurring after the Release Date until and including the
 Optional Prepayment Date, with each
 such payment being equal to or greater than the amount of the corresponding Monthly Payment Amount required to
 be paid under this Agreement and
 the Note (including all amounts due on the Optional Prepayment Date, including, without limitation,
 the outstanding principal balance of the Loan) (the “Defeasance Collateral”), each of which
 shall be duly endorsed by the holder
 thereof as directed by Lender or accompanied by a written instrument
 of transfer in form and substance reasonably
 satisfactory to Lender (including, without limitation, such certificates,
 documents and instruments as may be reasonably required by the depository institution holding such
 securities or 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 Security Agreement the first priority security interest
 therein in favor of Lender in conformity with all applicable state and federal laws governing granting of such
 security interests;


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
          (3)
 a certificate of Borrower
 certifying that all of the requirements
 set forth in this Section 2.4(b)(i) have been satisfied;


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
          (4)
 one or more opinions of counsel for
 Borrower in form and substance and delivered by counsel which would be
 reasonably satisfactory to a prudent
 lender, trustee or servicer of this type of securitized loan transaction stating, among other things, that (i)
 Lender has a perfected first priority security interest in the
 Defeasance Collateral and that the
 Defeasance Security Agreement is enforceable against Borrower in accordance with its terms, (ii) in the event
 of a bankruptcy proceeding or
 similar occurrence with respect to Borrower, none of the Defeasance Collateral nor any proceeds thereof will be
 property of Borrower’s estate under Section 541 of the U.S. Bankruptcy
 Code or any similar statute and the grant
 of security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the
 U.S. Bankruptcy Code or applicable state law, (iii) the release of the lien
 of the Mortgage and the pledge of
 Defeasance Collateral will not directly or indirectly result in or cause any REMIC Trust that then holds the Note
 to fail to maintain its status as a
 REMIC Trust and (iv) the defeasance will not cause any REMIC Trust to be an
 “investment company” under the Investment Company Act of 1940;





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          (5)
 a certificate in form and scope
 reasonably acceptable to Lender from an Acceptable Accountant certifying that
 the Defeasance Collateral will
 generate amounts sufficient to make all payments of principal and interest due under the Note
 (including the scheduled outstanding
 principal balance of the Loan due on the Optional Prepayment Date) following the Release Date and through and
 including the Optional Prepayment
 Date; and


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
          (6)
 such other certificates, documents and instruments as Lender may reasonably require; and


	
 

	
 

	
 

	
 


	
 

	
 

	
          (E)
 in the event the Loan is held by a REMIC Trust, Lender has received
 written confirmation from any Rating Agency rating any Securities that substitution of the Defeasance Collateral will
 not result in a downgrade, withdrawal,
 or qualification of the ratings then assigned to any of the Securities.


	
 

	
 

	
 


	
 

	
          (ii)
 Upon compliance with the requirements of Section 2.4(b)(i), (1) the Property
 shall be released from the lien of the Mortgage and the other Loan Documents,
 and the Defeasance Collateral shall constitute collateral which shall secure
 the Note and all other obligations under
 the Loan Documents and (2) Lender will, at Borrower’s expense, execute and deliver any agreements as
 reasonably requested by Borrower to release the lien of the Mortgage
 and the other Loan Documents from the Property or to otherwise assign the Mortgage and any other applicable Loan Documents
 (including, without limitation, a
 letter of authorization permitting Borrower to file UCC-3 terminations).


	
 

	
 

	
 


	
 

	
          (iii)
 Upon the release of the Property in accordance with this Section 2.4(b),
 Borrower shall (at Lender’s sole and absolute discretion) assign all its
 obligations and rights under the Note, together with the pledged Defeasance
 Collateral, to a successor entity designated and approved by Lender in
 its sole and absolute discretion (“Successor
 Borrower”). Successor Borrower shall execute an
 assignment and assumption agreement
 in form and substance satisfactory to Lender in its sole and absolute
 discretion pursuant to which it
 shall assume Borrower’s obligations under the Note and the Defeasance Security Agreement. As conditions to
 such assignment and assumption, Borrower
 shall (A) deliver to Lender one or more opinions of counsel in form and substance and delivered by counsel which would
 be reasonably satisfactory to a prudent lender, trustee or servicer of this
 type of securitized loan transaction stating, among other things, that
 such assignment and assumption agreement is enforceable against Borrower and the Successor Borrower in accordance with its
 terms and that the Note, the Defeasance
 Security Agreement and the other Loan Documents, as so assigned and assumed, are enforceable against the Successor
 Borrower in accordance with their respective
 terms, and opining to such other matters relating to Successor Borrower and
 its organizational structure as Lender may reasonably require, and (B)
 pay all out of pocket fees, costs and
 expenses incurred by Lender or its agents in connection with such assignment and assumption (including, without
 limitation, reasonable legal fees and expenses for the review of the
 proposed transferee and the preparation of the assignment and assumption agreement and related
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fees payable to any Rating Agencies and their
 counsel in connection with the issuance of the
 confirmation referred to in subsection (b)(i)(E) above). Upon such assignment
 and assumption, Borrower shall be
 relieved of its obligations hereunder, under the Note, under the other Loan Documents and under the
 Defeasance Security Agreement, except as expressly set forth in the assignment and assumption agreement.


	
 

	
 


	
 

	
          (iv)
 For purposes of this Section 2.4, “REMIC
 Prohibition Period” means the
 period commencing on the Closing Date and ending on the earlier to occur of
 (A) the second anniversary of the “startup day” within the meaning of
 Section 860G(a)(9) of the Code of any
 REMIC Trust that holds the Note, or (B) the forty-second (42nd)
 Scheduled Payment Date. In no event shall Lender have any obligation
 to notify Borrower that a REMIC Prohibition
 Period is in effect with respect to the Loan, except that Lender shall notify Borrower if any REMIC Prohibition Period
 is in effect with respect to the Loan after receiving any notice
 described in Section 2.4(b)(i)(B); provided, however, that the failure of Lender to so notify Borrower shall
 not impose any liability on Lender or grant Borrower any right to defease the
 Loan during any such REMIC Prohibition Period.





          (c)
Involuntary Prepayment During the Lockout Period. During the Lockout
Period, in the event of any
involuntary prepayment of the Loan or any other amount under the Note, whether
in whole or in part, in connection with or following Lender’s acceleration of
the Note, and whether the Mortgage is satisfied or released by
foreclosure (whether by power of sale or judicial
proceeding), deed in lieu of foreclosure or by any other means, including,
without limitation, repayment of the
Loan by Borrower or any other Person pursuant to any statutory or common law right of redemption, Borrower shall, in
addition to any portion of the principal balance of the Loan prepaid (together with all interest accrued and
unpaid thereon and in the event the
prepayment is made on a date other than a Scheduled Payment Date, a sum equal
to the amount of interest which would have accrued under the Note on the
amount of such prepayment if such prepayment had occurred on the next Scheduled
Payment Date), pay to Lender a prepayment
premium in an amount calculated in accordance with this Section 2.4(c). Such prepayment premium shall be in an amount equal to
the greater of:


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
(i) 1% of the portion of the
 Loan being prepaid; or 


	
 

	
 

	
 

	
 


	
 

	
 

	
(ii) the product obtained by
 multiplying:


	
 

	
 

	
 

	
 


	
 

	
 

	
          (A)
 the portion of the Loan being
 prepaid, times;


	
 

	
 

	
 

	
 


	
 

	
 

	
          (B)
 the difference obtained by
 subtracting (I) the Yield Rate from (II) the Note Rate, times;


	
 

	
 

	
 

	
 


	
 

	
 

	
          (C)
 the present value factor
 calculated using the following formula:


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
l-(1+r)-n

	
 


	
 

	
 

	
 

	


	
 


	
 

	
 

	
 

	
r

	
 








	
 

	
 

	
 

	
 


	
 

	
 

	
r =

	
Yield Rate 


	
 

	
 

	
 

	
 


	
 

	
 

	
n =

	
the number of years and any fraction thereof,
 remaining between the date the prepayment
 is made and the Optional Prepayment
 Date





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          As
used herein, “Yield Rate” means
the yield rate for the 4.125% U.S. Treasury Security due May 15, 2015, as reported in The Wall Street
Journal on the fifth Business Day preceding the Prepayment Calculation Date. If
the Yield Rate is not published for such U.S. Treasury Security, then the “Yield Rate” shall mean the
yield rate for the nearest equivalent U.S. Treasury Security (as selected at Lender’s sole and absolute
discretion) as reported in The Wall Street Journal on the fifth Business
Day preceding the Prepayment Calculation Date. If the publication of such Yield
Rate in The Wall Street Journal is discontinued, Lender shall have the right to
determine such Yield Rate from another
source typically used by other lenders, trustees or servicers of this type of securitized loan
transaction. The “Prepayment Calculation
Date” shall mean, as applicable, the date on which (i) notice
of prepayment is given to Lender, in the case of a voluntary prepayment of the
entire outstanding principal amount of the Note, (ii) Lender applies any
partial prepayment to the reduction of the outstanding principal amount of the
Note, in the case of a voluntary partial
prepayment which is accepted by Lender, (iii) Lender accelerates the Loan, in the case of a prepayment
resulting from acceleration, or (iv) Lender applies funds held under any Reserve Account, in the case of a
prepayment resulting from such application (other than in connection with
acceleration of the Loan).


          (d)
Insurance and Condemnation
Proceeds; Excess Interest.
Notwithstanding any other provision
herein to the contrary, and provided no Event of Default exists, Borrower shall
not be required to pay any prepayment
premium in connection with any prepayment occurring solely as a result of (i) the application of
Insurance Proceeds or Condemnation Proceeds pursuant to the terms of the Loan Documents, or (ii) the
application of any interest in excess of the maximum rate permitted by applicable law to the reduction of the Loan.


          (e)
After the Lockout Period. Borrower may voluntarily prepay (without premium)
the Note in whole or in part at any
time after the day the Lockout Period ends upon giving Lender at least ten (10) days (but not more than
ninety (90) days) prior written notice. Lender shall accept a prepayment pursuant to this Section 2.4(e) on a day other
than a Scheduled Payment Date
provided that, in addition to payment of the full outstanding principal balance
of the Note, Borrower pays to Lender
a sum equal to the amount of interest which would have accrued on the Note if such prepayment occurred
on the next Scheduled Payment Date.


          (f)
Partial Prepayments. Notwithstanding anything herein to the contrary,
provided no Event of Default has occurred and is continuing, any partial
prepayment of the Note shall be applied pro rata (based on the initial
principal balance of Note A and Note B) to Note A and Note B.


          Section
2.5. Payments after Default


          Upon
the occurrence and during the continuance of an Event of Default, 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, (a)
shall accrue at the Default Rate, and (b) Lender shall be entitled to receive
and Borrower shall pay to Lender all cash flow from the Property in accordance with the terms of Article 10 hereof,
such amount to be applied by Lender to the payment of the Debt in such order as Lender shall determine in its sole
discretion, including, without
limitation, alternating applications thereof between interest and principal.
Interest at the Default Rate shall be
computed from the occurrence of the Event of Default until the earlier of


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(i) the actual receipt and
collection of the Debt (or that portion thereof that is then due) and (ii) the cure of such Event of Default. To the extent
permitted by applicable law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at
the same rate as the Loan and shall
be secured by the Mortgage. This paragraph shall not be construed as an
agreement or privilege to extend the
date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the
occurrence of any Event of Default; the acceptance of any payment from Borrower
shall not be deemed to cure or constitute a waiver of any Event of
Default; and Lender retains its rights under this Agreement to accelerate and
to continue to demand payment of the Debt upon the happening of and during the
continuance of any Event of Default,
despite any payment by Borrower to Lender.


          Section
2.6. Usury Savings


          This
Agreement and the Note 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 hereunder at a rate in excess
of the Maximum Legal Rate, the Note 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 hereunder. 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.


ARTICLE 3

CONDITIONS PRECEDENT


          The
obligation of Lender to make the Loan hereunder is subject to the fulfillment
by Borrower or waiver by Lender of the
following conditions precedent no later than the Closing Date. At the time Lender funds the Loan, the
conditions precedent contained in this Article 3 shall be deemed satisfied or otherwise waived by Lender (except to the
extent specifically set forth in any
post closing letter or similar agreement between Borrower and Lender).


          Section
3.1. Representations and Warranties; Compliance with Conditions


          The
representations and warranties of Borrower 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 Lender shall have determined that no Default or an Event of Default shall have
occurred and be continuing; and Borrower 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.


          Section
3.2. Delivery of Loan Documents; Title Insurance; Reports; Leases


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          (a)
Mortgage, Loan Agreement and Note. Lender shall have received from Borrower a fully
executed and acknowledged counterpart of the Mortgage and evidence that
counterparts of the Mortgage and Uniform Commercial Code financing
statements have been delivered to Title
Company for recording, in the reasonable judgment of Lender, so as to
effectively create upon such
recording valid and enforceable Liens upon the Property, of the requisite
priority, 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. Lender shall have also
received from Borrower fully executed counterparts of the this Agreement, the Note and Assignment of
Management Agreement and all other Loan Documents.


          (b)
Title Insurance. Lender shall have received a Title Insurance
Policy issued by Counsel Abstract, Inc., as agent for Chicago Title
Insurance Company (“Chicago”), containing
co-insurance endorsements issued by Counsel
Abstract, Inc., as agent for Stewart Title Insurance Company (“Stewart”; Chicago and Stewart are
collectively herein referred to as the “Title
Company”) and dated as of the Closing Date, with co-insurance
agreements acceptable to Lender. Such
Title Insurance Policy shall (i) provide coverage in the amount of the Loan,
(ii) insure Lender that the Mortgage
creates a valid lien on the Property of the requisite priority, 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 such
endorsements and affirmative coverages as Lender may reasonably request, and
(iv) name Lender as the insured. The
Title Insurance Policy shall be assignable. Lender also shall have received evidence that all premiums in
respect of such Title Insurance Policy have been paid. 


          (c)
Survey. Lender shall have received a re-dated title
survey for the Property, certified to Title Company and Lender and their
successors and assigns, in form and content satisfactory
to Lender and prepared by Earl B. Lovell - S.P. Belcher, Inc. and visually
updated by Fehringer Surveying, P.C.
(the “Surveyor”) in accordance
with the 1999 Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys. The survey shall meet the classification of an “Urban Survey” and the
following additional items from the list of “Optional Survey Responsibilities
and Specifications” (Table A) should be added to each survey: 2, 3, 4, 6, 8, 9, 10, 11 and 13. Such survey shall reflect the same
legal description contained in the Title Insurance Policy referred to in
subsection (b) above and shall include, among other things, a metes and bounds description of the real property
comprising part of the Property reasonably satisfactory to Lender. The Surveyor’s seal shall be affixed to the
survey and the Surveyor shall provide
a certification for each survey in form and substance acceptable to Lender.


          (d)
Insurance. Lender shall have received copies of the Policies
required hereunder, satisfactory to
Lender in its sole discretion, and evidence of the payment of all Insurance Premiums payable for the existing policy
period.


          (e)
Environmental Reports. Lender shall have received the
Environmental Report in respect of the
Property satisfactory to Lender.


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          (f)
Zoning/Building Code. Lender shall have received evidence of
compliance with
zoning and building ordinances and codes, including, without limitation,
required certificates of
occupancy, reasonably acceptable to Lender.


          (g)
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 applicable
Permitted Encumbrances and such other Liens as are
permitted pursuant to the Loan
Documents, and Lender shall have received satisfactory evidence
thereof.


          (h)
Lien Searches. Borrower shall have delivered to Lender certified search
results pertaining to the Borrower, Borrower
Principal and such other Persons or any SPE Component Entity as reasonably
required by Lender for state and federal tax liens, bankruptcy, judgment,
litigation and state and local UCC filings


          Section
3.3. 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 at Lender’s
written request, Lender shall have received and approved certified copies
thereof.


          Section
3.4. Organizational Documents


          On
or before the Closing Date, Borrower shall deliver or cause to be delivered to
Lender (a) copies certified by Borrower of all organizational
documentation related to Borrower, each SPE Component
Entity and Borrower Principal which must be acceptable to Lender in its sole discretion, and (b) such other evidence of the
formation, structure, existence, good standing and/or qualification to do business of the Borrower, each SPE Component
Entity and Borrower Principal, as
Lender may request in its sole discretion, including, without limitation, good standing or existence 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.


          Section
3.5. Opinions of Borrower’s Counsel


          Lender
shall have received opinions of Borrower’s counsel (a) with respect to
non-consolidation issues and (b) with respect to due execution, authority,
enforceability of the Loan Documents and such other matters as Lender may
require, all such opinions in form, scope and substance satisfactory to Lender
and Lender’s counsel in their sole discretion.


          Section
3.6. Annual Budget


          Borrower
shall have delivered, and Lender shall have approved, the Annual Budget for the current fiscal year, a copy of which is
attached as Exhibit A hereto.


          Section
3.7. Taxes and Other Charges


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          Borrower shall have paid
or cause to have been paid all Taxes and Other Charges (including any in
arrears) relating to the Property, which amounts may be funded with proceeds of the Loan.


          Section
3.8. 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.


          Section
3.9. Payments


          All
payments, deposits or escrows required to be made or established by Borrower
under this
Agreement, the Note and the other Loan Documents on or before the Closing Date
shall have
been paid, deposited or escrowed, which such amounts may be funded with the
proceeds of the Loan.


          Section
3.10. Transaction Costs


          Except
as otherwise expressly provided herein, Borrower shall have paid or reimbursed Lender for all out of
pocket expenses in connection with the underwriting, negotiation, Securitization and
closing of the Loan, including title insurance premiums and other title company charges;
recording, registration, filing and similar fees, taxes and charges; transfer, mortgage, deed, stamp or
documentary taxes or similar fees or charges; costs of third-party reports, including
without limitation, environmental studies, credit reports, seismic reports, engineer’s reports,
appraisals and surveys; underwriting and origination expenses; Securitization
expenses; and all actual, reasonable legal fees and expenses charged by counsel
to Lender.


          Section
3.11. No Material Adverse Change


          There
shall have been no material adverse change in the financial condition or
business condition of the Property, Borrower, Borrower Principal, any SPE
Component Entity, Manager or any other person or party contributing to the operating
income and operations of the Property since the date of the most recent financial
statements and/or other information delivered to Lender. The income and
expenses of the Property, the occupancy and leases thereof, and all other
features of the transaction shall be as represented to Lender without material
adverse change.
Neither Borrower nor Borrower Principal, any SPE Component Entity or Affiliated
Manager
shall be the subject of any bankruptcy, reorganization, or insolvency
proceeding.


          Section
3.12. Leases and Rent Roll


          Lender
shall have received copies of all Leases affecting the Property, which shall be
satisfactory in form and substance to Lender. Lender shall have received a
current certified rent roll or other similar occupancy statement of the
Property, reasonably satisfactory in form and substance to Lender.


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          Section
3.13. Intentionally Omitted 


          Section
3.14. Estoppel Certificates


          Borrower
shall have delivered to Lender an original estoppel certificate executed by Sotheby’s in form and substance satisfactory to
Lender.


          Section
3.15. Subordination and Attornment


          Borrower
shall have delivered to Lender a fully executed version of the Sotheby’s SNDA.


          Section
3.16. Tax Lot


          Lender
shall have received evidence that the Property constitutes one (1) or more separate tax lots, which evidence shall be
reasonably satisfactory in form and substance to Lender.


          Section
3.17. Physical Conditions Report


          Lender
shall have received the Physical Conditions Report with respect to the
Property, which report shall be reasonably satisfactory in form and substance
to Lender.


          Section
3.18. Management Agreement


          Lender
shall have received a certified copy of the Management Agreement with respect to the Property which shall be satisfactory in
form and substance to Lender.


          Section
3.19. Appraisal


          Lender
shall have received an appraisal of the Property, which shall be satisfactory
in form and substance to Lender.


          Section
3.20. Financial Statements


          Lender
shall have received such financial statements and related information (including,
without limitation, tax bills) as
may be reasonably requested by Lender, which such financial statements and
related information shall be in form and substance (and prepared by such
parties (including, without limitation, an Acceptable Accountant)) as
may be reasonably required by Lender and
shall be in compliance with any Legal Requirements promulgated by the
Securities and Exchange Commission.


          Section
3.21. Net Operating Income


          The
Net Operating Income for the Property is not less than $16,808,448.00 as
determined by Lender in its sole
discretion pursuant to its standard underwriting procedures for loans which are
consummated by Lender for the purpose of including the same in any
Securitization.


          Section
3.22. Further Documents 


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          Lender
or its counsel shall have received such other and further approvals, opinions, documents and information
as Lender or its counsel may have reasonably requested including the Loan Documents in
form and substance satisfactory to Lender and its counsel.


ARTICLE 4 

REPRESENTATIONS AND WARRANTIES


          Borrower
and, where specifically indicated, each Borrower Principal represents and warrants to Lender as of
the Closing Date that:


          Section
4.1. Organization


          Borrower
(a) has been duly organized and is validly existing and in good standing with
requisite power and authority to own the Property and to transact the business
in which it is now engaged, (b) is duly qualified to do business and is in good
standing in each jurisdiction where it is required to be so qualified in
connection with the Property, its business and its operations, (c) possesses all rights,
licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own the
Property and to transact the business in which it is now engaged, and the sole
business of Borrower is the ownership, management and operation of the
Property, and (d) has full power, authority and legal right to mortgage, grant, bargain,
sell, pledge, assign, warrant, transfer and convey the Property pursuant to the terms of
the Loan Documents, and has full power, authority and legal right to keep and observe all
of the terms of the Loan Documents to which it is a party. Borrower and each Borrower
Principal represent and warrant that the chart attached hereto as Exhibit B sets forth an
accurate listing of the direct and indirect owners of the equity interests in
Borrower and each SPE Component Entity.


          Section
4.2. Status of Borrower


          Borrower’s
exact legal name is correctly set forth on the first page of this Agreement, on
the
Mortgage and on any UCC-1 Financing Statements filed in connection with the
Loan. Borrower
is an organization of the type specified on the first page of this Agreement.
Borrower is
incorporated in or organized under the laws of the state of Delaware.
Borrower’s principal place of business and chief executive office, and the place where
Borrower keeps its books and records, including recorded data of any kind or
nature, regardless of the medium of recording, including software, writings, plans, specifications
and schematics, has been for the preceding four months (or, if less, the entire period of the
existence of Borrower) the address of Borrower set forth on the first page of this Agreement.
Borrower’s organizational identification number, if any, assigned by the state
of incorporation or organization is 030060905-3619750.


          Section
4.3. Validity of Documents


          Borrower
has taken all necessary action to authorize the execution, delivery and performance of this
Agreement and the other Loan Documents. This Agreement and such other Loan
Documents have been duly executed and delivered by or on behalf of Borrower and
each Borrower Principal and constitute the legal, valid and binding obligations
of Borrower and each Borrower Principal enforceable against Borrower and each Borrower
Principal in accordance with their respective terms, subject only to applicable
bankruptcy, insolvency and similar laws


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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).


          Section 4.4. No Conflicts


          The
execution, delivery and performance of this Agreement and the other Loan Documents by Borrower and
each Borrower Principal 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 Borrower or any Borrower Principal pursuant to the terms of any
agreement or instrument to which Borrower or any Borrower Principal is a party
or by which
any of Borrower’s or Borrower Principal’s property or assets is subject, nor
will such action
result in any violation of the provisions of any statute or any order, rule or
regulation of any Governmental Authority having jurisdiction over Borrower or any
Borrower Principal or any of Borrower’s or Borrower Principal’s properties or
assets, and any consent, approval, authorization, order, registration or qualification of or
with any Governmental Authority required for the execution, delivery and performance by
Borrower or Borrower Principal of this Agreement or any of the other Loan Documents has
been obtained and is in full force and effect.


          Section
4.5. Litigation


          There
are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or
other agency now pending or, to Borrower’s or Borrower Principal’s knowledge,
threatened against or affecting Borrower, any Borrower Principal, Manager or
the Property, which actions, suits or proceedings, if determined against
Borrower, any Borrower Principal, Manager or the Property, would materially
adversely affect the condition (financial or otherwise) or business of Borrower or any Borrower
Principal or the condition or ownership of the Property.


          Section
4.6. Agreements


          Borrower
is not a party to any agreement or instrument or subject to any restriction
which would
materially and adversely affect Borrower or the Property, or Borrower’s
business, properties
or assets, operations or condition, financial or otherwise. Borrower is not 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 or the Property is
bound. Borrower has no material financial obligation under any agreement or
instrument to which Borrower is a party or by which Borrower or the Property is
otherwise bound, other than (a) obligations incurred in the ordinary course of
the operation of the Property and (b) obligations under the Loan Documents.


          Section
4.7. Solvency


          Borrower
and each Borrower Principal have (a) not entered into the transaction contemplated under this
Agreement or executed the Note, this Agreement or any other Loan Documents with the actual
intent to hinder, delay or defraud any creditor and (b) received reasonably equivalent
value in exchange for their obligations under the Note, this Agreement or any such other Loan
Documents. Giving effect to the Loan, the fair saleable value of the assets


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of Borrower and each Borrower Principal exceeds and
will, immediately following the making of the Loan, exceed the total
liabilities of Borrower and each Borrower Principal, including, without limitation, subordinated, unliquidated, disputed
and contingent liabilities. No petition in bankruptcy has been filed
against Borrower, any Borrower Principal, any SPE Component Entity (if any) or
Affiliated Manager in the last ten (10) years, and neither Borrower nor any
Borrower Principal, any SPE Component Entity (if any) or Affiliated Manager in
the last ten (10) years has made an assignment for the benefit of creditors or
taken advantage of any Creditors Rights Laws. Neither Borrower nor any Borrower
Principal, any SPE Component Entity (if any) or Affiliated Manager is
contemplating either the filing of a petition by it under any Creditors Rights
Laws or the liquidation of all or a major portion of Borrower’s assets or
property, and Borrower has no knowledge of any Person contemplating the filing
of any such petition against Borrower or any Borrower Principal, any SPE
Component Entity (if any) or Affiliated Manager.


          Section
4.8. Full and Accurate Disclosure


          No
statement of fact made by or on behalf of Borrower or any Borrower Principal in
this Agreement or in any of the other Loan
Documents or in any other document or certificate delivered by or on behalf of Borrower or any
Borrower Principal 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
material fact presently known to Borrower or any Borrower Principal which has
not been disclosed to Lender which materially adversely affects, nor as far as Borrower or any Borrower Principal can
reasonably foresee, might materially adversely affect, the Property or
the business, operations or condition (financial or otherwise) of Borrower or
any Borrower Principal.


          Section
4.9. No Plan Assets


          Borrower
is not an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject
to Title I of ERISA, and none of the assets
of Borrower constitutes or will constitute “plan assets” of one or more such
plans within the meaning of 29 C.F.R. Section 2510.3-101. In addition, (a) Borrower
is not a “governmental plan” within the meaning of Section 3(32) of ERISA and (b) transactions by or with Borrower 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 Internal Revenue Code currently in effect, which prohibit or otherwise
restrict the transactions contemplated by this Agreement.


          Section
4.10. Not a Foreign Person


          Neither
Borrower nor Borrower Principal is a “foreign person” within the meaning of
§1445(f)(3) of the Internal Revenue Code.


          Section
4.11. Enforceability


          The
Loan Documents are not subject to any right of rescission, set-off,
counterclaim or defense by Borrower, 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, and neither Borrower
nor Borrower Principal has asserted any right of rescission, set-off, counterclaim or defense with respect
thereto. As of the date hereof, to the best of


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Borrower’s knowledge, no Default
or Event of Default exists under or with respect to any Loan Document.


          Section
4.12. Business Purposes


          The
Loan is solely for the business purpose of Borrower, and is not for personal,
family, household, or agricultural purposes.


          Section
4.13. Compliance


          To
the best of Borrower’s knowledge, the Property, and the use and operation
thereof, comply in all material respects
with all Legal Requirements, including, without limitation, building and zoning ordinances and codes and the
Americans with Disabilities Act. To Borrower’s
knowledge, Borrower is not in default or violation of any order, writ,
injunction, decree or demand of any
Governmental Authority and Borrower has received no written notice of
any such default or violation. There has not been committed by Borrower or, to
Borrower’s knowledge, any other Person in
occupancy of or involved with the operation or use of the Property any act or omission affording any
Governmental Authority the right of forfeiture as against the Property or any part thereof or any
monies paid in performance of Borrower’s obligations under any of the
Loan Documents.


          Section
4.14. Financial Information


          All
financial data, including, without limitation, the balance sheets, statements
of cash flow, statements of income and
operating expense and rent rolls (or similar occupancy statement), that
have been delivered to Lender in respect of Borrower, any Borrower Principal
and/or the Property (a) (i) with respect to Borrower and/or Borrower Principal,
are true, complete and correct in all material respects, and (ii) with respect
to the Property, are, to Borrower’s actual knowledge,
true, complete and correct in all material respects, (b) accurately represent
the financial condition of Borrower or
Borrower Principal, as applicable, as of the date of such reports, and
(c) with respect to Borrower and/or Borrower Principal, 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. Borrower does not
have 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
reasonably likely to have a material adverse effect on the Property or the
current and/or intended operation thereof, except as referred to or reflected
in said financial statements. Since the date of such financial
statements, there has been no materially adverse change in the financial
condition, operations or business of Borrower or Borrower Principal from that
set forth in said financial statements.


          Section
4.15. Condemnation


          No
Condemnation or other proceeding has been commenced or, to Borrower’s best knowledge,
is threatened or contemplated with respect to all or any portion of the
Property or for the relocation of roadways providing access to the Property.


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          Section
4.16. Utilities and Public Access; Parking


          The
Property has adequate rights of access to public ways and is served by water,
sewer, sanitary sewer and storm drain facilities adequate to service the
Property for full utilization of the Property for its intended uses. All public
utilities necessary to the full use and enjoyment of the Property as currently
used and enjoyed 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 Insurance Policy. All roads necessary
for the use of the Property for its current purposes have been completed
and dedicated to public use and accepted by all Governmental Authorities. The
Property has, or is served by, parking to the extent required to comply with
all Legal Requirements.


          Section
4.17. Separate Lots


          The
Property is assessed for real estate tax purposes as one or more wholly
independent tax lot or lots, separate from any adjoining land or improvements
not constituting a part of such lot or lots,
and no other land or improvements is assessed and taxed together with the
Property or any portion thereof.


          Section
4.18. Assessments


          To
Borrower’s knowledge after due inquiry of the owner of the Property immediately
prior to the Closing Date, 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.


          Section
4.19. Insurance


          Borrower
has obtained and has delivered to Lender insurance certificates reflecting the insurance coverages, amounts and other
requirements set forth in this Agreement. To Borrower’s knowledge after due
inquiry (including, without limitation, due inquiry of Sotheby’s), no claims have been made under any of
the Policies, and to Borrower’s knowledge, no Person, including Borrower
and/or Sotheby’s, has done, by act or omission, anything which would materially
impair the coverage of any of the Policies.


          Section
4.20. Use of Property


          The
Property is used exclusively for auction house, restaurant, limited retail and
office purposes and other appurtenant and related uses.


          Section
4.21. Certificate of Occupancy; Licenses


          All
material certifications, permits, licenses and approvals, including, without
limitation, certificates of completion or occupancy and any applicable liquor
license required for the legal use,
occupancy and operation of the Property for the purpose intended herein, have
been obtained and are valid and in full force and effect. Borrower shall
keep and maintain (or cause to be kept and maintained) all licenses necessary
for the operation of the Property for the purpose intended herein. The use being made of the Property is in conformity
with the certificate of occupancy and any permits or licenses issued for
the Property.


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          Section
4.22. Flood Zone


          To
the best of Borrower’s knowledge, none of the Improvements on the Property are located
in an area identified by the Federal Emergency Management Agency as an area
having special flood hazards, or, if any
portion of the Improvements is located within such area, Borrower has obtained (or has caused to be
obtained) the insurance prescribed in Section 8.1(a)(i).


          Section
4.23. Physical Condition


          Except
as set forth in the Physical Conditions Report, to Borrower’s knowledge, 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. Except as set forth in the
Physical Conditions Report, to Borrower’s knowledge, there exists no
structural or other material defects or damages in the Property, as a result of a Casualty or otherwise, and whether
latent or otherwise. Borrower has not received 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.


          Section
4.24. Boundaries


          (a)
To the best of Borrower’s knowledge, none of the Improvements which were included in determining the appraised value of the
Property lie outside the boundaries and building restriction lines of
the Property to any material extent, and (b) no improvements on adjoining
properties encroach upon the Property and no easements or other encumbrances
upon the Property encroach upon any of the Improvements so as to materially
affect the value or marketability of the Property.


          Section
4.25. Leases and Rent Roll


          Borrower
has delivered to Lender a true, correct and complete (i) copy of the fully executed Sotheby’s Lease, which such Lease
represents the entire agreement of the parties thereto with respect to
the matters contained therein, and (ii) rent roll for the Property or similar occupancy statement relating to the Property
reasonably acceptable to Lender (each, a “Rent
Roll”) which
includes all Leases affecting the Property. Except as set forth in the Rent
Roll (as same has been updated by written notice thereof to Lender) delivered
to Lender on or prior to the Closing Date: (a) the Sotheby’s Lease is in full
force and effect; (b) the premises demised under the Sotheby’s Lease has been completed and Sotheby’s has accepted
possession of and is in occupancy of
all of its demised premises under the Sotheby’s Lease; (c) Sotheby’s has commenced the payment of rent under the
Sotheby’s
Lease, there are no offsets, claims or defenses
to the enforcement thereof, and Borrower has no monetary obligations to
Sotheby’s under the Sotheby’s Lease;
(d) all Rents due and payable under the Sotheby’s Lease have been paid and no
portion thereof has been paid for any period more than thirty (30) days in
advance;


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(e) the rent payable under Sotheby’s Lease is the
amount of fixed rent set forth in the Sotheby’s Lease, and there is no claim or basis for a claim by Sotheby’s for an
offset or adjustment to the rent; (f) Sotheby’s has not made any written
claim of a material default against Borrower which remains outstanding nor has
Borrower or Manager received, by telephonic, in-person, e-mail or other communication, any notice of a material
default under the Sotheby’s Lease; (g) to Borrower’s knowledge there is no present material default by Sotheby’s
under the Sotheby’s Lease; (h) all
security deposits, if any, under the Sotheby’s Lease have been collected by Borrower;
(i) Borrower is the sole owner of the entire landlord’s interest in the
Sotheby’s Lease; (j) the Sotheby’s Lease is
the valid, binding and enforceable obligation of Borrower and the Sotheby’s
Lease and the Sotheby’s Guaranty are the valid, binding and enforceable
obligation of Sotheby’s and Sotheby’s
Guarantor (as applicable) and there are no agreements with Sotheby’s or Sotheby’s Guarantor under the Sotheby’s Lease
or the Sotheby’s Guaranty (as applicable) other than as expressly set forth in the Sotheby’s Lease or the
Sotheby’s Guaranty (as applicable);
(k) to Borrower’s actual knowledge, no Person has any possessory interest in,
or right to occupy, the Property or
any portion thereof except under the terms of the Sotheby’s Lease or any
of the existing subleases thereof as set forth on Schedule 8.1(i) thereof; (1)
the Sotheby’s Lease does not contain any
option or offer to purchase or right of first refusal to purchase the
Property or any part thereof (other than the right of first offer set forth in
Section 23 thereof); (m) neither the
Sotheby’s Lease nor the Rents have been assigned, pledged or hypothecated except to Lender, and no other Person
has any interest therein except Sotheby’s; and (n) no conditions exist which
now give Sotheby’s the right to “go dark” pursuant to the provisions of
the Sotheby’s Lease.


          Section
4.26. Filing and Recording Taxes


          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 Mortgage, have been
paid or will be paid, and, under current Legal Requirements, the
Mortgage is enforceable in accordance with its terms by Lender (or any
subsequent holder thereof).


          Section
4.27. Management Agreement


          The Management Agreement is in full force and effect
and there is no default thereunder by any party thereto and, to Borrower’s
knowledge, no event has occurred that, with the passage of time and/or the
giving of notice would constitute a default thereunder. No management fees under
the Management Agreement are accrued and unpaid.


          Section
4.28. Illegal Activity


          No
portion of the Property has been or will be purchased with proceeds of any
illegal activity on the part of Borrower or its Affiliates, and no part
of the proceeds of the Loan will be used in connection with any illegal
activity.


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          Section
4.29. Construction Expenses


          Except
as set forth in Lender’s Title Insurance Policy, 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.


          Section
4.30. Personal Property


          Borrower
has paid in full for, and is the owner of, all Personal Property (other than tenants’ property) used in connection with the
operation of the Property, free and clear of any and all security interests,
liens or encumbrances, except for Permitted Encumbrances and the Lien
and security interest created by the Loan Documents.


          Section
4.31. Taxes


          Borrower
and Borrower Principal have filed all federal, state, county, municipal, and
city income, personal property and other tax
returns required to have been filed by them and have paid all taxes and
related liabilities which have become due pursuant to such returns or pursuant to any assessments received by them. Neither
Borrower nor Borrower Principal knows of any basis for any additional
assessment in respect of any such taxes and related liabilities for prior years.


          Section
4.32. Permitted Encumbrances


          None
of the Permitted Encumbrances, individually or in the aggregate, materially interferes with the benefits of the security
intended to be provided by the Loan Documents, impairs the use or the operation of the Property or impairs Borrower’s
ability to pay its obligations in a timely manner.


          Section
4.33. Federal Reserve Regulations


          Borrower
will use the proceeds of the Loan for the purposes set forth in Section 2.1(d)
hereof and not for any illegal activity. No part of the proceeds of the Loan
will be used for the purpose of purchasing or
acquiring any “margin stock” within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System or for any other purpose which
would be inconsistent with such Regulation U or any other Regulations of such
Board of Governors, or for any purposes prohibited by Legal Requirements or
prohibited by the terms and conditions of this Agreement or the other Loan
Documents.


          Section
4.34. Investment Company Act


          Borrower
is not (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 meaning 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.


          Section
4.35. Intentionally Omitted


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          Section 4.36. No Change in Facts or Circumstances;
Disclosure


          All
information submitted by Borrower or its agents to Lender and in all financial
statements, rent rolls (or similar occupancy statements), reports, certificates
and other documents submitted in connection with the Loan or in satisfaction of
the terms thereof and all statements of fact made by Borrower in this Agreement
or in any other Loan Document, are accurate, complete and correct in all
material respects. There has been no material adverse change 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 or might materially and adversely affect the
Property or the business operations or the financial condition of Borrower.
Borrower has disclosed to Lender all material facts and has not failed to
disclose any material fact that could cause any representation or warranty made
herein to be materially misleading.


          Section
4.37. Intellectual Property


          All
trademarks, trade names and service marks necessary to the business of Borrower
as presently conducted or as Borrower contemplates conducting its business are
in good standing and, to the extent of Borrower’s actual knowledge,
uncontested. Borrower has not infringed, is not infringing, and has not
received notice of infringement with respect to asserted trademarks, trade
names and service marks of others. To Borrower’s knowledge, there is no
infringement by others of trademarks, trade names and service marks of
Borrower.


          Section
4.38. Survey


          The
Survey for the Property delivered to Lender in connection with this Agreement
has been prepared in accordance with the provisions of Section 3.2(c) hereof or
such requirement has otherwise been waived by Lender, and to the knowledge of
Borrower does not fail to reflect any material matter affecting the Property or
the title thereto.


          Section
4.39. Survival


          Borrower
agrees that, unless expressly provided otherwise, all of the representations
and warranties of Borrower set forth in this Agreement and elsewhere in this
Agreement and in the other Loan Documents shall survive for so long as any portion
of the Debt remains owing to Lender. All representations, warranties, covenants
and agreements made in this Agreement or in the other Loan Documents by
Borrower shall be deemed to have been relied upon by Lender notwithstanding any
investigation heretofore or hereafter made by Lender or on its behalf.


          Section
4.40. Embargoed Persons Act.


          As
of the date hereof and at all times throughout the term of the Loan, including
after giving effect to any transfers of interests permitted pursuant to the
Loan Documents, (a) none of the funds or other assets of Borrower and Borrower
Principal constitute property of, or are beneficially owned, directly or
indirectly, by any person, entity or government subject to trade restrictions
under U.S. law, including but not limited to, the International Emergency
Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act,
50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated
thereunder with the result that the


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investment in Borrower or
Borrower Principal, as applicable (whether directly or indirectly), is
prohibited by law or the Loan made by Lender is in violation of law (“Embargoed
Person”); (b) no Embargoed Person has any interest of any nature whatsoever in
Borrower or Borrower Principal, as applicable, with the result that the
investment in Borrower or Borrower Principal, as applicable (whether directly
or indirectly), is prohibited by law or the Loan is in violation of law; and
(c) none of the funds of Borrower or Borrower Principal, as applicable, have
been derived from any unlawful activity with the result that the investment in
Borrower or Borrower Principal, as applicable (whether directly or indirectly),
is prohibited by law or the Loan is in violation of law. 


          Section
4.41. Patriot Act.


          All
capitalized words and phrases and all defined terms used in the USA Patriot Act
of 2001, 107 Public Law 56 (October 26, 2001) and in other statutes and all
orders, rules and regulations of the United States government and its various
executive departments, agencies and offices related to the subject matter of
the Patriot Act, including Executive Order 13224 effective September 24, 2001
(collectively referred to in this Section only as the “Patriot Act”) and are incorporated into
this Section. Each of Borrower and Borrower Principal hereby represents and
warrants that Borrower and Borrower Principal and each and every Person
affiliated with Borrower or Borrower Principal or that to Borrower’s knowledge
has an economic interest in Borrower, or, to Borrower’s knowledge, that has or
will have an interest in the transaction contemplated by this Agreement or in
the Property or will participate, in any manner whatsoever, in the Loan, is:
(i) not a “blocked” person listed in the Annex to Executive Order Nos. 12947,
13099 and 13224 and all modifications thereto or thereof (as used in this
Section only, the “Annex”); (ii)
in full compliance with the requirements of the Patriot Act and all other
requirements contained in the rules and regulations of the Office of Foreign
Assets Control, Department of the Treasury (as used in this Section only, “OFAC”); (iii) operated under policies,
procedures and practices, if any, that are in compliance with the Patriot Act
and available to Lender for Lender’s review and inspection during normal
business hours and upon reasonable prior notice; (iv) not in receipt of any
notice from the Secretary of State or the Attorney General of the United States
or any other department, agency or office of the United States claiming a
violation or possible violation of the Patriot Act; (v) not listed as a
Specially Designated Terrorist or as a “blocked” person on any lists maintained
by the OFAC pursuant to the Patriot Act or any other list of terrorists or
terrorist organizations maintained pursuant to any of the rules and regulations
of the OFAC issued pursuant to the Patriot Act or on any other list of
terrorists or terrorist organizations maintained pursuant to the Patriot Act;
(vi) not a person who has been determined by competent authority to be subject
to any of the prohibitions contained in the Patriot Act; and (vii) not owned or
controlled by or now acting and or will in the future act for or on behalf of
any person named in the Annex or any other list promulgated under the Patriot
Act or any other person who has been determined to be subject to the
prohibitions contained in the Patriot Act. Borrower covenants and agrees that
in the event Borrower receives any notice that Borrower Principal or Borrower
(or any of its beneficial owners or affiliates or participants) become listed
on the Annex or any other list promulgated under the Patriot Act or is
indicted, arraigned, or custodially detained on charges involving money
laundering or predicate crimes to money laundering, Borrower shall immediately
notify Lender. It shall be an Event of Default hereunder if Borrower, Borrower
Principal or any other party to any Loan Document becomes


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listed on any list promulgated under the Patriot Act
or is indicted, arraigned or custodially detained on charges involving money
laundering or predicate crimes to money laundering.


ARTICLE
5

BORROWER COVENANTS


          From
the date hereof and until repayment of the Debt in full and performance in full
of all obligations of Borrower under the Loan Documents or the earlier release
of the Lien of the Mortgage (and all related obligations) in accordance with
the terms of this Agreement and the other Loan Documents, Borrower hereby
covenants and agrees with Lender that:


          Section
5.1. Existence; Compliance with Legal Requirements


          (a)
Borrower 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 and comply with all Legal Requirements applicable to it and the
Property to the extent that the failure to do so would have a material adverse
effect on the value or quality of the Property or Borrower’s ability to repay
the Loan. Borrower hereby covenants and agrees not to commit, permit or suffer
to exist any act or omission affording any Governmental Authority the right of
forfeiture as against the Property or any part thereof or any monies paid in
performance of Borrower’s obligations under any of the Loan Documents.


          (b)
After prior written notice to Lender, Borrower, at its own expense, may contest
(or may permit Sotheby’s to contest (in accordance with the applicable terms
and conditions of the Sotheby’s Lease)) by appropriate legal proceeding,
promptly initiated and conducted in good faith and with due diligence, the
Legal Requirements affecting the Property, provided that (i) no Event of
Default or Sotheby’s Event of Default has occurred and is continuing; (ii) such
proceeding shall be permitted under and be conducted in accordance with the
provisions of any other instrument to which Borrower or the Property is subject
and shall not constitute a default thereunder (including, without limitation,
the Sotheby’s Lease); (iii) neither the Property, any part thereof or interest
therein, any of the tenants or occupants thereof, nor Borrower shall be
affected in any material adverse way as a result of such proceeding; (iv)
non-compliance with the Legal Requirements shall not impose civil or criminal
liability on Sotheby’s, Borrower or Lender; (v) Borrower shall have furnished
(or shall have caused to be furnished) the security as may be required in the
proceeding or by Lender to ensure compliance by Borrower and/or Sotheby’s with
the Legal Requirements; and (vi) Borrower shall have furnished (or shall have
caused to be furnished) to Lender all other items reasonably requested by
Lender.


          Section
5.2. Maintenance and Use of Property


          Subject
to Section 20.12 hereof, (i) Borrower shall cause the Property to be maintained
in a good and safe condition and repair, (ii) the Improvements and the Personal
Property shall not be removed, demolished or other than in accordance with the
provisions of Section 5.21, materially altered (except for normal replacement
of the Personal Property) without the prior written consent of Lender, and
(iii) if under applicable zoning provisions the use of all or any portion of
the Property is or shall become a nonconforming use, Borrower will not cause or
permit the nonconforming use to be discontinued or the nonconforming
Improvement to be


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abandoned without the
express written consent of Lender (which such consent (a) prior to the Optional
Prepayment Date, shall not be unreasonably withheld, conditioned or delayed, or
(b) from and after the Optional Prepayment Date, may be granted or withheld in
Lender’s sole and absolute discretion).


          Section
5.3. Waste


          Borrower
shall not knowingly commit (or permit to be committed) or suffer (or permit to
be suffered) any waste of the Property or make or permit any change in the use
of the Property which will in any way materially increase the risk of fire or
other hazard arising out of the operation of the Property, or take (or permit
to be taken) any action that might invalidate or give cause for cancellation of
any Policy, or do or permit to be done thereon anything that may in any way
impair the value of the Property or the security for the Loan. Borrower will
not, without the prior written consent of Lender, permit any drilling or
exploration for or extraction, removal, or production of any minerals from the
surface or the subsurface of the Property, regardless of the depth thereof or
the method of mining or extraction thereof.


          Section
5.4. Taxes and Other Charges


          (a)
Borrower shall pay (or cause to be paid) all Taxes and Other Charges now or
hereafter levied or assessed or imposed against the Property or any part
thereof as the same become due and payable; provided, however, Borrower’s
obligation to directly pay Taxes shall be suspended for so long as (i) the same
are paid by Sotheby’s pursuant to the terms of the Sotheby’s Lease, or (ii)
funds sufficient to pay the same have been deposited with Lender pursuant to
Section 9.6 hereof. Borrower shall furnish (or caused to be furnished) to Lender
receipts for the payment of the Taxes and the Other Charges prior to the date
the same shall become delinquent (provided, however, that Borrower is not
required to furnish such receipts for payment of Taxes in the event that such
Taxes have been paid by Lender pursuant to Section 9.6 hereof). Borrower shall
not suffer and shall promptly cause to be paid and discharged any Lien or
charge whatsoever which may be or become a Lien or charge against the Property,
and shall, subject to Section 3.5(b) of the Mortgage and Sections 5.1(b) and
5.4(b) hereof, promptly pay for all utility services provided to the Property.


          (b)
After prior written notice to Lender, Borrower, at its own expense, may (or may
permit Sotheby’s to) contest by appropriate legal proceeding, promptly
initiated and conducted in good faith and with due diligence, the amount or
validity or application in whole or in part of any Taxes or Other Charges,
provided that (i) no Event of Default or Sotheby’s Event of Default has
occurred and remains uncured; (ii) such proceeding shall be permitted under and
be conducted in accordance with the provisions of any other instrument to which
Borrower is subject (including, without limitation, the Sotheby’s Lease) and
shall not constitute a default thereunder and such proceeding shall be
conducted in accordance with all applicable Legal Requirements; (iii) neither
the Property nor any part thereof or interest therein will be in danger of
being sold, forfeited, terminated, canceled or lost; (iv) Borrower shall
promptly upon final determination thereof pay (or cause to be paid) the amount
of any such Taxes or Other Charges, together with all costs, interest and
penalties which may be payable in connection therewith; (v) such proceeding
shall suspend the collection of such contested Taxes or Other Charges from the
Property; and (vi) Borrower shall furnish (or cause to be furnished) such
security as may be


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required in the proceeding,
or deliver (or cause to be delivered) to Lender such reserve deposits as may be
requested by Lender, to insure the payment of any such Taxes or Other Charges,
together with all interest and penalties thereon (unless Borrower has paid (or
caused to be paid) all of the Taxes or Other Charges under protest). Lender may
pay over any such cash deposit or part thereof held by Lender to the claimant
entitled thereto at any time when, in the judgment of Lender, the entitlement
of such claimant is established or the Property (or part thereof or interest
therein) shall be in danger of being sold, forfeited, terminated, canceled or
lost or there shall be any danger of the Lien of the Mortgage being primed by
any related Lien.


          Section
5.5. Litigation


          On
and after the date hereof, Borrower shall give prompt written notice to Lender
of any litigation or governmental proceedings pending or threatened in writing
against Borrower or against Sotheby’s (of which it has actual notice) which
might materially adversely affect Borrower’s or Sotheby’s condition (financial
or otherwise) or business or the Property.


          Section
5.6. Access to Property


          Subject
to the rights of Tenants under Leases, Borrower shall permit agents,
representatives and employees of Lender to inspect the Property or any part
thereof at reasonable hours upon reasonable advance notice.


          Section
5.7. Notice of Default


          Borrower
shall promptly advise Lender of any material adverse change in the condition
(financial or otherwise) of Borrower, any Borrower Principal, Sotheby’s (of
which it has actual notice) or the Property or of the occurrence of any
Default, Event of Default or Sotheby’s Event of Default of which Borrower has
knowledge.


          Section
5.8. Cooperate in Legal Proceedings


          Borrower
shall at Borrower’s expense cooperate fully with Lender with respect to any
proceedings before any court, board or other Governmental Authority which may
in any way affect the rights of Lender hereunder or any rights obtained by
Lender under any of the other Loan Documents and, in connection therewith,
permit Lender, at its election, to participate in any such proceedings.


          Section
5.9. Performance by Borrower


          Borrower
shall in a timely manner observe, perform and fulfill each and every covenant,
term and provision to be observed and performed by Borrower under this
Agreement and the other Loan Documents and any other agreement or instrument
affecting or pertaining to the Property and any amendments, modifications or
changes thereto.


          Section
5.10. Awards; Insurance Proceeds


          Subject
to Section 20.12 hereof, Borrower shall cooperate with Lender in obtaining for
Lender the benefits of any Awards or Insurance Proceeds lawfully or equitably
payable in


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connection with the
Property, and Lender shall be reimbursed for any expenses incurred in
connection therewith (including reasonable, actual attorneys’ fees and disbursements,
and the payment by Borrower of the expense of an appraisal on behalf of Lender
in case of a Casualty or Condemnation affecting the Property or any part
thereof) out of such Awards or Insurance Proceeds.


          Section
5.11. Financial Reporting


          (a)
Borrower and Borrower Principal shall keep adequate books and records of
account in accordance with GAAP or on a federal income tax basis, or in
accordance with other methods acceptable to Lender in its sole discretion,
consistently applied and shall furnish to Lender:


	
 

	
 


	
 

	
          (i)
 prior to a Securitization, at the request of Lender, monthly, and following a
 Securitization, quarterly and annual certified rent rolls signed and dated by
 Borrower, detailing the names of all Tenants of the Improvements, the portion
 of Improvements (in terms of square footage) occupied by each Tenant, the
 base rent, additional rent and any other charges payable under each Lease
 (including annual store sales required to be reported by Tenant under any
 Lease), and the term of each Lease, including the commencement and expiration
 dates and any tenant extension, expansion or renewal options, the extent to
 which any Tenant is in default under any Lease, and any other information as
 is reasonably required by Lender, within twenty (20) days after the end of
 each calendar month, thirty (30) days after the end of each fiscal quarter or
 sixty (60) days after the close of each fiscal year of Borrower, as
 applicable; provided, however, Borrower shall only be required to deliver the
 information specified in the foregoing Section 5.11(a)(i) if the Sotheby’s
 Lease is no longer in full force or effect;


	
 

	
 


	
 

	
          (ii)
 prior to a Securitization, at the request of Lender, monthly, and following a
 Securitization, quarterly and annual operating statements of the Property,
 prepared and certified by Borrower in the form required by Lender (with the
 annual operating statement prepared and audited by an Acceptable Accountant),
 detailing the revenues received, the expenses incurred and the net operating
 income before and after debt service (principal and interest) and major
 capital improvements for the period of calculation and containing appropriate
 year-to-date information, within twenty (20) days after the end of each
 calendar month, thirty (30) days after the end of each fiscal quarter or
 sixty (60) days after the close of each fiscal year of Borrower, as
 applicable;


	
 

	
 


	
 

	
          (iii)
 (I) quarterly and annual balance sheets, profit and loss statements,
 statements of cash flows, and statements of change in financial position of
 Borrower in the form required by Lender (with the annual financial statements
 prepared and audited by an Acceptable Accountant), within thirty (30) days
 after the end of each fiscal quarter or ninety (90) days after the close of
 each fiscal year of Borrower, as the case may be, and (II) annual balance
 sheets and Net Worth Statements of each Borrower Principal in the form
 approved by Lender, prepared by a CPA reasonably acceptable to Lender and
 certified by Borrower Principal, within ninety (90) days after the close of
 each fiscal year of each Borrower Principal; and





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          (iv)
 an Annual Budget not later than thirty (30) days prior to the commencement of
 each fiscal year of Borrower in form reasonably satisfactory to Lender;
 provided, that Lender shall have the right to approve each Annual Budget (A)
 covering any period of time after the Optional Prepayment Date, (B) if a
 Mezzanine Borrower incurs a Permitted Mezzanine Financing, or (C) if the
 Sotheby’s Lease is no longer in full force and effect; and Lender’s approval,
 in each case, shall not be unreasonably withheld, conditioned or delayed.





          (b)
Upon request from Lender made during any period that the Sotheby’s Lease is no
longer in full force or effect, Borrower shall promptly furnish to Lender:


	
 

	
 


	
 

	
          (i)
 a property management report for the Property, showing the number of
 inquiries made and/or rental applications received from tenants or
 prospective tenants and deposits received from tenants and any other
 information requested by Lender, in reasonable detail and certified by
 Borrower under penalty of perjury to be true and complete, but no more
 frequently than quarterly;


	
 

	
 


	
 

	
          (ii)
 an accounting of all security deposits held in connection with any Lease of
 any part of the Property, including the name and identification number of the
 accounts in which such security deposits are held, the name and address of
 the financial institutions in which such security deposits are held and the
 name of the Person to contact at such financial institution, along with any
 authority or release necessary for Lender to obtain information regarding
 such accounts directly from such financial institutions; and


	
 

	
 


	
 

	
          (iii)
 a report of all letters of credit provided by any Tenant in connection with
 any Lease of any part of the Property, including the account numbers of such
 letters of credit, the names and addresses of the financial institutions that
 issued such letters of credit and the names of the Persons to contact at such
 financial institutions, along with any authority or release necessary for
 Lender to obtain information regarding such letters of credit directly from
 such financial institutions.





          (c)
Borrower shall comply with the following:


	
 

	
 


	
 

	
          (i)
 If requested by Lender, Borrower shall provide Lender, promptly upon request,
 with the following financial statements if, at the time a Disclosure Document
 is being prepared for a Securitization, it is expected that the principal
 amount of the Loan when combined with the principal amount of any Affiliated
 Loans at the time of Securitization may, or if the principal amount of the
 Loan when combined with the principal amount of any Affiliated Loans at any
 time during which the Loan and any Affiliated Loans are included in a
 Securitization does, equal or exceed 20% of the aggregate principal amount of
 all mortgage loans included or expected to be included, as applicable, in the
 Securitization:








	
 

	
 

	
 


	
 

	
 

	
          (A)
 A balance sheet with respect to the Property for the two most recent fiscal
 years, meeting the requirements of Section 210.3-01 of Regulation S-X of the
 Securities Act and statements of income and statements of cash flows with
 respect to the Property for the three most recent fiscal years, meeting the





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requirements of Section
210.3-02 of Regulation S-X, and, to the extent that such balance sheet is
more than 135 days old as of the date of the document in which such financial
statements are included, interim financial statements of the Property meeting
the requirements of Section 210.3-01 and 210.3-02 of Regulation S-X (all of
such financial statements, collectively, the “Standard Statements”);
provided, however, that with respect to a Property (other than properties
that are hotels, nursing homes, or other properties that would be deemed to
constitute a business and not real estate under Regulation S-X or other legal
requirements) that has been acquired by Borrower from an unaffiliated third
party (such Property, “Acquired Property”), as to which the other conditions
set forth in Section 210.3-14 of Regulation S-X for provision of financial
statements in accordance with such Section have been met, in lieu of the
Standard Statements otherwise required by this section, Borrower shall
instead provide the financial statements required by such Section 210.3-14 of
Regulation S-X (“Acquired Property Statements”).  


	
 

	
 

	
 


	
 

	
 

	
          (B)
 Not later than 30 days after the end of each fiscal quarter following the
 date hereof, a balance sheet of the Property as of the end of such fiscal
 quarter, meeting the requirements of Section 210.3-01 of Regulation S-X, and
 statements of income and statements of cash flows of the Property for the
 period commencing following the last day of the most recent fiscal year and
 ending on the date of such balance sheet and for the corresponding period of
 the most recent fiscal year, meeting the requirements of Section 210.3-02 of
 Regulation S-X (provided, that if for such corresponding period of the most
 recent fiscal year Acquired Property Statements were permitted to be provided
 hereunder pursuant to subsection (i) above, Borrower shall instead provide
 Acquired Property Statements for such corresponding period).


	
 

	
 

	
 


	
 

	
 

	
          (C)
 Not later than 75 days after the end of each fiscal year following the date
 hereof, a balance sheet of the Property as of the end of such fiscal year,
 meeting the requirements of Section 210.3-01 of Regulation S-X, and
 statements of income and statements of cash flows of the Property for such
 fiscal year, meeting the requirements of Section 210.3-02 of Regulation S-X.


	
 

	
 

	
 


	
 

	
 

	
          (D)
Within ten Business Days after notice from Lender in connection with the
Securitization of this Loan, such additional financial statements, such that,
as of the date (each an “Offering Document Date”) of each Disclosure
Document, Borrower shall have provided Lender with all financial statements
as described in subsection (f)(i) above; provided that the fiscal year and
interim periods for which such financial statements shall be provided shall
be determined as of such Offering Document Date. 


	
 

	
 

	
 


	
 

	
          (ii)
 If requested by Lender, Borrower shall provide Lender, promptly upon request,
 with summaries of the financial statements referred to in Section 5.11(c)
 hereof if, at the time a Disclosure Document is being prepared for a
 Securitization, it is expected that the principal amount of the Loan and any
 Affiliated Loans at the time of Securitization may, or if the principal
 amount of the Loan and any Affiliated Loans at any





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time during which the Loan and
 any Affiliated Loans are included in a Securitization does, equal or
 exceed 10% (but is less than 20%) of the aggregate principal amount of all mortgage loans included or expected to be
 included, as applicable, in a Securitization, Such summaries shall
 meet the requirements for “summarized financial information,” as defined in
 Section 210.1-02(bb) of Regulation S-X, or such other requirements as may be
 determined to be necessary or appropriate by Lender.


	
 

	
 


	
 

	
          (iii)
 All financial statements provided by Borrower hereunder pursuant to Section
 5.11(c)(i) and (ii) hereof shall be prepared in accordance with GAAP, and
 shall meet the requirements of Regulation S-X and other applicable legal
 requirements. All financial statements referred to in Section
 5.11(c)(i)(A)and (C) above shall be audited by Acceptable Accountants in accordance with Regulation S-X and all other
 applicable legal requirements, shall be accompanied by the manually
 executed report of the independent accountants thereon, which report shall
 meet the requirements of Regulation S-X and all other applicable legal requirements, and shall be further accompanied
 by a manually executed written
 consent of the Acceptable Accountants, in form and substance reasonably
 acceptable to Lender, to the inclusion of such financial statements in any
 Disclosure Document and any Exchange Act Filing and to the use of the name of
 such Acceptable Accountants and the
 reference to such Acceptable Accountants as “experts” in any Disclosure
 Document and Exchange Act Filing (as defined below), all of which shall
 be provided at the same time as the related financial statements are required
 to be provided. All financial statements
 (audited or unaudited) provided by Borrower under this Section 5.11
 shall be certified by the chief financial officer or administrative member of Borrower, which certification shall state
 that such financial statements meet the requirements set forth in the
 first sentence of this Section 5.1l(c)(iii).


	
 

	
 


	
 

	
          (iv)
 If requested by Lender, Borrower shall provide Lender, promptly upon request, with any other or additional financial
 statements, or financial, statistical or operating information, as
 Lender shall determine to be required pursuant to Regulation S-X or any
 amendment, modification or replacement thereto or other legal requirements in
 connection with any Disclosure Document or
 any filing under or pursuant to the Exchange
 Act in connection with or relating to a Securitization (hereinafter an “Exchange Act
 Filing”) or as shall otherwise be reasonably requested by Lender.


	
 

	
 


	
 

	
          (v)
 In the event Lender determines, in connection with a Securitization, that the
 financial statements required in order to comply with Regulation S-X or other
 legal requirements are other than as provided herein, then notwithstanding
 the provisions of Section 5.11(c) hereof, Lender may request, and Borrower
 shall promptly provide, such combination of Acquired Property Statement
 and/or Standard Statements or such other financial
 statements as Lender determines to be necessary or appropriate for such compliance.


	
 

	
 


	
 

	
          (vi)
 Any reports, statements or other information required to be delivered under this Agreement shall be delivered in paper
 form and in the event that Lender requires financial statements in
 connection with subsection (c) above because the Loan when combined with the principal amount of any Affiliated Loans equal
 or exceed 20% of the aggregate
 principal amount of all mortgage loans included in a Securitization





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(defined below), Borrower shall
 deliver such reports, statements and other information (A) on a diskette, and (B) if requested by
 Lender and within the capabilities of Borrower’s data systems without
 change or modification thereto, in electronic form and prepared using
 Microsoft Word for Windows or WordPerfect for Windows files (which files may
 be prepared using a spreadsheet program and saved as word processing files).





          (d)
Borrower shall furnish Lender with such other additional financial or
management information (including state and
federal tax returns) as may, from time to time, be reasonably required by Lender in form and substance
reasonably satisfactory to Lender (including, without limitation, any financial
reports required to be delivered by any Tenant or any guarantor of any Lease
pursuant to the terms of such Lease), and shall furnish to Lender and its
agents convenient facilities for the examination and audit of any such books
and records.


          (e)
All items requiring the certification
of Borrower shall, except where Borrower is an individual, require a certificate executed by the general partner,
managing member or chief executive
officer of Borrower, as applicable (and the same rules shall apply to any sole shareholder,
general partner or managing member which is not an individual).


          Section
5.12. Estoppel Statement


          (a)    
(i) After request by Lender, Borrower
shall within ten (10) Business Days furnish Lender with a statement,
duly acknowledged and certified, setting forth (1) the amount of the original principal amount of the Note, (2) the
current rate of interest on the Note, (3) the unpaid principal amount of the Note, (4) the date installments of
interest and/or principal were last paid, (5) any offsets or defenses to
the payment of the Debt, if any, and (6) that the Note, this Agreement, the
Mortgage and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving
particulars of such modification; provided, that, except in connection
with a Securitization or a Default or an Event of Default, such request shall
be made no more frequently than once per calendar year.


                    (ii)
Upon request by Borrower made no more frequently than once per calendar year, Lender, within twenty (20) Business
Days of such request, shall provide Borrower with an informational statement setting forth: (1) the unpaid principal
amount of the Note, (2) the current
interest rate of the Note, and (3) the maturity date of the Note, and the date installments
of interest and/or principal were last paid; provided, that, such statement
shall (I) be made only to Lender’s actual knowledge and shall be for
informational purposes only, (II) not be binding
on Lender or have the effect of an estoppel and (III) not waive, amend or
otherwise modify Borrower’s obligations contained herein and in the
other Loan Documents.


          (b)    
(i) So long as the Sotheby’s Lease is
in full force and effect, Borrower shall use commercially reasonable
efforts (which such efforts (in and of themselves) shall not require Borrower to default any Tenant under its Lease or
any guarantor under any related guaranty) to deliver to Lender, promptly upon request, duly executed estoppel
certificates from any one or more Tenants (including, without
limitation, Sotheby’s) or related guarantors (including, without limitation, the Sotheby’s Guarantor) as required by
Lender attesting to such facts regarding the related Lease or guaranty (as applicable) as Lender may require and as
to which such Tenant or


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guarantor (as applicable) shall be required to attest
under its Lease or related guaranty (as applicable).


                    (ii)
During any period that the Sotheby’s Lease is no longer in full force or effect, Borrower shall use its best efforts to deliver
to Lender, promptly upon request, duly executed estoppel certificates
from any one or more Tenants as required by Lender attesting to such facts regarding the related Lease as Lender
may require, including, but not limited to attestations that each Lease covered thereby is in full force and
effect with no defaults thereunder on the part of any party, that none of the
Rents have been paid more than one month in advance, except as security, and
that the Tenant claims no defense or offset against the full and timely
performance of its obligations under the Lease.


          Section
5.13. Leasing Matters.


          (a)
To the extent that the Sotheby’s Lease is in full force and effect, the
following provisions shall apply:


	
 

	
 

	
 


	
 

	
          (i)      
(A) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written
 consent of Lender (which such consent (a) prior to the Optional Prepayment Date, shall not be unreasonably
 withheld, conditioned or delayed,
 or (b) from and after the Optional Prepayment Date, may be granted or withheld in Lender’s sole and absolute
 discretion), grant any approval under (or permit any approval to be deemed granted under), enter
 into, enter into any agreement with respect
 to (including, without limitation, any non-disturbance agreement), renew,
 extend, amend, modify, permit any
 assignment of, waive any provisions of, terminate, exercise any
 recapture or enforcement rights with respect to (including, without
 limitation, any exercise of rights after
 a Tenant default), reduce Rents under, accept a surrender of space under,
 or shorten the term of, the Sotheby’s Lease or any Major Sotheby’s Sublease.


	
 

	
 

	
 


	
 

	
 

	
          (B)
 Notwithstanding anything to the contrary contained herein, Borrower may consent to Sotheby’s entering into a
 proposed sublease of the Sotheby’s
 Lease (other than a Major Sotheby’s Sublease) (such sublease, a “Sotheby’s Sublease”) and any renewal or
 extension of an existing sublease (other than a Major Sotheby’s
 Sublease) of the Sotheby’s Lease (such sublease, a “Renewal Sublease”) without the prior written consent of
Lender,
 provided that Borrower has determined, in its reasonable discretion, that the
 conditions set forth in sub-clauses (A) through (F) of Section 17(j)
 of the Sotheby’s Lease have been satisfied
 in all material respects, provided, further, that from and after the Optional Prepayment Date, Borrower shall not
 consent to any Sotheby’s Sublease or Renewal Sublease without the prior
 written consent of Lender, which consent may be granted or withheld in
 Lender’s sole discretion.


	
 

	
 

	
 


	
 

	
          (ii)
 Borrower (1) shall observe and perform all the obligations imposed upon the landlord under the Leases and shall not do
 or permit to be done anything to impair the value of any of the Leases as security for the Debt; (2) shall promptly
 send copies to Lender of all notices of default or requests for landlord
 consent which Borrower shall send
 or receive thereunder; (3) shall enforce all of the material terms, covenants
 and





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conditions contained in the
 Leases upon the part of the tenant thereunder to be observed or
 performed; (4) shall not collect any of the Rents more than one (1) month in
 advance (except security deposits shall not be deemed Rents collected in
 advance); (5) shall not execute any other assignment of the landlord’s
 interest in any of the Leases or the Rents; and
 (6) shall not consent to any assignment of or subletting under any Leases
 without the prior written consent of Lender.


	
 

	
 

	
 

	
 


	
 

	
          (iii)
 Notwithstanding anything to the contrary contained herein:


	
 

	
 

	
 

	
 


	
 

	
 

	
          (A)
 Borrower shall not permit Sotheby’s
 or Sotheby’s Guarantor to be released from liability under the Sotheby’s
 Lease in connection with an assignment
 of the Sotheby’s Lease pursuant to Section 17(n)(2) and 17(n)(3) of the
 Sotheby’s Lease unless (1) Lender shall have received evidence that all of
 the conditions thereto set forth in Section 17(n)(2) and 17(n)(3), as
 applicable, of the Sotheby’s Lease have been satisfied; (2) Lender shall have
 received confirmation from a majority of the Rating Agencies rating the
 Securities that such assignment will not
 result in a downgrade, withdrawal or qualification of the then current ratings issued in connection with a
 Securitization, or if a Securitization has not occurred, any ratings to be assigned in connection with a
 Securitization; provided, that (I)
 Lender shall, at Borrower’s cost and expense (which such cost and expense shall only include the reasonable,
 out-of-pocket, third party costs and expenses
 incurred by Lender), seek such confirmation from each of the Rating Agencies rating (or that are anticipated to rate)
 the Securities and shall communicate
 to Borrower the response of each of such Rating Agencies to the same
 within ninety (90) days of Lender’s receipt of written notice from Borrower (which such notice shall be accompanied by the
 information listed in the immediately
 following clause (3) and shall be marked in bold lettering with the following language: “LENDER’S RESPONSE IS
 REQUIRED WITHIN NINETY (90) DAYS OF
 RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT
 BETWEEN THE UNDERSIGNED AND LENDER” and
 the envelope containing the request must be marked “PRIORITY”) and (II)
 if Lender shall fail to so communicate such response within the aforesaid time period in accordance with clause (I) above,
 clause (2) hereof shall be deemed to be satisfied by Borrower; (3)
 Borrower shall have provided (or caused to
 be provided) to Lender copies of all documentation and other information required to be provided to
 Borrower and Lender (as Fee Mortgagee)
 pursuant to Section 17(n)(2)(vii) and (viii) of the Sotheby’s Lease; and (4) Lender, as Fee Mortgagee, shall have
 reasonably determined that any proposed
 assignee and/or substitute guarantor is a reputable person of good character and business dealings pursuant to
 Section 17(n)(2)(v) of the Sotheby’s Lease;
 and


	
 

	
 

	
 

	
 


	
 

	
 

	
          (B)
 Borrower shall not, except as
 provided in Section 5.13(a)(iii)(A) above,
 release, waive, amend, modify, terminate or otherwise alter the Sotheby’s Guaranty in any manner (1) without obtaining
 Lender’s prior written consent, which
 such consent shall not be unreasonably withheld, conditioned or delayed, and (2) unless Lender shall have received
 written confirmation from the Rating





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Agencies rating the Securities
 that the same will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current
 ratings issued in connection with a Securitization, or if a
 Securitization has not occurred, any ratings to be assigned in connection
 with a Securitization.





          (b)
To the extent that the Sotheby’s Lease is no longer in full force and effect,
the following provisions shall
apply:


	
 

	
 


	
 

	
          (i)
 Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a “Renewal
Lease”)) without the prior
 written consent of Lender, provided such proposed Lease or Renewal Lease (1)
 provides for rental rates and terms
 comparable to existing local market rates and terms (taking into account the
 type and quality of the tenant) as of the date such Lease is executed by
 Borrower (unless, in the case of a
 Renewal Lease, the rent payable during such renewal, or a formula or other
 method to compute such rent, is provided for in the original Lease), (2) is
 an arm’s-length transaction with a
 bona fide, independent third party tenant, (3) does not have a materially adverse effect on the value of the
 Property taken as a whole, (4) is subject and subordinate to the Mortgage and the Tenant thereunder agrees to attorn
 to Lender, (5) does not contain any
 option, offer, right of first refusal, or other similar right to acquire all or any portion of the Property, (6) has a
 base term of less than fifteen (15) years including options to renew,
 (7) has no rent credits, free rents or concessions granted thereunder (other than those granted in
 accordance with then current market standards for Leases similar to the
 proposed Lease leasing space in properties similar to the Property), and (8)
 is written on the standard form of lease approved by Lender, as such form may
 be modified to incorporate (I)
 economic terms consistent with this Section, and (II) such other reasonable
 and customary changes to said form which are consistent with the provisions
 of this Section and would not, in Borrower’s reasonable judgement, have a material adverse effect on the value or quality
 of the Property or Borrower’s ability to repay the Loan. All proposed Leases which do not satisfy the
 requirements set forth in this
 subsection shall be subject to the prior approval of Lender and its counsel,
 at Borrower’s expense, which such
 approval shall not be unreasonably withheld, conditioned or delayed.
 Borrower shall promptly deliver to Lender copies of all Leases which are
 entered into pursuant to this subsection together with Borrower’s
 certification that it has satisfied all of the conditions of this Section.
 Notwithstanding anything herein to the
 contrary, from and after the Optional Prepayment Date, Borrower shall not
 enter into any proposed Lease or
 Renewal Lease without obtaining Lender’s prior written consent, which consent may be granted or withheld
 in Lender’s sole and absolute discretion.


	
 

	
 


	
 

	
          (ii)
 Borrower (1) shall observe and perform all the obligations imposed upon the landlord under the Leases and shall not do
 or permit to be done anything to impair the value of any of the Leases as security for the Debt; (2) shall promptly
 send copies to Lender of all
 notices of default which Borrower shall send or receive thereunder; (3) shall
 enforce all of the material terms, covenants and conditions contained
 in the Leases upon the part of the tenant thereunder to be observed or
 performed; (4) shall not collect any of the
 Rents more than one (1) month in advance (except security deposits shall not
 be deemed Rents collected in advance); (5) shall not execute any other
 assignment of the





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landlord’s interest in any of
 the Leases or the Rents; and (6) shall not consent to any assignment of or subletting under any Leases
 not in accordance with their terms, without the prior written consent of
 Lender.


	
 

	
 


	
 

	
          (iii)
 Borrower may, without the prior written consent of Lender, amend, modify
 or waive the provisions of any Lease or terminate, reduce Rents under, accept
 a surrender of space under, or shorten
 the term of, any Lease (including any guaranty, letter of credit or other credit support with respect
 thereto) provided that such action (taking into account, in the case of a termination, reduction in rent,
 surrender of space or shortening of term, the planned alternative use
 of the affected space) does not have a materially
 adverse effect on the value of the Property taken as a whole, and provided
 that such Lease, as amended,
 modified or waived, is otherwise in compliance with the requirements
 of this Agreement and any subordination agreement binding upon Lender with respect to such Lease. A termination of a
 Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an
 action which has a materially adverse effect on the value of the Property
 taken as a whole. Any amendment, modification,
 waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set
 forth in this subsection shall be subject to the prior approval of Lender and its counsel, at
 Borrower’s expense, which such approval shall not be unreasonably withheld, conditioned or delayed. Borrower
 shall promptly deliver to Lender copies of amendments, modifications and
 waivers which are entered into pursuant to this subsection together
 with Borrower’s certification that it has satisfied all of the conditions of
 this subsection. Notwithstanding anything herein to the contrary, from and after the Optional Prepayment Date,
 Borrower shall not amend, modify or waive
 the provisions of any Lease or terminate, reduce Rents under, accept a
 surrender of space under, or shorten
 the term of, any Lease without the prior written consent of Lender, which consent may be granted or withheld
 in Lender’s sole and absolute discretion.


	
 

	
 


	
 

	
          (iv)
 Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender
 (which such consent (a) prior to the Optional
 Prepayment Date, shall not be unreasonably withheld, conditioned or delayed, or (b) from and after the Optional Prepayment
 Date, may be granted or withheld in Lender’s sole and absolute
 discretion), enter into, renew, extend, amend, modify, waive any provisions
 of, terminate, reduce Rents under, accept a surrender of space under, or shorten the term of, any Major Lease.





          (c)
Notwithstanding anything to the contrary contained herein, to the extent
Lender’s prior approval is required
for any leasing matters set forth in this Section 5.13, Lender shall have
twenty (20) days from receipt of written request and all required information
and documentation relating thereto in
which to approve or disapprove such matter, provided that such request to Lender
is marked in bold lettering with the following language: “LENDER’S RESPONSE IS REQUIRED WITHIN TWENTY (20) DAYS OF RECEIPT
OF THIS
NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER”
and the envelope containing the request must be marked “PRIORITY”. In the event
that Lender fails to approve or disapprove
the leasing matter in question within such time (which such disapproval
(if applicable) shall set forth the reasons for the same), Lender’s approval
shall


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be deemed given for all purposes.
Borrower shall provide Lender with such information and documentation as
may be reasonably required by Lender, including, without limitation, lease comparables and other market information as
reasonably required by Lender.


          Section
5.14. Property Management


          (a)
Borrower shall (i) promptly perform
and observe all of the covenants required to be performed and observed by it
under the Management Agreement and do all things necessary to preserve and to
keep unimpaired its material rights thereunder; (ii) promptly notify Lender of any default under the Management Agreement of which
it is aware; (iii) promptly deliver to Lender
a copy of any notice of default or other material notice received by Borrower
under the Management Agreement; (iv) promptly give notice to Lender of any
notice or information that Borrower receives which indicates that Manager is
terminating the Management Agreement or that Manager is otherwise discontinuing its management of the Property;
and (v) promptly enforce the
performance and observance of all of the covenants required to be performed and
observed by Manager under the
Management Agreement.


          (b)
If at any time, (i) Manager shall
become insolvent or a debtor in a bankruptcy proceeding; (ii) an Event of Default has occurred and is continuing and
Lender has accelerated the Loan;
(iii) a material default has occurred and is continuing beyond applicable
notice and cure periods (if any) under
the Management Agreement, or (iv) the Optional Prepayment Date shall occur; Borrower shall, at the request of
Lender, terminate the Management Agreement upon thirty (30) days prior notice to Manager and replace Manager with a
Qualified Manager approved by Lender
on terms and conditions satisfactory to Lender, it being understood and agreed that the management fee for such
replacement manager shall not exceed then prevailing market rates.


          (c)
Intentionally Omitted.


          (d)
Borrower shall not, without the prior
written consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed): (i)
surrender, terminate or cancel the
Management Agreement or otherwise replace Manager or enter into any other
management agreement with respect to the Property; (ii) reduce or
consent to the reduction of the term of the Management
Agreement; (iii) increase or consent to the increase of the amount of any
charges under the Management
Agreement; or (iv) otherwise materially modify, change, supplement, alter
or amend, or waive or release any of its rights and remedies under, the
Management Agreement in any material
respect. In the event that Borrower replaces Manager at any time during the term of Loan pursuant to this
subsection, such Manager shall be a Qualified Manager.


          Section
5.15. Liens


          Borrower
shall not, without the prior written consent of Lender, create, incur, assume
or suffer to exist any Lien on any
portion of the Property or permit any such action to be taken, except Permitted Encumbrances.


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          Section
5.16. Debt Cancellation


          Borrower
shall not cancel or otherwise forgive or release any claim or debt (other than termination of Leases in accordance herewith) owed
to Borrower by any Person, except for adequate consideration and in the
ordinary course of Borrower’s business.


          Section
5.17. Zoning


          Borrower
shall not initiate or consent to any zoning reclassification of any portion of
the Property or seek any variance under any
existing zoning ordinance or use or permit the use of any portion of the Property in any manner that
could result in such use becoming a non-conforming use under any zoning
ordinance or any other applicable land use law, rule or regulation, without the prior written consent of
Lender.


          Section
5.18. ERISA


          (a)
Borrower shall not engage in any
transaction which would cause any obligation, or action taken or to be
taken, hereunder (or the exercise by Lender of any of its rights under the Note, this Agreement or the other Loan Documents)
to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA.


          (b)
Borrower further covenants and agrees to deliver to Lender such
certifications or other evidence from time to
time throughout the term of the Loan, as reasonably requested by Lender, that (i) Borrower is not and does not
maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title
I of ERISA, or a “governmental plan” within the meaning of Section 3(3) of ERISA; (ii) Borrower is not subject to state
statutes regulating investments and
fiduciary obligations with respect to governmental plans; and (iii) one or more
of the following circumstances is
true:


	
 

	
 

	
 


	
 

	
 

	
          (A)
 Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2);


	
 

	
 

	
 


	
 

	
 

	
          (B)
 Less than twenty-five percent (25%)
 of each outstanding class of equity
 interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2);
or


	
 

	
 

	
 


	
 

	
 

	
          (C)
 Borrower qualifies as an “operating
 company” or a “real estate operating
 company” within the meaning of 29 C.F.R. §2510.3-101(c) or (e).





          Section
5.19. No Joint Assessment


          Borrower
shall not suffer, permit or initiate the joint assessment of the Property with
(a) any other real property constituting a
tax lot separate from the Property, or (b) 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 the Property.


          Section
5.20. Intentionally Omitted


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          Section
5.21. Alterations


          Subject
to Section 20.12 hereof (to the extent applicable), Lender’s prior approval
shall be required in connection with any alterations to any Improvements
(a) that may have a material adverse effect on the Property, (b) that are
structural in nature, (c) that require Borrower’s prior consent under the
Sotheby’s Lease, (d) that, together with any other alterations undertaken at
the same time (including any related alterations, improvements or
replacements), are reasonably anticipated to
have a cost in excess of the Alteration Threshold, or (e) that are made from
and after the Optional Prepayment
Date. If the total unpaid amounts incurred and to be incurred with respect to such alterations to the Improvements
shall at any time exceed the Alteration Threshold, Borrower shall promptly deliver (or cause to be delivered) to
Lender as security for the payment of
such amounts and as additional security for Borrower’s obligations under the Loan Documents any of the following: (i) cash,
(ii) direct non-callable obligations of the United States of America or
other obligations which are “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act of
1940, to the extent acceptable to the applicable Rating Agencies, (iii)
other securities acceptable to Lender and the Rating Agencies, or (iv) a completion bond, provided that such
completion bond is acceptable to the Lender and the Rating Agencies. Such security shall be in an amount equal to the
excess of the total unpaid amounts
incurred and to be incurred with respect to such alterations to the
Improvements over the Alteration
Threshold.


          Section
5.22. Intentionally Omitted


ARTICLE 6

ENTITY COVENANTS


          Section
6.1. Single Purpose Entity/Separateness


          Until
the Debt has been paid in full, Borrower represents, warrants and covenants as follows:


          (a)
Borrower has not and will not:


	
 

	
 


	
 

	
          (i)
 engage in any business or activity other than the ownership, operation and maintenance of the Property, and activities
 incidental thereto;


	
 

	
 


	
 

	
          (ii)
 acquire or own any assets other than (A) the Property, and (B) such incidental Personal Property as may be necessary
 for the operation of the Property;


	
 

	
 


	
 

	
          (iii)
 merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or
 otherwise dispose of all or substantially all of its assets or change its
 legal structure;


	
 

	
 


	
 

	
          (iv)
 fail to observe all organizational formalities, or fail to preserve its existence as an entity duly organized, validly
 existing and in good standing (if applicable) under the applicable Legal Requirements of the jurisdiction of its
 organization or formation, or amend, modify, terminate or fail to
 comply with the provisions of its organizational
 documents;


	
 

	
 


	
 

	
          (v)
 own any subsidiary, or make any investment in, any Person;





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          (vi)
 commingle its assets with the assets of any other Person;


	
 

	
 


	
 

	
          (vii)
 incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) the
 Debt, (B) trade and operational indebtedness
 incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not
 evidenced by a note, (3) on commercially reasonable terms and conditions, and
 (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date
 (subject to Borrower’s right to contest the same in accordance with Section 3.5(b) of the
 Mortgage), and/or (C) financing leases and purchase money indebtedness
 incurred in the ordinary course of business relating to Personal Property on commercially reasonable
 terms and conditions; provided however, the aggregate amount of the indebtedness described in (B) and (C) shall
 not exceed at any time three
 percent (3%) of the outstanding principal amount of the Note;


	
 

	
 


	
 

	
          (viii)
 fail to maintain its records, books of account, bank accounts, financial statements, accounting
 records and other entity documents separate and apart from those of any other Person; except that Borrower’s
 financial position, assets, liabilities, net worth and operating results may be included in the consolidated
 financial statements of an
 Affiliate, provided that such consolidated financial statements contain a
 footnote indicating that Borrower is
 a separate legal entity and that it maintains separate books and records;


	
 

	
 


	
 

	
          (ix)
 enter into any contract or agreement with any general partner, member,
 shareholder, principal, guarantor of the obligations of Borrower, or any
 Affiliate of the foregoing, except upon terms and conditions that are
 intrinsically fair, commercially reasonable and substantially similar to
 those that would be available on an arm’s-length basis with
 unaffiliated third parties;


	
 

	
 


	
 

	
          (x)
 maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain
 or identify its individual assets from those of any other Person;


	
 

	
 


	
 

	
          (xi)
 assume or guaranty the debts of any other Person, hold itself out to be responsible for the debts of any other Person, or
 otherwise pledge its assets for the benefit of any other Person or hold out its credit as being available to
 satisfy the obligations of any other
 Person;


	
 

	
 


	
 

	
          (xii)
 make any loans or advances to any Person;


	
 

	
 


	
 

	
          (xiii)
 fail to file its own tax returns or files a consolidated federal income tax return with any Person (unless prohibited or
 required, as the case may be, by applicable Legal Requirements);


	
 

	
 


	
 

	
          (xiv)
 fail either to hold itself out to the public as a legal entity separate and distinct
 from any other Person or to conduct its business solely in its own name or
 fail to correct any known misunderstanding regarding its separate identity;





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          (xv)
 fail to maintain adequate capital for the normal obligations reasonably
 foreseeable in a business of its size and character and in light of its
 contemplated business operations;


	
 

	
 


	
 

	
          (xvi)
 if it is a partnership or limited liability company, without the unanimous
 written consent of all of its partners or members, as applicable, and the
 written consent of 100% of the directors of each SPE Component Entity (if
 any), including, without limitation, each Independent Director, (a) file or
 consent to the filing of any petition, either voluntary or involuntary, to
 take advantage of any Creditors Rights Laws, (b) seek or consent to the
 appointment of a receiver, liquidator or any similar official, (c) take any
 action that might cause such entity to become insolvent, or (d) make an
 assignment for the benefit of creditors;


	
 

	
 


	
 

	
          (xvii)
 fail to allocate shared expenses (including, without limitation, shared
 office space and services performed by an employee of an Affiliate) among the
 Persons sharing such expenses and to use separate stationery, invoices and
 checks;


	
 

	
 


	
 

	
          (xviii)
 fail to remain solvent or pay its own liabilities (including, without
 limitation, salaries of its own employees) only from its own funds; provided,
 however, that any such failure to remain solvent will not constitute a breach
 of this covenant if cash flow from the Property is insufficient for Borrower
 to remain solvent;


	
 

	
 


	
 

	
          (xix)
 acquire obligations or securities of its partners, members, shareholders or
 other affiliates, as applicable;


	
 

	
 


	
 

	
          (xx)
 violate or cause to be violated the assumptions made with respect to Borrower
 and its principals in any opinion letter pertaining to substantive
 consolidation delivered to Lender in connection with the Loan; or


	
 

	
 


	
 

	
          (xxi)
 fail to maintain a sufficient number of employees in light of its
 contemplated business operations.





          (b)
If Borrower is a partnership or limited liability company, each general partner
in the case of a general partnership, each general partner in the case of a
limited partnership (or, if Borrower is a Delaware limited partnership, at
least one general partner in the case of a limited partnership), or the
managing member in the case of a limited liability company (each an “SPE Component Entity”) of Borrower, as
applicable, shall be a corporation or a Delaware limited liability company
(meeting the criteria set forth in Section 6.1(c) below) whose sole asset is
its interest in Borrower. Each SPE Component Entity (i) will at all times
comply with each of the covenants, terms and provisions contained in Section
6.1(a)(iii) - (vi) and (viii) - (xxi), as if such representation, warranty or
covenant was made directly by such SPE Component Entity; (ii) will not engage
in any business or activity other than owning an interest in Borrower; (iii)
will at all times own at least a 0.5% general partnership or managing
membership interest in Borrower and will not acquire or own any assets other
than its partnership, membership, or other equity interest in Borrower; (iv)
will not incur any debt, secured or unsecured, direct or contingent (including
guaranteeing any obligation); and (v) will cause Borrower to comply with the
provisions of this Section 6.1 and Section 6.4. Prior to the withdrawal or the
disassociation of any SPE


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Component Entity from Borrower, Borrower shall
immediately appoint a new general partner or managing member whose articles of
incorporation are substantially similar to those of such SPE Component Entity
and, if an opinion letter pertaining to substantive consolidation was required
at closing, deliver a new opinion letter acceptable to Lender and the Rating
Agencies with respect to the new SPE Component Entity and its equity owners.
Notwithstanding the foregoing, to the extent Borrower is a single member
Delaware limited liability company satisfying the covenants related thereto
contained herein, so long as Borrower maintains such formation status, no SPE
Component Entity shall be required.


          (c)
In the event Borrower or any SPE Component Entity is a single member Delaware
limited liability company, the limited liability company agreement of Borrower
or such SPE Component Entity (as applicable) (the “LLC Agreement”) shall provide that (i) upon the occurrence of
any event that causes the sole member of Borrower or such SPE Component Entity
(as applicable) (“Member”) to
cease to be the member of Borrower or such SPE Component Entity (as applicable)
(other than (A) upon an assignment by Member of all of its limited liability
company interest in Borrower or such SPE Component Entity (as applicable) and
the admission of the transferee in accordance with the Loan Documents and the
LLC Agreement, or (B) the resignation of Member and the admission of an
additional member of Borrower or such SPE Component Entity (as applicable) in
accordance with the terms of the Loan Documents and the LLC Agreement), any
person acting as Independent Director of Borrower or such SPE Component Entity
(as applicable) shall, without any action of any other Person and
simultaneously with the Member ceasing to be the member of Borrower or such SPE
Component Entity (as applicable), automatically be admitted to Borrower or such
SPE Component Entity (as applicable) (“Special
Member”) and shall continue Borrower or such SPE Component Entity
(as applicable) without dissolution and (ii) Special Member may not resign from
Borrower or such SPE Component Entity (as applicable) or transfer its rights as
Special Member unless (A) a successor Special Member has been admitted to
Borrower or such SPE Component Entity (as applicable) as Special Member in
accordance with requirements of Delaware law and (B) such successor Special Member
has also accepted its appointment as an Independent Director. The LLC Agreement
shall further provide that (i) Special Member shall automatically cease to be a
member of Borrower or such SPE Component Entity (as applicable) upon the
admission to Borrower or such SPE Component Entity (as applicable) of a
substitute Member, (ii) Special Member shall be a member of Borrower or such
SPE Component Entity (as applicable) that has no interest in the profits,
losses and capital of Borrower or such SPE Component Entity (as applicable) and
has no right to receive any distributions of Borrower’s or such SPE Component
Entity’s (as applicable) assets, (iii) pursuant to Section 18-301 of the
Delaware Limited Liability Company Act (the “Act”),
Special Member shall not be required to make any capital contributions to
Borrower or such SPE Component Entity (as applicable) and shall not receive a
limited liability company interest in Borrower or such SPE Component Entity (as
applicable), (iv) Special Member, in its capacity as Special Member, may not
bind Borrower or such SPE Component Entity (as applicable) and (v) except as
required by any mandatory provision of the Act, Special Member, in its capacity
as Special Member, shall have no right to vote on, approve or otherwise consent
to any action by, or matter relating to, Borrower or such SPE Component Entity
(as applicable), including, without limitation, the merger, consolidation or
conversion of Borrower or such SPE Component Entity (as applicable); provided,
however, such prohibition shall not limit the obligations of Special Member,
its capacity as Independent Director, to vote on such matters required by the
Loan Documents or the LLC Agreement. In order to implement


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the admission to Borrower or
such SPE Component Entity (as applicable) of Special Member, Special Member
shall execute a counterpart to the LLC Agreement. Prior to its admission to
Borrower or such SPE Component Entity (as applicable) as Special Member,
Special Member shall not be a member of Borrower or such SPE Component Entity
(as applicable).


          Upon
the occurrence of any event that causes the Member to cease to be a member of
Borrower or such SPE Component Entity (as applicable), to the fullest extent
permitted by law, the personal representative of Member shall, within ninety
(90) days after the occurrence of the event that terminated the continued
membership of Member in Borrower or such SPE Component Entity (as applicable),
agree in writing (i) to continue Borrower or such SPE Component Entity (as
applicable) and (ii) to the admission of the personal representative or its
nominee or designee, as the case may be, as a substitute member of Borrower or
such SPE Component Entity (as applicable), effective as of the occurrence of
the event that terminated the continued membership of Member of Borrower or
such SPE Component Entity (as applicable) in Borrower or such SPE Component
Entity (as applicable). Any action initiated by or brought against Member or
Special Member under any Creditors Rights Laws shall not cause Member or
Special Member to cease to be a member of Borrower or such SPE Component Entity
(as applicable) and upon the occurrence of such an event, the business of Borrower
or such SPE Component Entity (as applicable) shall continue without
dissolution. The LLC Agreement shall provide that each of Member and Special
Member waives any right it might have to agree in writing to dissolve Borrower
or such SPE Component Entity (as applicable) upon the occurrence of any action
initiated by or brought against Member or Special Member under any Creditors
Rights Laws, or the occurrence of an event that causes Member or Special Member
to cease to be a member of Borrower or such SPE Component Entity (as
applicable).


          Section
6.2. Change of Name, Identity or Structure


          Borrower
shall not change or permit to be changed (a) Borrower’s name, (b) Borrower’s
identity (including its trade name or names), (c) Borrower’s principal place of
business set forth on the first page of this Agreement, (d) the corporate,
partnership or other organizational structure of Borrower or each SPE Component
Entity, (e) Borrower’s state of organization, or (f) Borrower’s organizational
identification number, without in each case notifying Lender of such change in
writing at least thirty (30) days prior to the effective date of such change
and, in the case of a change in Borrower’s structure, without first obtaining
the prior written consent of Lender. In addition, Borrower shall not change or
permit to be changed any organizational documents of Borrower or any SPE
Component Entity (if any) if such change would adversely impact the covenants
set forth in Section 6.1 and Section 6.4 hereof. Borrower authorizes Lender to
file any financing statement or financing statement amendment required by
Lender to establish or maintain the validity, perfection and priority of the
security interest granted herein. At the request of Lender, Borrower shall
execute a certificate in form satisfactory to Lender listing the trade names
under which Borrower intends to operate the Property, and representing and
warranting that Borrower does business under no other trade name with respect
to the Property. If Borrower does not now have an organizational identification
number and later obtains one, or if the organizational identification number
assigned to Borrower subsequently changes, Borrower shall promptly notify
Lender of such organizational identification number or change.


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          Section
6.3. Business and Operations


          Borrower
will qualify to do business and will remain in good standing under the laws of
the State as and to the extent the same are required for the ownership,
maintenance, management and operation of the Property.


          Section
6.4. Independent Director


          (a)
The organizational documents of each SPE Component Entity (if any) shall
provide that at all times there shall be, and Borrower shall cause there to be,
at least two duly appointed members of the board of directors (each an “Independent Director”) of such SPE
Component Entity reasonably satisfactory to Lender each of whom are not at the
time of such individual’s initial appointment, and shall not have been at any
time during the preceding five (5) years, and shall not be at any time while
serving as a director of such SPE Component Entity, either (i) a shareholder
(or other equity owner) of, or an officer, director, partner, manager, member
(other than as a Special Member in the case of single member Delaware limited
liability companies), employee, attorney or counsel of, Borrower, such SPE
Component Entity or any of their respective shareholders, partners, members,
subsidiaries or affiliates; (ii) a customer or creditor of, or supplier to,
Borrower or any of its respective shareholders, partners, members, subsidiaries
or affiliates who derives any of its purchases or revenue from its activities
with Borrower or such SPE Component Entity or any Affiliate of any of them;
(iii) a Person who Controls or is under common Control with any such
shareholder, officer, director, partner, manager, member, employee, supplier,
creditor or customer; or (iv) a member of the immediate family of any such
shareholder, officer, director, partner, manager, member, employee, supplier,
creditor or customer.


          (b)
The organizational documents of each SPE Component Entity (if any) shall
provide that the board of directors of such SPE Component Entity shall not take
any action which, under the terms of any certificate of incorporation, by-laws
or any voting trust agreement with respect to any common stock, requires an
unanimous vote of the board of directors of such SPE Component Entity of
Borrower unless at the time of such action there shall be at least two members
of the board of directors who are Independent Directors. Such SPE Component
Entity will not, without the unanimous written consent of its board of
directors including each Independent Director, on behalf of itself or Borrower,
(i) file or consent to the filing of any petition, either voluntary or
involuntary, to take advantage of any applicable Creditors Rights Laws; (ii)
seek or consent to the appointment of a receiver, liquidator or any similar
official; (iii) take any action that might cause such entity to become
insolvent; or (iv) make an assignment for the benefit of creditors.


ARTICLE 7

NO SALE OR ENCUMBRANCE


          Section
7.1. Transfer Definitions


          For
purposes of this Article 7 an “Affiliated
Manager” shall mean any managing agent in which Borrower, Borrower
Principal, any SPE Component Entity (if any) or any affiliate of such entities
has, directly or indirectly, any legal, beneficial or economic interest; “Control”


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shall mean the power to direct the management and
policies of a Restricted Party (subject to any specified approval rights over
major decisions relating to such Restricted Party that may be vested in other
constituent parties of such Restricted Party), directly or indirectly, whether
through the ownership of voting securities or other beneficial interests, by
contract or otherwise; “Restricted Party” shall
mean Borrower, Borrower Principal, any SPE Component Entity (if any), any
Affiliated Manager, or any shareholder, partner, member or non-member manager,
or any direct or indirect legal or beneficial owner of Borrower, Borrower
Principal, any SPE Component Entity (if any), any Affiliated Manager or any
non-member manager; and a “Sale or Pledge” shall
mean a voluntary or involuntary sale, conveyance, mortgage, grant, bargain,
encumbrance, pledge, assignment, grant of any options with respect to, or any
other transfer or disposition of (directly or indirectly, voluntarily or
involuntarily, by operation of law or otherwise, and whether or not for
consideration or of record) of a legal or beneficial interest.


          Section
7.2. No Sale/Encumbrance


          (a)
Except as set forth in Section 7.3 hereof, Borrower shall not cause or permit a
Sale or Pledge of the Property or any part thereof or any legal or beneficial
interest therein nor permit a Sale or Pledge of an interest in any Restricted
Party (in each case, a “Prohibited Transfer”),
other than pursuant to Leases of space in the Improvements to
Tenants in accordance with the provisions of Section 5.13 (including, without
limitation, the Sotheby’s Lease), without the prior written consent of Lender.


          (b)
A Prohibited Transfer shall include, but not be limited to, (i) an installment
sales agreement wherein Borrower agrees to sell the Property or any part
thereof for a price to be paid in installments; (ii) an agreement by Borrower
leasing all or a substantial part of the Property for other than actual
occupancy by a space tenant thereunder or a sale, assignment or other transfer
of, or the grant of a security interest in, Borrower’s right, title and
interest in and to any Leases or any Rents; (iii) if a Restricted Party is a
corporation, any merger, consolidation or Sale or Pledge of such corporation’s
stock or the creation or issuance of new stock in one or a series of
transactions; (iv) if a Restricted Party is a limited or general partnership or
joint venture, any merger or consolidation or the change, removal, resignation
or addition of a general partner or the Sale or Pledge of the partnership
interest of any general or limited partner or any profits or proceeds relating
to such partnership interests or the creation or issuance of new partnership
interests; (v) if a Restricted Party is a limited liability company, any merger
or consolidation or the change, removal, resignation or addition of a managing
member or non-member manager (or if no managing member, any member) or the Sale
or Pledge of the membership interest of any member or any profits or proceeds
relating to such membership interest; (vi) if a Restricted Party is a trust or
nominee trust, any merger, consolidation or the Sale or Pledge of the legal or
beneficial interest in a Restricted Party or the creation or issuance of new
legal or beneficial interests; or (vii) the removal or the resignation of
Manager (including, without limitation, an Affiliated Manager) other than in
accordance with Section 5.14.


          Section
7.3. Permitted Transfers


          Notwithstanding
the provisions of Section 7.2, the following transfers shall not be deemed to
be a Prohibited Transfer and shall not require Lender’s consent: (a) a transfer
(but not the pledge) by devise or descent or by operation of law upon the death
of a member, partner or


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shareholder of a Restricted Party; (b) the transfer
(but not the pledge), in one or a series of transactions, of the stock,
partnership interests or membership interests (as the case may be) in a
Restricted Party, or (c) a Mezzanine Transfer; provided, that, with respect to
the transfers listed in clauses (a), (b) or (c) above, (A) Lender shall receive
ten (10) Business Days prior written notice of such transfers, (B) except in
connection with a Mezzanine Foreclosure, after giving effect to such transfers
Borrower Principal Family Group shall (i) own at least a 25% direct or indirect
interest in Borrower and Affiliated Manager, (ii) Control Borrower and
Affiliated Manager, and (iii) control the day-to-day operation of the Property,
(C) the Property shall continue to be managed by Affiliated Manager or a
Qualified Manager in the manner in which the Property is managed immediately
prior to such transfer, (D) in the case of the transfer of any direct ownership
interests in Borrower or in any SPE Component Entity, such transfers shall be
conditioned upon the continued compliance with the relevant provisions of
Article 6 hereof, (E) no such transfers shall permit Sotheby’s to exercise its
right of first offer contained in Article 23 of the Sotheby’s Lease or shall
otherwise constitute a Sotheby’s Event of Default, and (F) in the case of any
transfer that, in one or in a series of transactions, results in any Person
and/or its Affiliates directly or indirectly owning in excess of forty-nine
percent (49%) of the ownership interests in any Restricted Party, such
transfers shall be conditioned upon the delivery to Lender of a substantive
non-consolidation opinion, which such opinion shall be provided by outside
counsel reasonably acceptable to Lender and acceptable to the Rating Agencies
and shall otherwise be in form, scope and substance reasonably acceptable to
Lender and in form, scope and substance acceptable to the Rating Agencies;
provided, however, to the extent that the transfers set forth in clause (F)
above are to a Person that was the subject of a “pairing” in the
Non-Consolidation Opinion and such transfers result in such Person increasing
(but not changing the nature of) their respective ownership interests in such
Restricted Party, clause (F) shall be deemed satisfied to the extent Lender
receives written confirmation from the counsel who rendered the
Non-Consolidation Opinion stating that the Non-Consolidation Opinion is still
valid and will not be affected by the aforesaid transfers regardless of any
facts or assumptions contained therein related to equity ownership or any
similar related facts or assumptions, which such confirmation shall be
reasonably acceptable to Lender and acceptable to the Rating Agencies.


          Notwithstanding
the foregoing, a transfer shall not be deemed to be a Prohibited Transfer
solely due to the failure to satisfy the requirement that the Borrower
Principal Family Group own at least a 25% direct or indirect ownership interest
in Borrower and Affiliated Manager set forth in clause (B) of the foregoing
paragraph of this Section 7.3 so long as (i) all other applicable requirements
set forth in the foregoing paragraph of this Section 7.3 shall be satisfied,
(ii) the Borrower Principal Family Group shall continue to own at least a 10%
direct or indirect ownership interest in Borrower and Affiliated Manager, and
(iii) all remaining direct or indirect ownership interests in Borrower and
Affiliated Manager shall be owned by Permitted Transferees.


          Section
7.4. Lender’s Rights


          Lender reserves the right to condition the consent to
a Prohibited Transfer requested hereunder upon (a) a modification of the terms
hereof and an assumption of the Note and the other Loan Documents as so
modified by the proposed Prohibited Transfer, (b) receipt of payment of a
transfer fee equal to one percent (1%) of the outstanding principal balance of
the


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Loan and all of Lender’s expenses incurred in
connection with such Prohibited Transfer, (c) receipt of written confirmation
from the Rating Agencies that the Prohibited Transfer will not result in a
downgrade, withdrawal or qualification of the initial, or if higher, then
current ratings issued in connection with a Securitization, or if a
Securitization has not occurred, any ratings to be assigned in connection with
a Securitization, (d) the proposed transferee’s continued compliance with the
covenants set forth in this Agreement (including, without limitation, the
covenants in Article 6) and the other Loan Documents, (e) a new Qualified
Manager for the Property or a new manager for the Property satisfactory to
Lender and in each case, a new management agreement satisfactory to Lender, and
(f) the satisfaction of such other conditions and/or legal opinions as Lender
shall determine in its sole discretion to be in the interest of Lender. All
expenses incurred by Lender shall be payable by Borrower whether or not Lender
consents to the Prohibited Transfer. Lender shall not be required to
demonstrate any actual impairment of its security or any increased risk of
default hereunder in order to declare the Debt immediately due and payable upon
a Prohibited Transfer made without Lender’s consent. This provision shall apply
to each and every Prohibited Transfer, whether or not Lender has consented to
any previous Prohibited Transfer. Notwithstanding anything to the contrary
contained in this Section 7.4, if any Sale or Pledge permitted under this
Section 7.4 results (in one or in a series of transactions) in any Person
and/or its Affiliates owning in excess of forty-nine percent (49%) of the
direct or indirect ownership interests in Borrower or in any SPE Component
Entity (other than the Persons owning such interests as of the date hereof) or
in any transfer of a general partnership or managing limited partnership
interest in Borrower, Borrower shall, prior to such transfer, and in addition
to any other requirement for Lender consent contained herein, deliver a revised
version of the Non-Consolidation Opinion to Lender reflecting such Prohibited
Transfer, which opinion shall be in form, scope and substance reasonably
acceptable in all respects to Lender and in form, scope and substance
acceptable in all respects to the Rating Agencies.


          Section
7.5. Assumption


          Notwithstanding
the foregoing provisions of this Article 7, Lender shall not unreasonably
withhold consent to a transfer of the Property in its entirety to, and the
related assumption of the Loan by, any Person (a “Transferee”) provided that each of the following terms and
conditions are satisfied:


          (a)
no Event of Default has occurred and is continuing;


          (b)
Borrower shall have (i) delivered written notice to Lender of the terms of such
prospective transfer not less than thirty (30) days before the date on which
such transfer is scheduled to close and, concurrently therewith, all such
information concerning the proposed Transferee as Lender shall reasonably
require and (ii) paid to Lender a non-refundable processing fee in the amount
of $25,000. Lender shall have the right to approve or disapprove the proposed
transfer based on its then current underwriting and credit requirements for
similar loans secured by similar properties which loans are sold in the
secondary market, such approval not to be unreasonably withheld. In determining
whether to give or withhold its approval of the proposed transfer, Lender shall
consider the experience and track record of Transferee and its principals in
owning and operating facilities similar to the Property, the financial strength
of Transferee and its principals, the general business standing of Transferee
and its principals and Transferee’s and its principals’ relationships and
experience with contractors, vendors, tenants,


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lenders and other business entities; provided,
however, that, notwithstanding Lender’s agreement to consider the foregoing
factors in determining whether to give or withhold such approval, such approval
shall be given or withheld based on what Lender determines to be commercially
reasonable and, if given, may be given subject to such conditions as Lender may
deem reasonably appropriate;


          (c)
Borrower shall have paid to Lender, concurrently with the closing of such
transfer, (i) a non-refundable assumption fee in an amount equal to one percent
(1.0%) of the then outstanding principal balance of the Note, and (ii) all
out-of-pocket costs and expenses, including reasonable attorneys’ fees,
incurred by Lender in connection with the transfer;


          (d)
Transferee assumes and agrees to pay the Debt as and when due subject to the
provisions of Article 15 hereof and, prior to or concurrently with the closing
of such transfer, Transferee and its constituent partners, members or
shareholders as Lender may require, shall execute, without any cost or expense
to Lender, such documents and agreements as Lender shall reasonably require to
evidence and effectuate said assumption;


          (e)
Borrower and Transferee, without any cost to Lender, shall furnish any
information reasonably requested by Lender for the preparation of, and shall
authorize Lender to file, new financing statements and financing statement
amendments and other documents to the fullest extent permitted by applicable
law, and shall execute any additional documents reasonably requested by Lender;


          (f)
Borrower shall have delivered to Lender, without any cost or expense to Lender,
such endorsements to Lender’s Title Insurance Policy insuring that fee simple
or leasehold title to the Property, as applicable, is vested in Transferee
(subject to Permitted Encumbrances), hazard insurance endorsements or
certificates and other similar materials as Lender may deem reasonably
necessary at the time of the transfer, all in form and substance reasonably
satisfactory to Lender;


          (g)
Transferee shall have furnished to Lender, if Transferee is a corporation,
partnership, limited liability company or other entity, all appropriate papers
evidencing Transferee’s organization and good standing, and the qualification
of the signers to execute the assumption of the Debt, which papers shall
include certified copies of all documents relating to the organization and
formation of Transferee and of the entities, if any, which are partners or
members of Transferee. Transferee and such constituent partners, members or
shareholders of Transferee (as the case may be), as Lender shall reasonably
require, shall comply with the covenants set forth in Article 6 hereof;


          (h)
Transferee shall assume the obligations of Borrower under any Management
Agreement or provide a new management agreement with a new manager which meets
with the requirements of Section 5.14 hereof and assign to Lender as additional
security such new management agreement;


          (i)
Transferee shall furnish an opinion of counsel reasonably satisfactory to
Lender and its counsel (A) that Transferee’s formation documents provide for
the matters described in subparagraph (g) above, (B) that the assumption of the
Debt has been duly authorized, executed


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and delivered, and that the
Note, the Mortgage, this Agreement, the assumption agreement and the other Loan
Documents are valid, binding and enforceable against Transferee in accordance
with their terms, (C) that Transferee and any entity which is a controlling
stockholder, member or general partner of Transferee, have been duly organized,
and are in existence and good standing, and (E) with respect to such other
matters as Lender may reasonably request;


          (j)
if required by Lender, Lender shall have received confirmation in writing from
the Rating Agencies that rate the Securities to the effect that the transfer
will not result in a qualification, downgrade or withdrawal of any rating
initially assigned or to be assigned to the Securities;


          (k)
Borrower’s obligations under the contract of sale pursuant to which the
transfer is proposed to occur shall expressly be subject to the satisfaction of
the terms and conditions of this Section 7.5; and


          (1)
Transferee shall, prior to such transfer, deliver a substantive
non-consolidation opinion to Lender, which opinion shall be in form, scope and
substance reasonably acceptable in all respects to Lender and in form, scope
and substance acceptable in all respects to the Rating Agencies.


A consent by Lender with
respect to a transfer of the Property in its entirety to, and the related
assumption of the Loan by, a Transferee pursuant to this Section 7.5 shall not be
construed to be a waiver of the right of Lender to consent to any subsequent
transfer of the Property.


Notwithstanding anything to
the contrary contained in this Section 7.5, in no event shall Lender be
required to consent to a transfer/assumption under this Section 7.5 prior to a
Securitization if the consideration to be paid to Borrower in connection
therewith is less than the appraised value of the Property as determined in
connection with Lender’s underwriting of the Loan.


          Section
7.6. Mezzanine Option


          Notwithstanding
the foregoing provisions of this Article 7, at any time during the term of the
Loan, a constituent party or parties (direct or indirect) of Borrower that is
not an SPE Component Entity (any such party or parties, collectively, the “Mezzanine Borrower”) shall be permitted to
incur mezzanine financing (the “Permitted
Mezzanine Financing”) secured by a pledge of Mezzanine Borrower’s
direct or indirect equity interests in Borrower (other than the direct equity
interests in Borrower owned by any SPE Component Entity), provided, that, the
following terms and conditions are each satisfied:


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


          (b)
Lender shall have received at least thirty (30) and no more than ninety (90)
days prior written notice of the exercise of the proposed Permitted Mezzanine
Financing (the “Mezzanine Notice”);


          (c)
No more than one Permitted Mezzanine Financing may be outstanding at any given
time;


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          (d)
The principal amount of the proposed Permitted Mezzanine Financing (including,
without limitation, all earn-out or other advances or negative amortization or
similar features contemplated thereunder which would in any way increase the
principal amount due thereunder) shall not exceed an amount which, when
aggregated with the outstanding principal amount of the Loan, would result in
(i) an LTV in excess of 85%, or (ii) a Debt Service Coverage Ratio, calculated
on a trailing 12-month basis, less than 1.25 to 1.00;


          (e)
The Permitted Mezzanine Financing shall bear interest at a fixed rate of
interest, or if the Permitted Mezzanine Financing shall bear interest at a
floating rate of interest, Mezzanine Borrower shall have obtained and shall
maintain an Interest Rate Cap Agreement, and such Interest Rate Cap Agreement
shall have been collaterally assigned to the Mezzanine Lender in a manner
reasonably satisfactory to Lender;


          (f)
The loan term (including any extension terms) of the proposed Permitted
Mezzanine Financing shall be co-terminus with or longer than the term of the
Loan;


          (g)
The holder of the Permitted Mezzanine Financing (the “Mezzanine Lender”) shall (A) be a Qualified Institutional
Lender, (B) represent and warrant to Lender that, as of the date of the funding
of the Permitted Mezzanine Financing, it is solvent and not involved in any
voluntary or involuntary action or proceeding as debtor under any applicable
federal bankruptcy law, or any similar federal or state law, and (C) agree in
the Mezzanine Intercreditor (defined below) that any subsequent transfer of the
Permitted Mezzanine Financing shall be to a Qualified Institutional Lender;


          (h)
Mezzanine Lender shall have delivered to Lender (for execution by Lender) an
intercreditor agreement executed by Mezzanine Lender, which such intercreditor
agreement shall be in form and substance reasonably acceptable to Lender and
acceptable to the Rating Agencies (such intercreditor agreement, the “Mezzanine Intercreditor”);


          (i)
Borrower shall deliver to Lender, at Borrower’s sole cost and expense, a
revised and/or updated substantive non-consolidation opinion reasonably
acceptable to Lender and acceptable to the Rating Agencies reflecting the
Permitted Mezzanine Financing;


          (j)
Borrower, at Borrower’s sole cost and expense, shall provide to Lender
satisfactory (i.e., showing no Liens other than Permitted Encumbrances) UCC
searches, together with tax lien, bankruptcy, judgment and litigation searches
with respect to the Property, Borrower and Borrower Principal in the State in
which the Property is located, in Delaware and in the jurisdictions where each
such Person has its principal place of business;


          (k)
Borrower shall have paid or reimbursed Lender for all reasonable, out of pocket
costs and expenses incurred by Lender (including, without limitation,
reasonable attorneys’ fees and disbursements and any costs, expenses and/or
fees of the Rating Agencies) in connection with the Permitted Mezzanine
Financing and Borrower shall have paid or shall have caused Mezzanine Borrower
to pay all title premiums, recording charges, filing fees, taxes or other
expenses payable in connection with the Permitted Mezzanine Financing;


          (1)
Borrower shall execute such amendments to the Loan Documents as may be
reasonably requested by Lender, including, without limitation, an amendment to
the terms hereof


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such that property level
expenses are reserved and paid by Lender in accordance with the Annual Budget
approved hereunder (provided no Event of Default has occurred and is
continuing) pursuant to an amendment to the cash management provisions set
forth in Article 10 hereof;


          (m)
Lender shall have received written confirmation from the Rating Agencies that
the proposed Permitted Mezzanine Financing shall not result in a downgrade,
withdrawal or qualification of the ratings assigned to any Securities (or, with
respect to a proposed Securitization, to be issued); and;


          (n)
Borrower shall deliver to Lender an Officers Certificate certifying that the
requirements set forth in this Section 7.6 have been satisfied.


ARTICLE 8

INSURANCE; CASUALTY; CONDEMNATION; RESTORATION


          Section
8.1. Insurance


          (a)
Borrower shall obtain and maintain, or cause to be maintained, at all times
insurance for Borrower and the Property providing at least the following
coverages:


	
 

	
 


	
 

	
          (i)
 comprehensive “all risk” insurance on the Improvements and the Personal
 Property, in each case (A) in an amount equal to one hundred percent (100%)
 of the “Full Replacement Cost,” which for purposes of this Agreement shall
 mean actual replacement value (exclusive of costs of excavations,
 foundations, underground utilities and footings) with a waiver of
 depreciation; (B) containing an agreed amount endorsement with respect to the
 Improvements and Personal Property waiving all co-insurance provisions; (C)
 providing for no deductible in excess of $100,000 for all such insurance
 coverage; and (D) if any of the Improvements or the use of the Property shall
 at any time constitute legal non-conforming structures or uses, providing
 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. In addition,
 Borrower shall obtain: (y) if any portion of the Improvements is currently or
 at any time in the future located in a “special flood hazard area” designated
 by the Federal Emergency Management Agency, flood hazard insurance in an
 amount equal to the maximum amount of such insurance available under the National
 Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the
 National Flood Insurance Reform Act of 1994, as each may be amended; and (z)
 earthquake insurance in amounts and in form and substance reasonably
 satisfactory to Lender in the event the Property is located in an area with a
 high degree of seismic risk, provided that the insurance pursuant to clauses
 (y) and (z) hereof shall be on terms consistent with the comprehensive all
 risk insurance policy required under this subsection (i);


	
 

	
 


	
 

	
          (ii)
 Commercial General Liability insurance against claims for personal injury,
 bodily injury, death or property damage occurring upon, in or about the
 Property, with such insurance (A) to be on the so-called “occurrence” form
 with a general aggregate limit of not less than $2,000,000 and a per
 occurrence limit of not less than $1,000,000; (B) to continue at not less
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changed by Lender in
 writing by reason of changed economic conditions making such protection
 inadequate; and (C) to cover at least the following hazards: (1) premises and
 operations; (2) products and completed operations; (3) independent
 contractors; (4) blanket contractual liability; and (5) contractual liability
 covering the indemnities contained in Article 12 and Article 14 hereof to the
 extent the same is available;


	
 

	
 


	
 

	
          (iii)
 loss of rents insurance or business income insurance, as applicable, (A) with
 loss payable to Lender; (B) covering all risks required to be covered by the
 insurance provided for in subsection (i) above; and (C) which provides that
 after the physical loss to the Improvements and Personal Property occurs, the
 loss of rents or income, as applicable, will be insured until such rents or
 income, as applicable, either return to the same level that existed prior to
 the loss, or the expiration of eighteen (18) months, whichever first occurs,
 and notwithstanding that the policy may expire prior to the end of such
 period; and (D) which contains an extended period of indemnity endorsement
 which provides that after the physical loss to the Improvements and Personal
 Property has been repaired, the continued loss of income will be insured
 until such income either returns to the same level it was at prior to the
 loss, or the expiration of six (6) months from the date that the Property is
 repaired or replaced and operations are resumed, whichever first occurs, and
 notwithstanding that the policy may expire prior to the end of such period.
 The amount of such loss of rents or business income insurance, as applicable,
 shall be determined prior to the date hereof and at least once each year
 thereafter based on (i) for any period that the Sotheby’s Lease is in full
 force and effect, the amount of base rent and additional rent payable under
 the Leases (including, without limitation, any income attributable to
 Borrower due to any subleases of the Leases) for the succeeding period of
 coverage required above, or (ii) for any period that the Sotheby’s Lease is
 not in full force and effect, Borrower’s reasonable estimate of the gross
 income from the Property for the succeeding period of coverage required
 above. All proceeds payable to Lender pursuant to this subsection shall be
 held by Lender and shall be applied to the obligations secured by the Loan
 Documents from time to time due and payable hereunder and under the Note
 (with any excess proceeds applied, to the extent no Event of Default has
 occurred and is continuing, in accordance with the applicable provisions of
 Section 10.2(b)); provided, however, that nothing herein contained shall be
 deemed to relieve Borrower of its obligations to pay the obligations secured
 by the Loan Documents on the respective dates of payment provided for in the
 Note, this Agreement and the other Loan Documents except to the extent such
 amounts are actually paid out of the proceeds of such loss of rents or
 business income insurance, as applicable;


	
 

	
 


	
 

	
          (iv)
 at all times during which structural construction, repairs or alterations are
 being made with respect to the Improvements, and only if the Property
 coverage form does not otherwise apply, (A) owner’s contingent or protective
 liability insurance covering claims not covered by or under the terms or
 provisions of the above mentioned commercial general liability insurance
 policy; and (B) the insurance provided for in subsection (i) above written in
 a so-called Builder’s Risk Completed Value form (1) on a non-reporting basis,
 (2) against “all risks” insured against pursuant to subsection (i) above, (3)
 including permission to occupy the Property, and (4) with an agreed amount
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          (v)
 workers’ compensation, subject to the statutory limits of the State, and
 employer’s liability insurance in respect of any work or operations on or
 about the Property, or in connection with the Property or its operation (if
 applicable);


	
 

	
 


	
 

	
          (vi)
 comprehensive boiler and machinery insurance, if applicable, in amounts as
 shall be reasonably required by Lender on terms consistent with the
 commercial property insurance policy required under subsection (i) above;


	
 

	
 


	
 

	
          (vii)
 excess liability insurance in an amount not less than $50,000,000 per
 occurrence on terms consistent with the commercial general liability
 insurance required under subsection (ii) above; and


	
 

	
 


	
 

	
          (viii)
 upon sixty (60) days’ written notice, such other reasonable insurance and in
 such reasonable amounts as Lender from time to time may reasonably request
 against such other insurable hazards which at the time are commonly insured
 against for property similar to the Property.





          (b)
All insurance provided for in Section 8.1(a) shall be obtained under valid and
enforceable policies (collectively, the “Policies”
or in the singular, the “Policy”),
and shall be subject to the approval of Lender as to insurance
companies, amounts, deductibles, loss payees and insureds, which such approval
shall not be unreasonably withheld, conditioned or delayed. The Policies shall
be issued by financially sound and responsible insurance companies authorized
to do business in the State and having a claims paying ability rating of “A”
(or its equivalent) or better by at least two Rating Agencies, one of which
must be S&P or such other Rating Agencies approved by Lender. The Policies
described in Section 8.1(a) shall designate Lender and its successors and
assigns as additional insureds, mortgagees and/or loss payee as deemed
appropriate by Lender. Not less than ten (10) days prior to the expiration
dates of the Policies theretofore furnished to Lender, Borrower shall deliver
to Lender (i) for any period that the Sotheby’s Lease is in full force and
effect, certificates evidencing renewal of the Policies (such certificates, the
“Insurance Certificates”) accompanied
by evidence satisfactory to Lender of payment of the premiums due with respect
to the Policies (the “Insurance Premiums”) and
Borrower shall make commercially reasonable efforts to deliver to Lender, as
soon as possible thereafter, renewal Policies, and (ii) for any period that the
Sotheby’s Lease is not in full force and effect, renewal Policies accompanied
by evidence satisfactory to Lender of payment of the Insurance Premiums shall
be delivered by Borrower to Lender.


          (c)
Any blanket insurance Policy shall specifically allocate to the Property the
amount of coverage from time to time required hereunder and shall otherwise
provide the same protection as would a separate Policy insuring only the
Property in compliance with the provisions of Section 8.1(a).


          (d)
All Policies provided for or contemplated by Section 8.1(a), except for the
Policy referenced in Section 8.1(a)(v), shall name Borrower as the insured or
additional insured and loss payee and Lender as the additional insured,
mortgagee or loss payee, as its interests may appear, and in the case of
property damage, boiler and machinery, flood and earthquake insurance, shall
contain a so-called New York standard non-contributing mortgagee clause in
favor of Lender providing that the loss thereunder shall be payable to Lender.


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          (e)
All Policies provided for in Section 8.1(a) shall contain clauses or
endorsements to the effect that:


	
 

	
 


	
 

	
          (i)
 no act or negligence of Borrower, or anyone acting for Borrower, or of any
 Tenant or other occupant, or failure to comply with the provisions of any
 Policy, which might otherwise result in a forfeiture of the insurance or any
 part thereof, shall in any way affect the validity or enforceability of the
 insurance insofar as Lender is concerned;


	
 

	
 


	
 

	
          (ii)
 the Policies shall not be materially changed (other than to increase the
 coverage provided thereby) or canceled without at least thirty (30) days’
 prior written notice to Lender and any other party named therein as an
 additional insured;


	
 

	
 


	
 

	
          (iii)
 the issuers thereof shall give written notice to Lender if the Policies have
 not been renewed thirty (30) days prior to its expiration;


	
 

	
 


	
 

	
          (iv)
 Lender shall not be liable for any Insurance Premiums thereon or subject to
 any assessments thereunder; and


	
 

	
 


	
 

	
          (v)
 the Policies do not contain an exclusion for acts of terrorism (provided,
 that, with respect to the Policies required under Section 8.1(a)(iii) hereof,
 such Policies may, with respect to coverage for acts of terrorism only,
 exclude the coverage detailed in Section 8.l(a)(iii)(D)).





          (f)
If at any time Lender is not in receipt of written evidence that all insurance
required hereunder is in full force and effect, Lender shall have the right,
without notice to Borrower, to take such action as Lender deems necessary to
protect its interest in the Property, including, without limitation, obtaining
such insurance coverage as Lender in its sole discretion deems appropriate. All
premiums incurred by Lender in connection with such action or in obtaining such
insurance and keeping it in effect shall be paid by Borrower to Lender upon
demand and, until paid, shall be secured by the Mortgage and shall bear
interest at the Default Rate.


          Section
8.2. Casualty


          If
the Property shall be damaged or destroyed, in whole or in part, by fire or
other casualty (a “Casualty”), Borrower
shall give prompt notice of such damage to Lender and shall promptly commence
and diligently prosecute (or shall cause the prompt commencement and diligent
prosecution of) the Restoration of the Property in accordance with Section 8.4,
whether or not Lender makes any Net Proceeds available pursuant to Section 8.4.
Borrower shall pay (or cause to be paid) all costs of such Restoration whether
or not such costs are covered by insurance. Lender may, but shall not be
obligated to make proof of loss if not made promptly by Borrower. Borrower
shall adjust (or cause to be adjusted) all claims for Insurance Proceeds in
consultation with, and approval of, Lender; provided, however, if an Event of
Default has occurred and is continuing, Lender shall have the exclusive right
to participate in the adjustment of all claims for Insurance Proceeds.


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          Section
8.3. Condemnation 


          Borrower
shall promptly give Lender notice of the actual or threatened commencement of
any proceeding for the Condemnation of the Property of which Borrower has
knowledge and shall deliver to Lender copies of any and all papers served in
connection with such proceedings. Lender may participate in any such
proceedings, and Borrower shall from time to time deliver to Lender all
instruments requested by it to permit such participation. Borrower shall, at
its expense, diligently prosecute (or shall cause the diligent prosecution of)
any such proceedings, and shall consult with Lender, its attorneys and experts,
and cooperate with them in the carrying on or defense of any such proceedings.
Notwithstanding any taking by any public or quasi-public authority through
Condemnation or otherwise (including but not limited to any transfer made in
lieu of or in anticipation of the exercise of such taking), Borrower shall
continue to pay the Debt at the time and in the manner provided for its payment
in the Note and in this Agreement and the Debt shall not be reduced until any
Award shall have been actually received and applied by Lender, after the
deduction of expenses of collection, to the reduction or discharge of the Debt.
Lender shall not be limited to the interest paid on the Award by the condemning
authority but shall be entitled to receive out of the Award interest at the
rate or rates provided herein or in the Note. If the Property or any portion thereof
is taken by a condemning authority, Borrower shall promptly commence and
diligently prosecute (or shall cause the prompt commencement and diligent
prosecution of) the Restoration of the Property and otherwise comply with the
provisions of Section 8.4, whether or not Lender makes any Net Proceeds
available pursuant to Section 8.4. If the Property is sold, through foreclosure
or otherwise, prior to the receipt by Lender of the Award, Lender shall have
the right, whether or not a deficiency judgment on the Note shall have been
sought, recovered or denied, to receive the Award, or a portion thereof
sufficient to pay the Debt.


          Section
8.4. Restoration


          The
following provisions shall apply in connection with the Restoration of the
Property:


          (a)
If the Net Proceeds shall be less than $500,000 and the costs of completing the
Restoration shall be less than $500,000, the Net Proceeds will be disbursed by
Lender to Borrower upon receipt, provided that all of the conditions set forth
in Section 8.4(b)(i) are met and Borrower delivers to Lender a written
undertaking to expeditiously commence and to satisfactorily complete with due
diligence the Restoration in accordance with the terms of this Agreement.


          (b)
If the Net Proceeds are equal to or greater than $500,000 or the costs of
completing the Restoration are equal to or greater than $500,000, Lender shall
make the Net Proceeds available for the Restoration in accordance with the
provisions of this Section 8.4. The term “Net Proceeds”
for purposes of this Section 8.4 shall mean: (i) the net amount of
all insurance proceeds received by Lender pursuant to Section 8.1(a)(i), (iv),
(vi) and (viii) as a result of a Casualty, after deduction of its reasonable
costs and expenses (including, but not limited to, reasonable counsel fees), if
any, in collecting the same (“Insurance
Proceeds”), or (ii) the net amount of the Award as a result of a
Condemnation, after deduction of its reasonable costs and expenses (including,
but not limited to, reasonable counsel fees), if any, in collecting the same (“Condemnation Proceeds”), whichever the
case may be.


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(i)
The Net Proceeds shall be made available to Borrower for Restoration provided
that each of the following conditions are met:


	
 

	
 


	
 

	
            (A) no Event of Default shall have occurred and be
 continuing;


	
 

	
 


	
 

	
            (B) (1) in the event the Net Proceeds are Insurance
 Proceeds, less than thirty percent (30%) of the total floor area of the
 Improvements on the Property has been damaged, destroyed or rendered unusable
 as a result of a Casualty or (2) in the event the Net Proceeds are
 Condemnation Proceeds, less than fifteen percent (15%) of the land
 constituting the Property is taken, such land is located along the perimeter
 or periphery of the Property, and no portion of the Improvements is located
 on such land;


	
 

	
 


	
 

	
            (C) Leases covering in the aggregate at least
 seventy-five percent (75%) of the total rentable space in the Property which
 has been demised under executed and delivered Leases in effect as of the date
 of the occurrence of such Casualty or Condemnation, whichever the case may
 be, shall remain in full force and effect during and after the completion of
 the Restoration without abatement of rent beyond the time required for
 Restoration;


	
 

	
 


	
 

	
            (D) Borrower shall commence the Restoration as soon
 as reasonably practicable (but in no event later than sixty (60) days after
 such Casualty or Condemnation, whichever the case may be, occurs) and shall
 diligently pursue the same to satisfactory completion;


	
 

	
 


	
 

	
            (E) Lender shall be satisfied that any operating
 deficits, including all scheduled payments of principal and interest under
 the Note, which will be incurred with respect to the Property as a result of
 the occurrence of any such Casualty or Condemnation, whichever the case may
 be, will be covered out of the insurance coverage referred to in Section
 8.1(a)(iii) above;


	
 

	
 


	
 

	
            (F) Lender shall be satisfied that the Restoration
 will be completed on or before the earliest to occur of (1) six (6) months
 prior to the Optional Prepayment Date, (2) the earliest date required for
 such completion under the terms of any Leases or material agreements
 affecting the Property, (3) such time as may be required under applicable
 zoning law, ordinance, rule or regulation, or (4) the expiration of the
 insurance coverage referred to in Section 8.1(a)(iii);


	
 

	
 


	
 

	
            (G) the Property and the use thereof after the
 Restoration will be in compliance with and permitted under all applicable
 Legal Requirements;


	
 

	
 


	
 

	
            (H) the Restoration shall be done and completed by
 Borrower in an expeditious and diligent fashion and in compliance with all
 applicable Legal Requirements;


	
 

	
 


	
 

	
            (I) such Casualty or Condemnation, as applicable, does
 not result in the permanent loss of access to the Property or the
 Improvements;





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          (J)
 Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower’s
 architect or engineer stating the entire cost of completing the
 Restoration, which budget shall be reasonably acceptable to Lender; and


	
 

	
 

	
 


	
 

	
 

	
          (K)
 the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient
 in Lender’s reasonable judgment to cover the cost of the Restoration.








	
 

	
 


	
 

	
          (ii)
 The Net Proceeds shall be held by Lender until disbursements commence, and, until disbursed in accordance with the
 provisions of this Section 8.4, shall constitute additional security for the Debt and other
 obligations under the Loan Documents. The Net Proceeds shall be disbursed
 by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon
 receipt of evidence reasonably satisfactory
 to Lender that (A) all the conditions precedent to such advance, including those set forth in Section 8.4(b)(i), have been
 satisfied, (B) all materials installed and work and labor performed (except to the extent that such materials,
 work or labor are to be paid for
 out of the requested disbursement) in connection with the related Restoration
 item have been paid for in full, and (C) there exist no notices of pendency,
 stop orders, mechanic’s or
 materialman’s liens or notices of intention to file same, or any other liens
 or encumbrances of any nature whatsoever on the Property which have not
 either been fully bonded to the satisfaction of Lender and discharged
 of record or in the alternative fully
 insured to the satisfaction of Lender by Title Company. Notwithstanding the foregoing, Insurance Proceeds from the Policies
 required to be maintained by Borrower pursuant to Section 8.1(a)(iii) shall be controlled by Lender at all
 times, shall not be subject to the provisions of this Section 8.4 and shall
 be used solely for the payment of the
 obligations under the Loan Documents and Operating Expenses.


	
 

	
 


	
 

	
          (iii)
 All plans and specifications required in connection with the Restoration shall be subject to prior review and reasonable
 acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Restoration Consultant”). Lender shall have the use of the plans and
 specifications and all permits, licenses
 and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and
 materialmen engaged in the Restoration, as well as the contracts in excess of
 $100,000 under which they have been engaged, shall be subject to prior review and reasonable acceptance
 by Lender and the Restoration Consultant.
 All out of pocket costs and expenses incurred by Lender in connection with making
 the Net Proceeds available for the Restoration, including, without
 limitation, reasonable counsel fees and
 disbursements and the Restoration Consultant’s fees, shall be paid by
 Borrower.


	
 

	
 


	
 

	
          (iv)
 In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the
 costs actually incurred from time to time for work in place as part of the Restoration, as certified by the
 Restoration Consultant, minus the
 Restoration Retainage. The term “Restoration
 Retainage” shall mean an amount equal to ten percent (10%)
 of the costs actually incurred for work in place as part of the Restoration, as certified by the Restoration
 Consultant, until the Restoration has been





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completed. The Restoration Retainage shall be
 reduced to five percent (5%) of the costs incurred
 upon receipt by Lender of satisfactory evidence that fifty percent (50%) of
 the Restoration has been completed. The Restoration Retainage shall in
 no event, and notwithstanding anything to
 the contrary set forth above in this Section 8.4(b), be less than or duplicative of the amount actually held
 back by Borrower from contractors, subcontractors and materialmen
 engaged in the Restoration. The Restoration Retainage shall not be released until the Restoration Consultant certifies to
 Lender that the Restoration has been completed in accordance with the
 provisions of this Section 8.4(b) and
 that all approvals necessary for the re-occupancy and use of the Property
 have been obtained from all appropriate Governmental Authorities, and Lender
 receives evidence reasonably
 satisfactory to Lender that the costs of the Restoration have been paid in
 full or will be paid in full out of the Restoration Retainage; provided,
 however, that Lender will release
 the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman
 engaged in the Restoration as of the date upon which the Restoration
 Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all
 work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or
 materialman’s contract, the contractor, subcontractor or materialman delivers
 the lien waivers and evidence of
 payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by
 Lender or by Title Company, and Lender receives an endorsement to the Title Insurance Policy insuring the
 continued priority of the lien of
 the Mortgage and evidence of payment of any premium payable for such
 endorsement. If required by Lender, the release of any such portion of the
 Restoration Retainage shall be
 approved by the surety company, if any, which has issued a payment or performance bond with respect to the
 contractor, subcontractor or materialman.


	
 

	
 


	
 

	
          (v)
 Lender shall not be obligated to make disbursements of the Net Proceeds more
 frequently than once every calendar month, except upon completion of the Restoration.


	
 

	
 


	
 

	
          (vi)
 If at any time the Net Proceeds or the undisbursed balance thereof shall not,
 in the reasonable opinion of Lender in consultation with the Restoration
 Consultant, be sufficient to pay in full
 the balance of the costs which are estimated by the Restoration Consultant to be incurred in connection with the
 completion of the Restoration, Borrower shall deposit the deficiency (the “Net Proceeds Deficiency”) with Lender
before any further
 disbursement of the Net Proceeds shall be made. The Net Proceeds Deficiency deposited with Lender shall be held by Lender
 and shall be disbursed for costs actually incurred in connection with
 the Restoration on the same conditions applicable to the disbursement of the
 Net Proceeds, and until so disbursed pursuant to this Section 8.4(b) shall constitute additional security for the
 Debt and other obligations under the Loan Documents.


	
 

	
 


	
 

	
          (vii)
 The excess, if any, of the Net Proceeds and the remaining balance, if any,-of
 the Net Proceeds Deficiency deposited with Lender after the Restoration
 Consultant certifies to Lender that the
 Restoration has been completed in accordance with the provisions of
 this Section 8.4(b), and the receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with
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shall be remitted by Lender to
 Borrower, provided no Event of Default shall have occurred and shall be continuing under the
 Note, this Agreement or any of the other Loan Documents.





          (c)
All Net Proceeds not required (i) to
be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant to Section
8.4(b)(vii) may (x) be retained and
applied by Lender toward the payment of the Debt whether or not then due and payable in the order, priority and proportions (1)
to the extent no Event of Default has occurred and is continuing, as set forth in the second sentence of Section
2.2(e) hereof, or (2) to the extent an
Event of Default has occurred and is continuing, as Lender in its sole
discretion shall deem proper, or, (y)
at the sole discretion of Lender, the same may be paid, either in whole or in
part, to Borrower for such purposes
and upon such conditions as Lender shall designate.


          (d)
In the event of foreclosure of the
Mortgage, or other transfer of title to the Property in extinguishment in whole
or in part of the Debt, all right, title and interest of Borrower in and to the Policies then in force
concerning the Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure,
Lender or other transferee in the event of such other transfer of title.


Notwithstanding anything to the contrary contained in
this Section 8.4, the applicable terms and conditions of the Sotheby’s Lease
shall control the disbursement of the Net Proceeds hereunder provided that (i) the Sotheby’s Lease is in full force
and effect; (ii) no Sotheby’s Event of Default
resulting from non-payment of Rent under the Sotheby’s Lease has occurred and
is continuing; (iii) no Event of
Default has occurred and is continuing; (iv) Lender, as Fee Mortgagee
under the Sotheby’s Lease is paid the Net Proceeds and is designated the
Casualty Depository (as defined in the
Sotheby’s Lease) or the Condemnation Depository (as defined in the Sotheby’s Lease), as the case may be, and is
entitled all rights and remedies appurtenant thereto under the Sotheby’s
Lease; and (v) each of Borrower and Sotheby’s continues to comply with all applicable terms and conditions of the
Sotheby’s Lease related to the disbursement of said Net Proceeds.


ARTICLE 9 

RESERVE FUNDS


          Section
9.1. Intentionally Omitted 


          Section
9.2. Replacements


          (a)
On an ongoing basis throughout the term of the Loan, Borrower shall make (or cause to be made) capital repairs, replacements
and improvements necessary to keep the Property in good order and repair and in a good marketable condition or prevent
deterioration of the Property, including, but not limited to, those
repairs, replacements and improvements more particularly
described in (i) the Physical Conditions Report prepared in connection with the
closing of the Loan and (ii) Schedule
I attached hereto and made a part hereof (collectively, the “Replacements”). Borrower shall complete all
Replacements (or cause
the same to be completed) in a good
and workmanlike manner as soon as commercially reasonable after commencing
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          (b)
In the event (i) of the occurrence and continuance of a Sotheby’s Event of Default, (ii) that Sotheby’s Guarantor’s
long-term
unsecured debt rating (or its equivalent Private Rating (to the extent applicable)) is downgraded below “B” (or its
equivalent) by any of the Rating
Agencies, (iii) the Sotheby’s Lease is no longer in full force or effect, or
(iv) the Optional Prepayment Date
shall have occurred, Borrower shall establish a sub-account of the Cash Management Account with Lender or Lender’s agent to
fund the Replacements (the “Replacement Reserve Account”) into which Borrower shall deposit $8,799.08 (the
“Replacement Reserve Monthly
Deposit”) into the Replacement
Reserve Account on each Scheduled
Payment Date. Amounts so deposited shall hereinafter be referred to as “Replacement Reserve Funds.” Lender may, in
its reasonable discretion, adjust
the Replacement Reserve Monthly
Deposit from time to time to an amount sufficient to maintain the proper
maintenance and operation of the Property. In the event Lender shall at any
time increase the Replacement Reserve Monthly Deposit, Borrower may, at
its election, request that Lender obtain, at the sole cost and expense of
Borrower, a Physical Conditions Report prepared by an engineer selected by
Lender in its reasonable discretion, in which case the Replacement Reserve Monthly Deposit shall be adjusted by Lender based
on the results of such report, provided that in no event shall such amounts be
reduced below the initial amount of the Replacement Reserve Monthly Deposit set
forth in herein.


          Section
9.3. Intentionally Omitted 


          Section
9.4. Required Work


          In the event the Sotheby’s Lease
is no longer in full force and effect, Borrower shall diligently pursue all
Replacements (collectively, the “Required Work”) to completion in accordance with
the following requirements:


          (a)
Lender reserves the right, at its
option, to approve all contracts or work orders with materialmen, mechanics, suppliers, subcontractors, contractors or
other parties providing labor or
materials in connection with the Required Work, provided that, prior to the
Optional Prepayment Date, Lender’s
approval shall only be required to the extent such contracts or work orders
exceed $50,000. Upon Lender’s request, Borrower shall assign (or cause to be
assigned) any contract or
subcontract to Lender.


          (b)
In the event Lender determines in its
reasonable discretion that any Required Work is not being or has not been performed in a workmanlike or timely
manner, Lender shall have the option to withhold disbursement for such
unsatisfactory Required Work and to proceed under existing contracts or to
contract with third parties to complete such Required Work and to apply the Replacement Reserve Funds toward the
labor and materials necessary to complete such Required Work, without providing
any prior notice to Borrower and to exercise any and all other remedies
available to Lender upon an Event of Default hereunder.


          (c)
In order to facilitate Lender’s completion of the Required Work,
Borrower grants Lender the right to enter
onto the Property and perform any and all work and labor necessary to complete
the Required Work and/or employ watchmen to protect the Property from damage.
All sums so expended by Lender, to the extent not from the Reserve Funds, shall
be deemed to have been advanced under the
Loan to Borrower and secured by the Mortgage. For this purpose


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Borrower constitutes and appoints Lender its true and
lawful attorney-in-fact with full power of substitution
to complete or undertake the Required Work in the name of Borrower upon Borrower’s failure to do so in a workmanlike and
timely manner. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Borrower empowers said attorney-in-fact as follows: (i) to use any of
the Reserve Funds for the purpose of making or completing the Required Work; (ii) to make such additions, changes and
corrections to the Required Work as shall be necessary or desirable to
complete the Required Work; (iii) to employ such contractors, subcontractors,
agents, architects and inspectors as shall be required for such purposes; (iv)
to pay, settle or compromise all existing bills and claims which are or may
become Liens against the Property, or as may
be necessary or desirable for the completion of the Required Work, or for clearance of title; (v) to
execute all applications and certificates in the name of Borrower which may be
required by any of the contract documents; (vi) to prosecute and defend
all actions or proceedings in connection with the Property or the
rehabilitation and repair of the Property;
and (vii) to do any and every act which Borrower might do on its own behalf
to fulfill the terms of this Agreement.


          (d)
Nothing in this Section 9.4 shall:
(i) make Lender responsible for making or completing the Required Work; (ii) require Lender to expend funds in
addition to the Reserve Funds to make
or complete any Required Work; (iii) obligate Lender to proceed with the Required Work; or (iv) obligate Lender to demand
from Borrower additional sums to make or complete any Required Work.


          (e)
Borrower shall permit Lender and Lender’s agents and representatives
(including, without limitation, Lender’s
engineer, architect, or inspector) or
third parties performing Required Work pursuant to this Section 9.4 to enter
onto the Property during normal business hours (subject to the rights of
tenants under their Leases) to inspect the progress of any Required Work and all materials being used in connection
therewith, to examine all plans and shop drawings relating to such Required Work which are or may be kept at the
Property, and to complete any Required Work made pursuant to this Section
9.4. Borrower shall cause all contractors and subcontractors to cooperate with
Lender and Lender’s representatives or such other persons described
above in connection with inspections described in this Section 9.4 or the
completion of Required Work pursuant to this Section 9.4.


          (f)
Lender may, to the extent any Required
Work would reasonably require an inspection
of the Property, inspect the Property at Borrower’s expense prior to making a disbursement
of the Reserve Funds in order to verify completion of the Required Work for
which reimbursement is sought. Borrower shall pay Lender a reasonable
inspection fee not exceeding $1,000 for each
such inspection. Lender may require
that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or
may require a copy of a certificate
of completion by an independent qualified professional acceptable to Lender
prior to the disbursement of the Reserve Funds. Borrower shall pay the expense of the
inspection as required hereunder,
whether such inspection is conducted by Lender or by an independent qualified
professional.


          (g)
The Required Work and all materials,
equipment, fixtures, or any other item comprising
a part of any Required Work shall be constructed, installed or completed, as


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applicable, free and clear of all
mechanic’s, materialman’s or other Liens (except for Permitted Encumbrances).


          (h)
Before each disbursement of the Reserve Funds, Lender may require Borrower to
provide Lender with a search of title to the Property effective to the date of
the disbursement, which search shows that no mechanic’s or materialmen’s
or other Liens of any nature have been placed
against the Property since the date of recordation of the Mortgage and that
title to the Property is free and clear of all Liens (except for
Permitted Encumbrances).


          (i)
All Required Work shall comply with all Legal Requirements and applicable insurance requirements including, without
limitation, applicable building codes, special use permits,
environmental regulations, and requirements of insurance underwriters.


          (j)
Borrower hereby assigns to Lender all rights and claims Borrower may have against all Persons supplying labor or materials
in connection with the Required Work; provided, however, that Lender may
not pursue any such rights or claims unless an Event of Default has occurred and
remains uncured.


          Section
9.5. Release of Replacement Reserve
Funds


	
 

	
 

	
 

	
 


	
          (a) To the extent the Sotheby’s Lease is
 in full force and effect, upon Lender’s receipt of a certification from Borrower stating that a Replacement has been completed
 in accordance with Section 8 of the
 Sotheby’s Lease, Borrower shall, subject to Section 9.5(c) below, be
 entitled to a disbursement from the Replacement Reserve Account in an amount
 equal to the cost of such Replacement.


	
 

	
 

	
 

	
 


	
          (b) To
 the extent the Sotheby’s Lease is not in full force and effect, the following
 provisions shall control:


	
 

	
 

	
 

	
 


	
 

	
          (i)
 Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall
 disburse to Borrower amounts from the Replacement Reserve Account to
 the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements. Notwithstanding the
 preceding sentence, in no event
 shall Lender be required to (y) disburse funds from any of the Reserve Accounts if an Event of Default exists,
 or (z) disburse funds from the Replacement Reserve Account to
 reimburse Borrower for the costs of routine repairs or maintenance to the
 Property.


	
 

	
 

	
 

	
 


	
 

	
          (ii)
 Each request for disbursement from the Replacement Reserve Account shall be on a form provided or reasonably
 approved by Lender and shall (i) include copies of invoices for all
 items or materials purchased and all labor or services provided and (ii)
 specify the Required Work for which the disbursement is requested. With each
 request Borrower shall certify that all Required Work has been performed in
 accordance with all Legal Requirements. Except as provided in Section
 9.5(b)(iv), each request for disbursement
 shall be made only after completion of the Replacement (or the portion thereof completed in accordance with Section
 9.5(b)(iv), as applicable, for which disbursement
 is requested. Borrower shall provide Lender evidence satisfactory to Lender
 in its reasonable judgment of such completion or performance.





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 (iii) Borrower shall pay all invoices in connection with the Required Work with
 respect to which a disbursement is requested prior to submitting such request
 for disbursement from the Replacement
 Reserve Account or, at the request of Borrower, Lender will either (A) issue joint checks,
 payable to Borrower and the contractor, supplier, materialman,
 mechanic, subcontractor or other party to whom payment is due in connection
 with the Required Work or (B) make payment to such contractor, supplier, materialman, mechanic, subcontractor or other
 party directly. In the case of direct payment and payments made by joint check, Lender may require a waiver
 of lien from each Person receiving
 payment prior to Lender’s disbursement of the Replacement Reserve Funds. In addition, as a condition to
 any disbursement, Lender may require Borrower
 to obtain lien waivers from each contractor, supplier, materialman, mechanic or
 subcontractor who receives payment in an amount equal to or greater
 than $10,000 for completion of its work or delivery of its materials. Any
 lien waiver delivered hereunder shall
 conform to all Legal Requirements and shall cover all work performed and materials
 supplied (including equipment and fixtures) for the Property by that
 contractor, supplier, subcontractor, mechanic or materialman through the date
 covered by the current disbursement
 request (or, in the event that payment to such contractor, supplier, subcontractor,
 mechanic or materialmen is to be made by a joint check, the release of lien
 shall be effective through the date covered by the previous release of funds
 request).


	
 

	
 


	
 

	
           (iv) If (1) the cost of any item of Required
 Work exceeds $50,000, (2) the contractor performing such Required Work
 requires periodic payments pursuant to terms of a written contract, and (3)
 Lender has approved in writing in advance such periodic payments, a request for disbursement from the
 Replacement Reserve Account may be made after completion of a portion
 of the work under such contract, provided (A) such contract requires payment
 upon completion of such portion of work, (B) the materials for which the request is made are on site at the
 Property and are properly secured or have been installed in the Property, (C) all other conditions in this
 Agreement for disbursement have been satisfied, and (D) funds remaining in
 the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other
 Replacements when required.


	
 

	
 


	
 

	
           (v) In the event any Borrower requests a
disbursement from the Replacement Reserve
Account to pay for or reimburse Borrower for the actual cost of labor or materials
used in connection with repairs or improvements other than the Replacements specified in the Physical Conditions Report
prepared in connection with the closing of the Loan (an “Additional Replacement”), Borrower shall disclose in writing
to Lender the reason why funds in the Replacement Reserve Account
should be used to pay for such Additional Replacement. If Lender determines
that (i) such Additional Replacement is of the type intended to be covered by
the Replacement Reserve Account, (ii) Intentionally Omitted, (iii) costs for
such Additional Replacement are reasonable, (iv) the funds in the Replacement
Reserve Account are sufficient to pay for such Additional Replacement and all
other Replacements for the Property specified in the Physical Conditions
Report, and (v) all other conditions for
disbursement under this Agreement have been met, Lender may disburse
funds from the Replacement Reserve Account. 





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           (vi) If the funds in the Replacement Reserve
 Account should exceed the amount of
 payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any
 excess to Borrower or credit such excess against future payments to be made to the Replacement Reserve Account.
 In allocating any such excess,
 Lender may deal with the Person shown on Lender’s records as being the owner of the Property. If at any time Lender
 reasonably determines that the Replacement
 Reserve Funds are not or will not be sufficient to make the required payments,
 Lender shall notify Borrower of such determination and Borrower shall pay to
 Lender any amount necessary to make up the deficiency within ten (10) days
 after notice from Lender to Borrower requesting payment thereof.





          (c)
Borrower shall not make a request
for, nor shall Lender have any obligation to make, any disbursement from the Replacement Reserve Account more
frequently than once in any calendar month and (except in connection with the
final disbursement) in any amount less than
the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which
the disbursement is requested.


          (d)
Lender’s disbursement of any Reserve
Funds or other acknowledgment of completion
of any Required Work in a manner satisfactory to Lender shall not be deemed a certification
or warranty by Lender to any Person that the Required Work has been completed
in accordance with Legal Requirements.


          (e)
The insufficiency of any balance in any of the Reserve Accounts shall
not relieve Borrower from its obligation to
fulfill or cause to be fulfilled all preservation and maintenance covenants
in the Loan Documents.


          (f)
Upon payment in full of the Debt, all amounts remaining on deposit, if
any, in the Replacement Reserve Account shall
be returned to Borrower or the Person shown on Lender’s records as being the owner of the Property and no
other party shall have any right or claim thereto.


          Section
9.6. Tax and Insurance Reserve Funds


          In
the event (i) of the occurrence and continuance of a Sotheby’s Event of
Default, (ii) that Sotheby’s
Guarantor’s long-term unsecured debt rating (or its equivalent Private Rating
(to the extent applicable)) is
downgraded below “B” (or its equivalent) by any of the Rating Agencies, or
(iii) the Sotheby’s Lease is no longer in full force and effect, Borrower shall
establish a sub-account of the Cash
Management Account with Lender or Lender’s agent (the “Tax and Insurance Reserve
Account”) into which Borrower
shall deposit (I) upon the occurrence
of any event described in clauses (i) through (iii) above, an amount reasonably
determined by Lender, which such
amount, when added to the required monthly deposits set forth in the following clause (II), is sufficient
to make payments of Taxes and Insurance Premiums as required herein, and (II) on each Scheduled Payment Date (a)
one-twelfth of the Taxes that Lender
reasonably estimates will be payable during the next ensuing twelve (12) months
or such higher amount necessary to accumulate with Lender sufficient funds to
pay all such Taxes at least thirty (30) days prior to the earlier of (i) the
date that the same will become delinquent and (ii) the date that additional
charges or interest will accrue due to the non-payment


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thereof, and (b) except
to the extent Lender has waived the insurance escrow because the insurance
required hereunder is maintained under a blanket insurance Policy acceptable to
Lender in accordance with Section 8.1(c), one-twelfth of the Insurance Premiums
that Lender estimates will be payable during
the next ensuing twelve (12) months for the renewal of the coverage afforded by the Policies upon the expiration
thereof or such higher amount necessary to accumulate with Lender
sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies (said
amounts in (a) and (b) above hereinafter called the “Tax and Insurance Reserve Funds”). Lender
will apply the Tax and Insurance Reserve Funds
to payments of Taxes and Insurance Premiums required to be made by Borrower
pursuant to Section 5.4 and Section 8.1 hereof. In making any disbursement from
the Tax and Insurance Reserve Account, Lender may do so according to any
bill, statement or estimate procured from the appropriate public office or tax
lien service (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), 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 the Tax and Insurance
Reserve Funds shall exceed the amounts due for Taxes and Insurance Premiums pursuant to Section 5.4 and Section 8.1
hereof, Lender shall, in its sole
discretion, return any excess to Borrower or credit such excess against future
payments to be made to the Tax and Insurance Reserve Account. In
allocating any such excess, Lender may deal
with the person shown on Lender’s records as being the owner of the Property.
Any amount remaining in the Tax and Insurance Reserve Account after the Debt
has been paid in full shall be returned
to Borrower or the person shown on Lender’s records as being the owner of the Property and no other party shall have any right or
claim thereto. If at any time Lender reasonably
determines that the Tax and Insurance Reserve Funds are not or will not be
sufficient to pay Taxes and Insurance Premiums by the dates set forth in
(a) and (b) above, Lender shall notify
Borrower of such determination and Borrower shall pay to Lender any amount
necessary to make up the deficiency
within ten (10) days after notice from Lender to Borrower requesting payment
thereof.


          Section
9.7. Debt Service Reserve


          In
the event (A) of the occurrence and continuance of a Sotheby’s Event of
Default, (B) that Sotheby’s Guarantor’s
long-term unsecured debt rating (or its equivalent Private Rating (to the extent applicable)) is downgraded below “B”
(or its equivalent) by any of the Rating Agencies or (C) the Sotheby’s
Lease is no longer in full force and effect (each, a “Debt Service Reserve Event”), Borrower shall establish an
Eligible
Account with Lender or Lender’s agent (such
account, the “Debt Service Reserve Account”) into
which Borrower shall deposit an amount equal to $7,133,600.88 (the “Debt Service Reserve Funds”). Provided no
Event of Default has occurred and is continuing, sums on deposit in the Debt
Service Reserve Account shall be
disbursed to Borrower upon (a) (i) in the event such funds were deposited into
the Debt Service Reserve Account
pursuant to clause (A) above, the cure by Sotheby’s of such Sotheby’s Event of Default, or (ii) in the event such funds
were deposited into the Debt Service Reserve Account pursuant to clause (B) above, Sotheby’s Guarantor achieving a
long-term unsecured debt rating (or
its equivalent Private Rating (to the extent applicable)) of “B” (or its
equivalent) or greater from each of
the Rating Agencies, as applicable, and (b) Lender’s receipt of confirmation from each of the Rating Agencies that
such disbursement will not result in a downgrade, withdrawal or
qualification of the initial, or if higher, then current ratings issued in connection with a Securitization, or if a
Securitization has not occurred, any ratings to be


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assigned
in connection with a Securitization. Notwithstanding anything to the contrary contained herein, Borrower may, at
Borrower’s option, provide a Letter
of Credit in lieu of any of the cash
deposits required to be made pursuant to this Section 9.7, provided that (i)
such Letter of Credit is in the amount of the cash
deposits required thereunder and otherwise meets all applicable requirements related thereto contained herein,
and (ii) Borrower gives Lender ten (10) Business Days prior
notice thereof and delivers to Lender a revised substantive non-consolidation
opinion reflecting the delivery of such Letter of Credit, which opinion shall
be in form, scope and substance acceptable
in all respects to the Rating Agencies and in form, scope and substance reasonably
acceptable in all respects to Lender. In the event that Borrower so chooses
to provide any such Letter of Credit, (i) in the event such Letter of Credit is
provided to Lender in substitution of any funds then held by Lender in the Debt
Service Reserve Account, Lender shall, upon
receipt of such Letter of Credit, disburse said funds to Borrower, and (ii) Lender’s “disbursement” of funds set forth
in
this Section 9.7 shall be deemed to refer to Lender transferring such Letter of
Credit to Borrower.


          Section
9.8. Operating Expenses; Extraordinary Expenses


          (a)
Upon the occurrence of the Optional Prepayment Date,
Borrower shall establish an Eligible Account with Lender or Lender’s agent into
which Borrower shall deposit, on each Scheduled Payment
Date from and after the Optional Prepayment Date, funds sufficient to pay all Operating Expenses required to be
incurred during the following month
in accordance with the Annual Budget approved by Lender (the
“Operating Expense Reserve Account”). Amounts so deposited shall hereinafter be referred
to as the “Operating Expense Reserve Funds”. Provided no Event of Default has occurred and is
continuing, sums from the Operating Expense
Reserve Account shall be disbursed by Lender to Borrower following receipt and approval
of Borrower’s written request for the payment of such Operating Expenses.


          (b)
Upon the occurrence of the Optional Prepayment Date,
Borrower shall establishan Eligible Account
with Lender or Lender’s agent into which Borrower shall deposit, on each Scheduled Payment Date from and
after the Optional Prepayment Date,
funds sufficient to pay any Extraordinary
Expenses, if any, for the following month which have been approved by Lender (the “Extraordinary Expense
Reserve Account”). Amounts
so deposited shall hereinafter be referred to as the “Extraordinary Expense Reserve Funds”. Provided no Event of
Default has occurred and is continuing, sums
from the Extraordinary Expense Reserve Account shall be disbursed by
Lender to Borrower following receipt and approval of Borrower’s written request for the payment of such
Extraordinary Expenses.


          Section
9.9. Reserve Funds Generally


          (a)          (i)
No earnings or interest on the Tax and Insurance Reserve Account shall be payable to Borrower. Neither Lender nor any
loan servicer that at any
time holds or maintains such non-interest-bearing Reserve Account
shall have any obligation to keep or maintain such Reserve Account or any funds deposited therein in interest-bearing
accounts. If Lender or any such loan
servicer elects in its sole and absolute discretion to keep or maintain any
such non-interest-bearing Reserve Account or any funds deposited therein
in an interest-bearing account, the account
shall be an Eligible Account and (A) such funds shall not be invested except in


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Permitted
Investments, and (B) all interest earned or accrued thereon shall be for the
account of and be retained by Lender or such loan
servicer.


                    (ii)
Funds deposited in the Reserve Accounts (other than the Tax and Insurance Reserve Account) shall be held in one or more
Permitted
Investments and interest shall be credited to
Borrower. In no event shall Lender or any loan servicer that at any time holds
or maintains such Reserve Accounts be required to select any particular
interest-bearing account or the account that yields the highest rate of
interest, provided that selection of the account shall be consistent with the
general standards at the time being utilized by Lender or the loan servicer, as applicable,
in establishing similar accounts for loans of comparable type. All such
interest shall be and become part of the
applicable Reserve Account, and shall be disbursed in accordance with the applicable terms and conditions hereof;
provided, however, that Lender may, at its election, retain any such interest for its own account
during the occurrence and continuance of an Event of Default. Borrower agrees that it shall include all
interest on such Reserve Funds as the income of Borrower (and, if
Borrower is a partnership or other pass-through entity, the partners, members or beneficiaries of Borrower, as the case
may be), and shall be the owner of such Reserve Funds for federal and applicable state and local tax purposes,
except to the extent that Lender
retains any interest for its own account during the occurrence and continuance
of an Event of Default (provided,
further, that, upon a cure (if any) of such Event of Default and Lender’s
acceptance of the same, any such interest shall be deemed to be income of (and
for the account of) Borrower).


          (b) Borrower grants to
Lender a first-priority perfected security interest in, and assigns and pledges to Lender, each of the Reserve
Accounts and any and
all Reserve Funds now or hereafter
deposited in the Reserve Accounts as additional security for payment of the
Debt. Until expended or applied in accordance herewith, the Reserve Accounts and the
Reserve Funds shall constitute additional
security for the Debt. The provisions of this Section 9.9 are intended to give Lender or any subsequent holder of the Loan
“control” of the Reserve Accounts within the meaning of the UCC.


          (c)
The
Reserve Accounts and any and all Reserve Funds now or hereafter deposited in the Reserve Accounts shall be subject to the
exclusive dominion and control of Lender, which shall hold the Reserve
Accounts and any or all Reserve Funds now or hereafter deposited in the Reserve Accounts subject to the terms and
conditions of this Agreement. Borrower shall have no right of withdrawal from the Reserve Accounts or any
other right or power with respect to the Reserve Accounts or any or all of the Reserve Funds now or hereafter
deposited in the Reserve Accounts,
except as expressly provided in this Agreement.


          (d)
Lender shall furnish or cause to be furnished to
Borrower, without charge, an annual accounting of each Reserve Account
in the normal format of Lender or its loan servicer, showing credits and debits to such Reserve Account and the purpose for
which each debit to each Reserve
Account was made.


          (e)
As long as no Event of Default has occurred and is
continuing, Lender shall make disbursements from
the Reserve Accounts in accordance with this Agreement. All such disbursements shall be deemed to have been
expressly pre-authorized by
Borrower, and shall not be deemed to
constitute the exercise by Lender of any remedies against Borrower unless an


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Event
of Default has occurred and is continuing and Lender has expressly stated in
writing its intent to proceed to exercise its
remedies as a secured party, pledgee or lienholder with respect to the Reserve
Accounts.


          (f)
If any Event of Default occurs, Borrower shall
immediately lose all of its rights to receive disbursements from the Reserve
Accounts until the earlier to occur of (i) the date on which such Event of Default is cured and Lender has accepted such cure,
or (ii) the payment in full of the Debt. In addition, at Lender’s election,
Borrower shall lose all of its rights to receive interest on the applicable
Reserve Accounts upon the occurrence and during the continuance of an
Event of Default. Upon the occurrence and continuance of any Event of Default,
Lender may exercise any or all of its rights and remedies as a secured party,
pledgee and lienholder with respect to the
Reserve Accounts. Without limitation of the foregoing, upon any Event of Default, Lender may use and disburse the Reserve
Funds (or any portion thereof) for any of the following purposes: (A) repayment of the Debt, including, but not limited
to, principal prepayments and the
prepayment premium applicable to such full or partial prepayment (as applicable); (B) reimbursement of Lender for all
losses, out of pocket fees, costs and expenses (including, without limitation, reasonable legal fees) suffered or
incurred by Lender as a result of such
Event of Default; (C) payment of any amount expended in exercising any or all
rights and remedies available to Lender at law or in equity or under
this Agreement or under any of the other
Loan Documents; (D) payment of any item from any of the Reserve Accounts as
required or permitted under this
Agreement; or (E) any other purpose permitted by applicable law; provided, however, that any such application of
funds shall not cure or be deemed to cure any Event of Default. Without limiting any other provisions hereof, each of
the remedial actions described in the
immediately preceding sentence shall be deemed to be a commercially reasonable exercise of Lender’s rights and remedies
as a secured party with respect to the Reserve
Funds and shall not in any event be deemed to constitute a set off or a
foreclosure of a statutory banker’s lien. Nothing in this Agreement
shall obligate Lender to apply all or any portion
of the Reserve Funds to effect a cure of any Event of Default, or to pay the
Debt, or in any specific order of priority. The exercise of any or all of
Lender’s rights and remedies under this
Agreement or under any of the other Loan Documents shall not in any way
prejudice or affect Lender’s right to initiate and complete a
foreclosure under the Mortgage.


          (g)
The Reserve Funds shall not constitute escrow or trust
funds and may be commingled with
other monies held by Lender. Notwithstanding anything else herein to the contrary,
Lender may commingle in one or more Eligible Accounts any and all funds
controlled by Lender, including, without
limitation, funds pledged in favor of Lender by other borrowers, whether for the same purposes as the Reserve
Accounts or otherwise. Without limiting any other provisions of this Agreement or any other Loan
Document, the Reserve Accounts may be established
and held in such name or names as Lender or its loan servicer, as agent for
Lender, shall deem appropriate,
including, without limitation, in the name of Lender or such loan servicer as
agent for Lender. In the case of any Reserve Account which is held in a
commingled account, Lender or its loan
servicer, as applicable, shall maintain records sufficient to enable it to determine at all times which portion of such
account is related to the Loan. The Reserve Accounts are solely for the
protection of Lender. With respect to the Reserve Accounts, Lender shall have no responsibility beyond the allowance
of due credit for the sums actually received by Lender or beyond the reimbursement or payment of the costs and expenses
for which such accounts were
established in accordance with their terms. Upon assignment of the Loan by


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Lender, any Reserve Funds shall be turned over to the
assignee and any responsibility of Lender as assignor shall terminate. The
requirements of this Agreement concerning Reserve Accounts in no way supersede, limit or waive any other
rights or obligations of the parties under any of the Loan Documents or under
applicable law.


          (h)
Borrower shall not, without obtaining the prior written consent of Lender,
further pledge, assign or grant any security
interest in the Reserve Accounts or the Reserve Funds deposited therein
or permit any Lien to attach thereto, except for the security interest granted
in this Section 9.9, or any levy to be made
thereon, or any UCC Financing Statements, except those naming Lender as the
secured party, to be filed with respect thereto.


          (i)
Borrower will maintain the security interest created by this Section 9.9 as a
first priority perfected security
interest and will defend the right, title and interest of Lender in and to the
Reserve Accounts and the Reserve Funds against the claims and demands of all
Persons whomsoever. At any time and from time to time, upon the written
request of Lender, and at the sole expense
of Borrower, Borrower will promptly and duly execute and deliver such further
instruments and documents and will take such further actions as Lender
reasonably may request for the purpose of obtaining or preserving the
full benefits of this Agreement and of the rights and powers herein granted.


ARTICLE 10

CASH MANAGEMENT


          Section
10.1. Cash Management Account


          (a) Borrower acknowledges and confirms
that Borrower has established, and Borrower
covenants that it shall maintain, an Eligible Account with Lender or Lender’s
agent (in such capacity, the “Cash Management Bank”) into which Borrower
shall, and shall cause Manager and each Tenant to, deposit or cause to
be deposited, all Rents and other revenue from the Property (such account, all funds at any time on deposit therein and
any proceeds, replacements or
substitutions of such account or funds therein, are referred to herein as the “Cash Management Account”).


          (b) The Cash Management Account shall be in
the name of Borrower in trust for the benefit
of Lender, provided that Borrower shall be the owner of all funds on deposit in
such accounts for federal and applicable state and local tax purposes (except
to the extent Lender retains any
interest earned on the Cash Management Account for its own account). Sums on deposit in the Cash Management Account shall not be
invested except in such Permitted Investments
as determined and directed by Lender and all income earned thereon shall be the
income of Borrower (other than income
earned on the Tax and Insurance Reserve Funds or income earned after the occurrence and continuance of an Event of
Default (provided, that, upon a cure (if any) of such Event of Default
and Lender’s acceptance of the same, any such income shall be deemed to be income of (and for the account of) Borrower)).
Lender shall have no liability for any
loss resulting from the investment of funds in Permitted Investments in accordance with the terms and conditions of this
Agreement.


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          (c) The
Cash Management Account shall be subject to the exclusive dominion and control of Lender and, except as otherwise
expressly provided herein, neither Borrower, Manager nor any other party claiming on behalf of, or through, Borrower
or Manager, shall have any right of withdrawal therefrom or any other right or
power with respect thereto.


          (d) Borrower
agrees to pay the customary fees and expenses of Lender (incurred in connection with maintaining the Cash Management
Account) and any successors thereto in connection
therewith, as separately agreed by them from time to time.


          (e) Lender shall be responsible for the
performance only of such duties with respect to
the Cash Management Account as are specifically set forth herein, and no duty
shall be implied from any provision hereof. Lender shall not be under
any obligation or duty to perform any act
which would involve it in expense or liability or to institute or defend any
suit in respect hereof, or to advance any of its own monies. Borrower
shall indemnify and hold Lender and its directors,
employees, officers and agents harmless from and against any loss, cost or
damage (including, without
limitation, reasonable out of pocket attorneys’ fees and disbursements) incurred
by such parties in connection with the Cash Management Account other than such
as a result from the gross negligence or willful misconduct of Lender or
intentional nonperformance by Lender of its
obligations under this Agreement.


	
 

	
 


	
 

	
Section 10.2. Deposits and Withdrawals


	
 

	
 


	
 

	
(a) Borrower represents,
 warrants and covenants that:


	
 

	
 


	
 

	
          (i) Concurrently with the execution of this
 Agreement, Borrower shall notify and
 advise Sotheby’s to send directly to the Cash Management Account all payments
 of Rents or any other item payable
 under the Sotheby’s Lease pursuant to an instruction letter substantially in the form of Exhibit C
 attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice
 (and without prejudice to Lender’s rights with respect to such
 default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which
 power of attorney shall be coupled with an interest and irrevocable so
 long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;


	
 

	
 


	
 

	
          (ii) Borrower shall, and shall cause Manager to,
 instruct all Persons that maintain
 open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an
 “accounts receivable” basis with respect to the Property to deliver all payments
 due under such accounts to the Cash Management Account. Neither Borrower nor Manager shall direct any such Person to
 make payments due under such
 accounts in any other manner;


	
 

	
 


	
 

	
          (iii) All Rents or other income from the
 Property shall (A) be deemed additional security for payment of the
 Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds
 or property of Borrower or Manager, and (C) if received by Borrower or
 Manager notwithstanding the delivery of a Tenant Direction Letter, be
 deposited in the Cash Management Account within
 five (5) Business Days of receipt;





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          (iv) Without the prior written consent of
 Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall
 terminate, amend, revoke or modify any Tenant Direction Letter in any
 manner whatsoever or direct or cause any Tenant
 to pay any amount in any manner other than as provided in the related Tenant
 Direction Letter; and


	
 

	
 


	
 

	
          (v) So long as any portion of the Debt remains
 outstanding, neither Borrower, Manager nor any other Person shall open or
 maintain any accounts other than the Cash Management Account into
 which revenues from the ownership and operation of the Property are deposited. The foregoing shall not
 prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that
 have been transferred to Borrower
 pursuant to the express terms of this Agreement.


	
 

	
 


	
           (b)       (i)
On each Scheduled Payment Date prior to the
 Optional Prepayment Date (and if
 such day is not a Business Day, then the immediately preceding day which is a
 Business Day), Borrower hereby irrevocably authorizes Lender to withdraw or
 allocate to the following sub-accounts of the Cash Management Account,
 as the case may be, amounts received in the Cash Management Account, in each
 case to the extent that sufficient funds remain therefor, in the following amounts and order of priority:


	
 

	
 


	
 

	
               (A) if
 required pursuant to Section 9.6 hereof, funds sufficient to pay the monthly deposits to the Tax and Insurance
 Reserve Account, if any, shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in
 accordance with Section 9.6;


	
 

	
 


	
 

	
               (B) funds
 sufficient to pay the I/O Monthly Payment Amount or Monthly Payment Amount, as applicable, shall be
 withdrawn and paid to Lender;


	
 

	
 


	
 

	
               (C) if
 required pursuant to Section 9.2(b) hereof, funds sufficient to pay the Replacement Reserve Monthly Deposit, if
 any, shall be allocated to the Replacement
 Reserve Account to be held and disbursed in accordance with Section 9.5;


	
 

	
 


	
 

	
               (D) funds
 sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums
 due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied
 against such items; and


	
 

	
 


	
 

	
               (E) funds
 in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after
 the foregoing withdrawals and allocations shall be disbursed to Borrower provided no Event of Default has
 occurred and is continuing.


	
 

	
 


	
                      (ii)
 On each Scheduled Payment Date from and after the Optional Prepayment Date
 (and if such day is not a Business Day, then the immediately preceding day
 which is a Business Day), Borrower hereby
 irrevocably authorizes Lender to withdraw or allocate to the following
 sub-accounts of the Cash Management Account, as the case may be, amounts
 received in the Cash Management
 Account, in each case to the extent that sufficient funds remain therefor, in the following amounts and order of
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               (A) if
 required pursuant to Section 9.6 hereof, funds sufficient to pay the monthly deposits to the Tax and Insurance
 Reserve Account, if any, shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in
 accordance with Section 9.6;


	
 

	
 


	
 

	
               (B) funds sufficient
to pay Operating Expenses for
 the following month to be incurred in accordance with the related Annual
 Budget shall be allocated to the Operating
 Expense Reserve Account to be held and disbursed in accordance with Section 9.8;


	
 

	
 


	
 

	
               (C) funds
 sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;


	
 

	
 


	
 

	
               (D) funds
 sufficient to pay the Replacement Reserve Monthly Deposit, if any, shall be allocated to the Replacement
 Reserve Account to be held and disbursed in accordance with Section 9.5;


	
 

	
 


	
 

	
               (E) funds
 sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums
 due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied
 against such items; and


	
 

	
 


	
 

	
               (F) funds
 sufficient to pay any Additional Replacements for the following month which have been approved by
 Lender shall be allocated to the Replacement
 Reserve Account to be held and disbursed in accordance with Section 9.5;


	
 

	
 


	
 

	
               (G) funds
 sufficient to pay any Extraordinary Expenses for the following month which have been approved by
 Lender shall be allocated to the Extraordinary
 Expense Account to be held and disbursed in accordance with Section 9.8;


	
 

	
 


	
 

	
               (H) provided no
Event of Default shall have
 occurred and be continuing, funds
 in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing
 withdrawals and allocations (“Excess Cash Flow”) shall be withdrawn and paid to Lender to be applied, in each case
pro
 rata (based on the initial
 principal balance of Note A and Note B) to Note A and Note B, (1) first, to
 the reduction of the outstanding principal balance of the Loan, (2) second,
 to the payment of Accrued Interest
 (without duplication of any amount paid pursuant to Section 10.2(b)(ii)(C)),
 and (3) third, to the extent permitted under applicable law, to the payment of interest on the Accrued Interest at the
 Revised Note Rate (without duplication of any amount paid pursuant to Section
 10.2(b)(ii)(C)).


	
 

	
 


	
           (c) Notwithstanding anything to the contrary
 herein, Borrower acknowledges that Borrower
 is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable
 for any deficiency in available funds, irrespective of whether
 Borrower has received any account statement, notice or demand from Lender or
 Lender’s servicer. If the amount on deposit in the Cash Management Account is
 insufficient to make all of the
 withdrawals and allocations described in Section 10.2(c)(i) through (iv) above, Borrower shall deposit such
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five (5) days (provided that such
five day period shall not constitute a grace period for any default or Event of Default under this Agreement
or any other Loan Document based on a failure to satisfy any monetary
obligation provided in any Loan Document).


          (d) Notwithstanding any other provision contained
in this Agreement or in any of the other
Loan Documents, if an Event of Default shall have occurred and be continuing,
Borrower shall have no rights to receive any sums on deposit in the Cash
Management Account or the Reserve Accounts
and Borrower hereby irrevocably authorizes Lender to (I) liquidate and transfer
any amounts then invested in Permitted Investments pursuant to the applicable
terms hereof to the Reserve Accounts 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 pursuant to the other Loan
Documents or to enable Lender to exercise
and enforce Lender’s rights and remedies hereunder or under any other Loan Document with respect to any Reserve Account, and
(II) make any and all withdrawals from the Cash Management Account and transfers between any of the Reserve
Accounts as Lender shall determine in
Lender’s sole and absolute discretion and Lender shall apply such funds as set
forth in Section 10.3(c) below. Lender’s right to withdraw and apply funds as
stated herein shall be in addition to all other rights and remedies provided to
Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.


          Section
10.3. Security Interest


          (a) To
secure the full and punctual payment of the Debt and performance of all obligations of Borrower now or hereafter existing
under this Agreement and the other Loan Documents, Borrower hereby grants to Lender a first-priority perfected
security interest in the Cash
Management Account, all interest, cash, checks, drafts, certificates and
instruments, if any, from time to time
deposited or held therein, any and all amounts invested in Permitted Investments, and all “proceeds” (as defined in the
UCC as in effect in the state in which the Cash Management Account is located or maintained) of any or all of the
foregoing. Furthermore, Borrower shall not, without obtaining the prior
written consent of Lender, further pledge, assign or grant any security
interest in any of the foregoing or permit any Lien to attach thereto or any levy to be made thereon or any UCC Financing
Statements to be filed with respect thereto. Borrower will maintain the security interest created by this Section
10.3(a) as a first priority perfected
security interest and will defend the right, title and interest of Lender in
and to the Cash Management Account
against the claims and demands of all Persons whomsoever.


          (b) Borrower
authorizes Lender to file any financing statement or statements required by Lender to establish or maintain the validity,
perfection and priority of the security interest granted herein in
connection with the Cash Management Account. Borrower agrees that at any time and from time to time, at the expense of
Borrower, Borrower will promptly and duly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or desirable, or that Lender may reasonably request, in order to
perfect and protect any security interest
granted or purported to be granted hereby (including, without limitation, any
security interest in and to any Permitted Investments) or to enable Lender to
exercise and enforce its rights and
remedies hereunder.


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          (c) Upon the occurrence and continuance of an Event
of Default, Lender may exercise any
or all of its rights and remedies as a secured party, pledgee and lienholder
with respect to the Cash Management Account. Without limitation of the
foregoing, upon any Event of Default, Lender may use the Cash Management
Account for any of the following purposes: (A)
repayment of the Debt, including, but not limited to, principal prepayments and
the prepayment premium applicable to
such full or partial prepayment (as applicable), and any such payments may be applied by Lender to Note A and/or
Note B in such order and priority as Lender may determine in its sole
and absolute discretion; (B) reimbursement of Lender for all losses, out of pocket fees, costs and expenses
(including, without limitation, reasonable legal fees) suffered or
incurred by Lender as a result of such Event of Default; (C) payment of any
amount expended in exercising any or all rights and remedies available to
Lender at law or in equity or under this Agreement or under any of the other
Loan Documents; or (D) payment of any item as required or permitted under this
Agreement; provided, however, that any such application of funds shall not cure
or be deemed to cure any Event of Default. Without limiting any other provisions hereof, each of the remedial
actions described in the immediately preceding sentence shall be deemed to be a commercially reasonable exercise of
Lender’s rights and remedies as a
secured party with respect to the Cash Management Account and shall not in any event be deemed to constitute a setoff or a
foreclosure of a statutory banker’s lien. Nothing in this Agreement shall obligate Lender to apply all
or any portion of the Cash Management Account
to effect a cure of any Event of Default, or to pay the Debt, or in any
specific order of priority. The
exercise of any or all of Lender’s rights and remedies under this Agreement or under any of the other Loan Documents shall not in
any way prejudice or affect Lender’s right to initiate and complete a
foreclosure under the Mortgage.


ARTICLE 11

EVENTS OF DEFAULT; REMEDIES


          Section
11.1. Event of Default


          The occurrence of any one or more of the following
events shall constitute an “Event of Default”:


          (a) if
any portion of the Debt is not paid on or prior to the ninth day following the date the same is due or if the entire Debt is not
paid on or before the Maturity Date; provided, however, Borrower shall not be in default so long as there is sufficient
money in the Cash Management Account for payment of all amounts then due
and payable (including any deposits into
Reserve Accounts) and Lender’s access to such money has not been constrained or
constricted in any manner;


          (b) except
as otherwise expressly provided in the Loan Documents, if any of the Taxes
or Other Charges are not paid prior to the thirtieth day following the date
when the same are due and payable, unless there is sufficient money in the Tax
and Insurance Reserve Account for payment of amounts then due and payable and
Lender’s access to such money has not been constrained
or restricted in any manner;


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          (c) if the Policies are not kept in full
force and effect, or if the Insurance Certificates and certified copies of the Policies are not delivered to Lender as
provided in, and within the respective
time periods set forth in, Section 8.1;


          (d) if Borrower breaches any covenant with
respect to itself or any SPE Component Entity
(if any) contained in Article 6 or any covenant contained in Article 7 hereof;


          (e) if
any representation or warranty of, or with respect to, Borrower, Borrower Principal, any SPE Component Entity, or any
member, general partner, principal or beneficial owner of any of the
foregoing, made herein, in any other Loan Document, or in any certificate, report, financial statement or other instrument or
document furnished to Lender at the time of the closing of the Loan or during the term of the Loan shall have been false
or misleading in any material respect
when made and the same has a material adverse effect on the value of the Property or of the Loan;


          (f) if (i) Borrower or any SPE Component
Entity (if any) shall commence any case, proceeding
or other action (A) under any Creditors Rights Laws, seeking to have an order
for relief entered with respect to it, or seeking to adjudicate it a bankrupt
or insolvent, or seeking reorganization,
or (B) seeking appointment of a receiver, trustee, custodian, conservator or
other similar official for it or for
all or any substantial part of its assets, or Borrower or any SPE Component Entity (if any) shall make a general
assignment for the benefit of its creditors; or (ii) there shall be commenced against Borrower or any
SPE Component Entity (if any) any case, proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded
for a period of sixty (60) days; or (iii) there shall be commenced against Borrower or any SPE Component Entity (if
any) any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of any order for any
such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within sixty (60) days
from the entry thereof; or (iv) Borrower or any SPE Component Entity (if any)
shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause (i), (ii),
or (iii) above; or (v) Borrower or any SPE Component Entity (if any) shall
generally not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due;


          (g) if Borrower shall be in default beyond
applicable notice and grace periods under any other mortgage, deed of trust,
deed to secure debt or other security agreement covering any part of the Property, whether it be superior or
junior in lien to the Mortgage;


           (h) if the Property becomes subject to any
mechanic’s, materialman’s or other Lien other than a Lien for any Taxes
or Other Charges not then due and payable and the Lien shall remain undischarged of record (by payment, bonding
or otherwise) for a period of (i) to the extent the Sotheby’s Lease is in full
force and effect, one hundred twenty (120) days after Borrower’s receipt
of notice of the same, or (ii) to the extent the Sotheby’s Lease is not in full
force and effect, thirty (30) days after
Borrower’s receipt of notice of the same;


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          (i)
if any federal tax lien is filed against Borrower or any SPE Component Entity
(if any) or the Property and same is not discharged of record or bonded to
Lender’s reasonable satisfaction within thirty (30) days after same is filed;


          (j)
if a final, non-appealable judgment not covered by the Policies is filed
against the Borrower in excess of $500,000 which is not vacated, bonded or
discharged within 30 days;


          (k)
if any default occurs under any guaranty or indemnity executed in connection
herewith and such default continues after the expiration of applicable grace
periods, if any;


          (1)
Intentionally Omitted; or


          (m)
if Borrower shall continue to be in default under any other term, covenant or
condition of this Agreement or any of the Loan Documents for more than ten (10)
days after notice from Lender in the case of any default which can be cured by
the payment of a sum of money or for thirty (30) days after notice from Lender
in the case of any other default, provided that if such default cannot
reasonably be cured within such thirty (30) day period and Borrower shall have
commenced to cure such default within such thirty (30) day period and
thereafter diligently and expeditiously proceeds to cure the same, such thirty
(30) day period shall be extended for so long as it shall require Borrower in
the exercise of due diligence to cure such default, it being agreed that no
such extension shall be for a period in excess of one hundred twenty (120)
days.


          Section
11.2. Remedies


          (a)
Upon the occurrence and during the continuance of an Event of Default (other
than an Event of Default described in Section 11.1 (f) above), Lender may, 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, without notice or demand, that Lender deems advisable to protect and
enforce its rights against Borrower and in the Property, including, without
limitation, declaring the Debt to be immediately due and payable, and Lender
may enforce or avail itself of any or all rights or remedies provided in the
Loan Documents against Borrower and the Property, including, without
limitation, all rights or remedies available at law or in equity; and upon any
Event of Default described in Section 11.l(f) above, the Debt and all other
obligations of Borrower hereunder and under the other Loan Documents shall
immediately and automatically become due and payable, without notice or demand,
and Borrower hereby expressly waives any such notice or demand, anything
contained herein or in any other Loan Document to the contrary notwithstanding.


          (b)
Upon the occurrence and 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 under this Agreement or any of the other Loan Documents
executed and delivered by, or applicable to, Borrower 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 Debt 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
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pursued independently, singularly, 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.


ARTICLE 12

ENVIRONMENTAL PROVISIONS


          Section
12.1. Environmental Representations and Warranties


          Except
as set forth in the Environmental Report, Borrower represents and warrants,
based upon the Environmental Report, the Engineering Report, any other third
party, due diligence contracted for in connection herewith and information that
Borrower knows, that: (a) there are no Hazardous Materials or underground
storage tanks in, on, or under the Property, except those that are both (i) in
compliance with Environmental Laws and with permits issued pursuant thereto (if
such permits are required), if any, and (ii) either (A) in the case of
Hazardous Materials, in amounts not in excess of that necessary to operate the
Property for the purposes set forth herein or (B) fully disclosed to and
approved by Lender in writing pursuant to an Environmental Report; (b) there are
no past, present or threatened Releases of Hazardous Materials in violation of
any Environmental Law or which would require remediation by a Governmental
Authority in, on, under or from the Property except as described in the
Environmental Report; (c) there is no threat of any Release of Hazardous
Materials migrating to the Property except as described in the Environmental
Report; (d) there is no past or present non-compliance with Environmental Laws,
or with permits issued pursuant thereto, in connection with the Property except
as described in the Environmental Report; (e) Borrower does not know of, and
has not received, any written or oral notice or other communication from any
Person relating to Hazardous Materials in, on, under or from the Property; and
(f) Borrower has truthfully and fully provided to Lender, in writing, any and
all information relating to environmental conditions in, on, under or from the
Property known to Borrower or contained in Borrower’s files and records,
including but not limited to any reports relating to Hazardous Materials in,
on, under or migrating to or from the Property and/or to the environmental
condition of the Property.


          Section
12.2. Environmental Covenants


          Borrower
covenants and agrees that so long as Borrower owns, manages, is in possession
of, or otherwise controls the operation of the Property: (a) all uses and
operations on or of the Property, whether by Borrower or any other Person,
shall be in compliance with all Environmental Laws and permits issued pursuant
thereto; (b) there shall be no Releases of Hazardous Materials in, on, under or
from the Property; (c) there shall be no Hazardous Materials in, on, or under
the Property, except those that are both (i) in compliance with all
Environmental Laws and with permits issued pursuant thereto, if and to the
extent required, and (ii) (A) in amounts not in excess of that necessary to
operate the Property for the purposes set forth herein or (B) fully disclosed
to and approved by Lender in writing; (d) Borrower shall keep the Property free
and clear of all Environmental Liens; (e) Borrower shall, at its sole cost and
expense, fully and expeditiously cooperate in all activities pursuant to
Section 12.4 below, including but not limited to providing all relevant
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persons available for interviews; (f) Borrower shall,
at its sole cost and expense, perform any environmental site assessment or
other investigation of environmental conditions in connection with the
Property, pursuant to any reasonable written request of Lender, upon Lender’s
reasonable belief that the Property is not in full compliance with all
Environmental Laws, and share with Lender the reports and other results
thereof, and Lender and other Indemnified Parties shall be entitled to rely on
such reports and other results thereof; (g) Borrower shall, at its sole cost
and expense, comply with all reasonable written requests of Lender to (i)
reasonably effectuate remediation of any Hazardous Materials in, on, under or
from the Property; and (ii) comply with any Environmental Law; (h) Borrower
shall not allow any tenant or other user of the Property to violate any
Environmental Law; and (i) Borrower shall immediately notify Lender in writing
after it has become aware of (A) any presence or Release or threatened Release
of Hazardous Materials in, on, under, from or migrating towards the Property;
(B) any non-compliance with any Environmental Laws related in any way to the
Property; (C) any actual or potential Environmental Lien against the Property;
(D) any required or proposed remediation of environmental conditions relating
to the Property; and (E) any written or oral notice or other communication of
which Borrower becomes aware from any source whatsoever (including but not
limited to a Governmental Authority) relating in any way to Hazardous
Materials.


          Section
12.3. Lender’s Rights


          Upon
Lender’s reasonable belief that the Property is not in full compliance with all
Environmental Laws, Lender and any other Person designated by Lender, including
but not limited to any representative of a Governmental Authority, and any
environmental consultant, and any receiver appointed by any court of competent
jurisdiction, shall have the right, but not the obligation, to enter upon the
Property at all reasonable times (subject to the rights of Tenants under
Leases) to assess any and all aspects of the environmental condition of the
Property and its use, including but not limited to conducting any environmental
assessment or audit (the scope of which shall be determined in Lender’s sole
discretion) and taking samples of soil, groundwater or other water, air, or
building materials, and conducting other invasive testing. Borrower shall
cooperate with and provide access to Lender and any such person or entity
designated by Lender.


          Section
12.4. Operations and Maintenance Programs


          If
recommended by the Environmental Report or any other environmental assessment
or audit of the Property, Borrower shall establish and comply with (or cause to
be complied with) an operations and maintenance program with respect to the
Property, in form and substance reasonably acceptable to Lender, prepared by an
environmental consultant reasonably acceptable to Lender, which program shall
address any asbestos-containing material or lead based paint or mold (which
shall mean mold, fungi, bacterial or microbial matter) that may now or in the
future be detected at or on the Property. Without limiting the generality of
the preceding sentence, Lender may require (a) periodic notices or reports to
Lender in form, substance and at such intervals as Lender may specify, (b) an
amendment to such operations and maintenance program to address changing
circumstances, laws or other matters, (c) at Borrower’s sole expense,
supplemental examination of the Property by consultants specified by Lender,
(d) subject to the rights of Tenants under Leases, access to the Property by
Lender, its agents or servicer, to review and assess the environmental
condition of the Property and Borrower’s compliance with any


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operations and maintenance program, and (e) variation
of the operations and maintenance program in response to the reports provided
by any such consultants.


          Section
12.5. Environmental Definitions


          “Environmental
Law” means any present and future federal, state and local
laws, statutes, ordinances, rules, regulations, standards, policies and other
government directives or requirements, as well as common law, including but not
limited to the Comprehensive Environmental Response, Compensation and Liability
Act and the Resource Conservation and Recovery Act, that apply to Borrower or
the Property and relate to Hazardous Materials or protection of human health or
the environment. “Environmental Liens” means
all Liens and other encumbrances imposed pursuant to any Environmental Law,
whether due to any act or omission of Borrower or any other Person. “Hazardous Materials” shall mean petroleum
and petroleum products and compounds containing them, including gasoline,
diesel fuel and oil; explosives, flammable materials; radioactive materials;
polychlorinated biphenyls and compounds containing them; lead and lead-based
paint; asbestos or asbestos-containing materials in any form that is or could
become friable; mold (which shall mean mold, fungi, bacterial or microbial
matter); underground or above-ground storage tanks, whether empty or containing
any substance; any substance the presence of which on the Property is
prohibited by any federal, state or local authority; any substance that
requires special handling; and any other material or substance now or in the
future defined as a “hazardous substance,” “hazardous material”, “hazardous
waste”, “toxic substance”, “toxic pollutant”, “contaminant”, or “pollutant”
within the meaning of any Environmental Law; provided, that, the term “Hazardous
Materials” shall not include or apply to (A) substances reasonably necessary
for the regular and ordinary maintenance of the Property or consumed in the
regular and ordinary use of the Property or (B) gas or other fuels used in
connection with electrical generating equipment for the Property, but in each
case under (A) and/or (B) above, only if the use and/or possession of the same
does not constitute, give rise to, nor create any material risk of any
violation of any Environmental Laws; “Release”
of any Hazardous Materials includes but is not limited to any
release, deposit, discharge, emission, leaking, spilling, seeping, migrating,
injecting, pumping, pouring, emptying, escaping, dumping, disposing or other
movement of Hazardous Materials.


          Section
12.6. Indemnification


          (a)
Borrower and Borrower Principal covenant and agree at their sole cost and
expense, to protect, defend, indemnify, release and hold Indemnified Parties
harmless from and against any and all Losses imposed upon or incurred by or
asserted against any Indemnified Parties and directly or indirectly arising out
of or in any way relating to any one or more of the following: (i) any presence
of any Hazardous Materials in, on, above, or under the Property; (ii) any past,
present or threatened Release of Hazardous Materials in, on, above, under or
from the Property; (iii) any activity by Borrower, any Person affiliated with
Borrower, and any Tenant or other user of the Property in connection with any
actual, proposed or threatened use, treatment, storage, holding, existence,
disposition or other Release, generation, production, manufacturing, processing,
refining, control, management, abatement, removal, handling, transfer or
transportation to or from the Property of any Hazardous Materials at any time
located in, under, on or above the Property or any actual or proposed
remediation of any Hazardous Materials at any time located in, under, on or
above the Property, whether or not such remediation is


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voluntary or pursuant to court or administrative
order, including but not limited to any removal, remedial or corrective action;
(iv) any past, present or threatened non-compliance or violations of any
Environmental Laws (or permits issued pursuant to any Environmental Law) in
connection with the Property or operations thereon, including but not limited
to any failure by Borrower, any person or entity affiliated with Borrower, and
any tenant or other user of the Property to comply with any order of any
Governmental Authority in connection with any Environmental Laws; (v) the
imposition, recording or filing or the threatened imposition, recording or
filing of any Environmental Lien encumbering the Property; (vi) any acts of
Borrower, any person or entity affiliated with Borrower, and any tenant or
other user of the Property in (A) arranging for disposal or treatment, or
arranging with a transporter for transport for disposal or treatment, of
Hazardous Materials at any facility or incineration vessel containing such or
similar Hazardous Materials or (B) accepting any Hazardous Materials for
transport to disposal or treatment facilities, incineration vessels or sites
from which there is a Release, or a threatened Release of any Hazardous
Substance which causes the incurrence of costs for remediation; and (vii) any
misrepresentation or inaccuracy in any representation or warranty or material
breach or failure to perform any covenants or other obligations pursuant to
this Agreement relating to environmental matters.


          (b)
Upon written request by any Indemnified Party, Borrower and Borrower Principal
shall defend same (if requested by any Indemnified Party, in the name of the
Indemnified Party) by attorneys and other professionals selected by Borrower and
Borrower Principal and reasonably approved by the Indemnified Parties (the “Approved
Parties”). After the Approved Parties have assumed the defense of any
Indemnified Party, Borrower and Borrower Principal shall not be responsible for
any legal or other expenses subsequently incurred by such Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, if the defendants in any such action include
both the Indemnified Party and Borrower and/or Borrower Principal and the
Indemnified Party shall have reasonably concluded that there are any legal
defenses available to it and/or other Indemnified Parties that are different
from or additional to those available to Borrower and/or Borrower Principal,
the Indemnified Party 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. Borrower and Borrower Principal shall not
be liable for the expenses of more than one such separate counsel unless an
Indemnified Party shall have reasonably concluded that there may be legal
defenses available to it that are different from or additional to those
available to another Indemnified Party. 


          (c)
Notwithstanding the foregoing, Borrower shall have no liability for any Losses
imposed upon or incurred by or asserted against any Indemnified Parties and
described in subsection (a) above to the extent that Borrower can conclusively
prove both that such Losses were caused solely by actions, conditions or events
that occurred after the date that Lender (or any purchaser at a foreclosure
sale) actually acquired title to the Property and that such Losses were not
caused by the direct or indirect actions of Borrower, Borrower Principal, or
any partner, member, principal, officer, director, trustee or manager of
Borrower or Borrower Principal or any employee, agent, contractor or Affiliate
of Borrower or Borrower Principal. The obligations and liabilities of Borrower
and Borrower Principal under this Section 12.6 shall fully survive indefinitely
notwithstanding any termination, satisfaction, assignment, entry of a judgment
of


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foreclosure, exercise of any power of sale, or
delivery of a deed in lieu of foreclosure of the Mortgage.


ARTICLE 13

SECONDARY MARKET


          Section
13.1. Transfer of Loan


          Lender
may, at any time, sell, transfer or assign the Loan Documents, or grant
participations therein (“Participations”) or
syndicate the Loan (“Syndication”) or
issue mortgage pass-through certificates or other securities evidencing a
beneficial interest in a rated or unrated public offering or private placement
(“Securities”) (a Syndication or the issuance of Participations and/or
Securities, a “Securitization”).


          Section
13.2. Delegation of Servicing


          At
the option of Lender, the Loan may be serviced by a servicer/trustee selected
by Lender and Lender may delegate all or any portion of its responsibilities
under this Agreement and the other Loan Documents to such servicer/trustee
pursuant to a servicing agreement between Lender and such servicer/trustee.


          Section
13.3. Dissemination of Information


          Lender
may forward to each purchaser, transferee, assignee, or servicer of, and each
participant, or investor in, the Loan, or any Participations and/or Securities
or any of their respective successors (collectively, the “Investor”) or any Rating Agency rating the
Loan, or any Participations and/or Securities, each prospective Investor, and
any organization maintaining databases on the underwriting and performance of
commercial mortgage loans, all documents and information which Lender now has or
may hereafter acquire relating to the Debt and to Borrower, any managing member
or general partner thereof, Borrower Principal, any SPE Component Entity (if
any) and the Property, including financial statements, whether furnished by
Borrower or otherwise, as Lender determines necessary or desirable; provided,
that, notwithstanding anything to the contrary contained herein, in connection
with any written disclosure set forth in any Disclosure Document regarding any
financial information provided to Lender relating to Borrower Principal, Lender
shall only include the Net Worth Statement in any such Disclosure Document.
Borrower irrevocably waives any and all rights it may have under applicable
Legal Requirements to prohibit such disclosure, including but not limited to
any right of privacy.


          Section
13.4. Cooperation


          At
the request of the holder of the Note and, to the extent not already required
to be provided by Borrower under this Agreement, Borrower and Borrower
Principal shall use reasonable efforts to provide information not in the
possession of the holder of the Note in order to satisfy the market standards
to which the holder of the Note customarily adheres or which may be reasonably
required in the marketplace or by the Rating Agencies in connection with such
sales or transfers, including, without limitation, to:


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          (a)
provide updated financial, budget and other information with respect to
the Property, Borrower, Borrower Principal and Manager and provide
modifications and/or updates to the
appraisals, market studies, environmental reviews and reports (Phase I reports
and, if appropriate, Phase II
reports) and engineering reports of the Property obtained in connection with the making of the Loan (all of the foregoing being
referred to as the “Provided Information”), together,
if customary, with appropriate verification and/or consents of the Provided
Information through letters of auditors or
opinions of counsel of independent attorneys acceptable to Lender and the Rating Agencies;


          (b)
make changes to those portions of the
organizational documents of Borrower or any SPE Component Entity relating to the criteria for single purpose,
bankruptcy remote entities promulgated by the Rating Agencies;


          (c)
cause counsel to render or update
existing opinion letters as to enforceability and non-consolidation, and a 10b-5 comfort letter,
which may be relied upon by the holder of the Note, the Rating Agencies and their respective counsel, which shall be
dated as of the closing date of the
Securitization;


          (d)
permit site inspections in
accordance with the terms of this Agreement, appraisals, market studies and other due diligence
investigations of the Property, as may be reasonably requested by the holder of the Note or the Rating
Agencies or as may be necessary or appropriate in connection with the
Securitization;


          (e)
make the representations and warranties with respect to the Property,
Borrower, Borrower Principal and the Loan
Documents as are made in the Loan Documents and such other representations and
warranties as may be reasonably requested by the holder of the Note or the Rating
Agencies; provided, that Borrower and Borrower Principal shall not be required
to make any representations or warranties
relating to (I) description of risks (including legal and tax risks) set forth in the Disclosure Document or numbers or
figures which have been adjusted by any member of the Issuer Group or the Underwriter Group and included in the
Disclosure Document, (II) matters
with respect to which Borrower and/or Borrower Principal have informed Lender
in writing that the same are
incorrect, materially misleading or omit pertinent information, or (III) matters that the Issuer Group and/or the
Underwriter Group have determined are not material or matters for which
Borrower and/or Borrower Principal has not provided (or caused to be provided) the relevant facts;


          (f)
execute such amendments to the Loan
Documents as may be reasonably requested by the holder of the Note or
the Rating Agencies or otherwise to effect the Securitization including, without
limitation, bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate
note structure; provided, however, that Borrower shall not be required to modify or amend any Loan Document if
such modification or amendment would
(i) change the interest rate, the stated maturity or the amortization of
principal set forth in the Note,
except in connection with a bifurcation of the Loan which may result in varying fixed interest rates and amortization
schedules, but which shall have the same initial weighted average coupon of the original Note, or (ii) in the reasonable
judgment of Borrower, modify or amend
any other economic or material business term of the Loan, or (iii) in the reasonable judgment of Borrower, materially
increase Borrower’s obligations and liabilities


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under the Loan Documents or materially decrease the
rights of Borrower under the Loan Documents;


          (g)
deliver to Lender and/or any Rating Agency, (i) one or more certificates
executed by an officer of the Borrower certifying as to the accuracy, as of the
closing date of the Securitization,
of all representations made by Borrower in the Loan Documents as of the Closing
Date in all relevant jurisdictions or, if such representations are no
longer accurate, certifying as to what
modifications to the representations would be required to make such
representations accurate as of the
closing date of the Securitization, and (ii) certificates of the relevant Governmental Authorities in all relevant
jurisdictions indicating the good standing and qualification of Borrower
as of the date of the closing date of the Securitization;


          (h)
have reasonably appropriate personnel participate in a bank meeting and/or presentation for the Rating Agencies or Investors;
and


          (i)
cooperate with and assist Lender in obtaining ratings of the Securities from
two (2) or more of the Rating
Agencies.


          All
reasonable third party costs and expenses incurred by Borrower in connection
with Borrower’s complying with requests made under the foregoing provisions of
this Section 13.4 and Section
13.5(a) shall be paid by Borrower; provided, that, to the extent that any such
costs exceed $10,000, Lender shall,
upon Borrower’s request, pay such excess amount.


          In
the event that Borrower requests any consent or approval hereunder and the
provisions of this Agreement or any Loan Documents require the receipt
of written confirmation from each Rating
Agency with respect to the rating on the Securities, or, in accordance with the
terms of the transaction documents relating to a Securitization, such a
rating confirmation is required in order
for the consent of Lender to be given, Borrower shall pay all of the costs and
expenses of Lender, Lender’s servicer
and each Rating Agency in connection therewith, and, if applicable, shall pay any fees imposed by any Rating Agency as
a condition to the delivery of such confirmation.


          Section
13.5. Securitization Indemnification


          (a)
Borrower and Borrower Principal
understand that certain of the Provided Information may be included in disclosure documents in connection with
the Securitization, including,
without limitation, a prospectus, prospectus supplement, offering memorandum or
private placement memorandum (each, a
“Disclosure Document”) and may
also be included in filings with the
Securities and Exchange Commission pursuant to the Securities Act or 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, Borrower and Borrower Principal
will cooperate with the holder of the Note in updating the Disclosure Document by providing all current
information necessary to keep the Disclosure Document accurate and complete in all material respects.


          (b)
Promptly upon Lender’s request, Borrower and Borrower Principal agree to
provide in connection with each of (i) a
preliminary and a final offering memorandum or private


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placement memorandum or similar
document (including any Investor or Rating Agency “term sheets” or
presentations relating to the Property and/or the Loan) or (ii) a preliminary
and final prospectus or prospectus supplement, as applicable, an
indemnification certificate (A) certifying that
Borrower and Borrower Principal have carefully examined such portions of such memorandum
or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the
Property
and/or the Loan), as applicable, as may be specifically requested by Lender relating to Borrower, Borrower
Principal, Manager, their Affiliates,
the Loan, the Loan Documents and the Property (such portions, collectively, the
“Mortgagor Portions”) and that, to the best
of Borrower’s knowledge, such Mortgagor Portions do not 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 (or, if such
Mortgagor Portions do contain such an untrue statement or do omit to state such a material fact, certifying as
to what modifications to the Mortgagor Portions would be required to make such Mortgagor Portions accurate), (B)
indemnifying Lender (and for purposes of this Section 13.5, Lender hereunder
shall include its officers and directors) and the Affiliate of Lender
that (i) has filed the registration statement, if any, relating to the
Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or
a similar capacity with respect to the Securitization (any Person described in
(i) or (ii), an “Issuer Person”), and
each director and officer of any Issuer
Person, and each Person or entity who controls any Issuer Person within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (collectively, the “Issuer Group”), and
each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar
capacity with respect to the Securitization, each of its directors and
officers and each Person who controls any such Person within the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act (collectively, the “Underwriter Group”) for any Losses to which Lender, the Issuer Group or the
Underwriter Group may become subject insofar as the Losses
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in such Mortgagor Portions which have been examined and approved by Borrower
in writing or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated in such Mortgagor Portions or necessary in order to
make the statements in such Mortgagor Portions
or in light of the circumstances under which they were made, not misleading (collectively the “Securities
Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or
other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the
Securities Liabilities; provided,
however, that Borrower and Borrower Principal will be liable in any such case
under clauses (B) or (C) above only to the extent that any such
Securities Liabilities arise out of or is based
upon any such untrue statement or omission made therein in reliance upon and in
conformity with information furnished
to Lender or any member of the Issuer Group or Underwriter Group by or on behalf of Borrower or Borrower Principal in connection
with such Mortgagor Portions which have been examined and approved by Borrower
in writing. This indemnity agreement
will be in addition to any liability which Borrower and Borrower Principal may otherwise have. To the extent the
indemnification certificate described in clauses (A), (B) and (C) above is not provided, the indemnification
provided for in clauses (B) and (C) above shall be effective, but shall be based upon and limited to factual
information with respect to the Property,
Borrower, Borrower Principal and Manager previously provided by Borrower, Borrower Principal, Manager, any of their
respective Affiliates, or any accountants or employees


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of such parties (excluding, in
each such case, Sotheby’s) directly to Lender, Lender’s authorized agents,
the Issuer Group or the Underwriter Group; provided, that, in such case,
Borrower and Borrower Principal will only be liable under clauses (B) and (C)
above to the extent that (i) such factual
information is accurately set forth in the Mortgagor Portions, and (ii) the
Securities Liabilities arise out of or are based upon any untrue statement or
omission of a material fact made in
the Mortgagor Portions in reliance upon and in conformity with such factual information.


          (c)
In connection with filings under the Exchange Act or any information
provided to holders of Securities on an
ongoing basis, Borrower and Borrower Principal agree to (i) indemnify
Lender, the Issuer Group and the Underwriter Group for Losses to which Lender,
the Issuer Group or the Underwriter Group may become subject insofar as the
Securities Liabilities arise out of or are
based upon the omission or alleged omission to state in financial, budget and other factual information with respect to the
Property, Borrower, Borrower Principal and Manager provided by Borrower,
Borrower Principal, Manager, any of their respective Affiliates, or any accountants or employees of such parties
(excluding, in each such case, Sotheby’s) directly to Lender, Lender’s authorized agents, the Issuer Group or the
Underwriter Group (collectively, the “Mortgagor Information”) a material fact
required to be stated in such Mortgagor
Information in order to make the statements in such Mortgagor Information, in
light of the circumstances under
which they were made not misleading and (ii) reimburse Lender, the Issuer Group or the Underwriter Group for any
legal or other expenses reasonably incurred by Lender, the Issuer Group or the Underwriter Group in connection with
defending or investigating the Securities Liabilities; provided,
however, that Borrower and Borrower Principal will be liable in any such case under clauses (i) or (ii) above
only to the extent that (I) such Mortgagor Information is accurately set forth
in such filings under the Exchange Act or is accurately disclosed to the holders of Securities (as
applicable), and (II) any such Securities Liabilities arise out of or are based upon any such untrue
statement or omission of a material fact made therein in reliance upon and in conformity with the Mortgagor
Information;


          (d)
Promptly after receipt by an
indemnified party under this Section 13.5 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 13.5, 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 hereunder 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 notice from the
indemnifying party to such indemnified party under this Section 13.5, the
indemnifying party shall not be responsible for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, if the
defendants in any such action
include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably
concluded that there are any legal defenses available to it and/or other indemnified parties that are
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indemnifying party, the
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. The
indemnifying party shall not be liable for the expenses of more than one such separate counsel unless an indemnified
party shall have reasonably concluded
that there may be legal defenses available to it that are different from or
additional to those available to another indemnified party.


          (e)
In order to provide for just and
equitable contribution in circumstances in which the indemnity agreements
provided for in Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unenforceable by an indemnified
party in respect of any losses, claims, damages or liabilities (or
action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 13.5(c) or Section
13.5(d), the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of
such losses, claims, damages or
liabilities (or action in respect thereof); provided, however, that no Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled
to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of
contribution to which the respective parties are entitled, the following factors shall be considered: (i) the indemnified
party’s, Borrower’s and Borrower Principal’s relative knowledge and access to
information concerning the matter with respect
to which claim was asserted; (ii) the opportunity to correct and prevent any
statement or omission; and (iii) any
other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that
it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation.


          (f)
The liabilities and obligations of
Borrower, Borrower Principal and Lender under this Section 13.5 shall survive the satisfaction of this Agreement and
the satisfaction and discharge of
the Debt.


          Section
13.6. Private Rating


          For
so long as the Sotheby’s Lease is in full force and effect, to the extent that
any of the Rating Agencies rating (or that are anticipated to rate) the Securities
cease to publicly issue a long-term,
unsecured debt rating for Sotheby’s Guarantor, Borrower shall, at Borrower’s
sole cost and expense, retain such
Rating Agencies and cause such Rating Agencies to continue to monitor
Sotheby’s Guarantor and to continue to issue to Lender and Borrower a long
term, unsecured debt rating (or an
equivalent rating reasonably acceptable to Lender) for Sotheby’s Guarantor (the “Private
Rating”). If, for any period in excess of ninety (90) days, Borrower
is unable to obtain such a Private
Rating, Sotheby’s Guarantor’s long-term, unsecured debt rating (or its
equivalent Private Rating) shall be deemed to be below “B+” (or its equivalent)
by each of the Rating Agencies for all purposes under this Agreement
until such Private Rating is actually issued.


          Section
13.7. Servicer


          At
the option of Lender, the Loan may be serviced by a servicer/trustee selected
by Lender and Lender may delegate all
or any portion of its responsibilities under this Agreement


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and the
other Loan Documents to such servicer/trustee pursuant to a servicing agreement
between
Lender and such servicer/trustee.


ARTICLE 14

INDEMNIFICATIONS


          Section
14.1. General Indemnification


          Borrower
shall indemnify, defend and hold harmless the Indemnified Parties from and against any and all
Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or
indirectly arising out of or in any way relating to any one or more of the following: (a) any
accident, injury to or death of persons or loss of or damage to property occurring in, on or
about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or
adjacent parking areas, streets or ways; (b) any use, nonuse or condition in, on or about the Property
or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent
parking areas, streets or ways; (c) performance of any labor or services or the furnishing of any
materials or other property in respect of the Property or any part thereof; (d) any failure of the
Property to be in compliance with any Applicable Legal Requirements; (e) any and all claims and
demands whatsoever which may be asserted against Lender by reason of any alleged obligations
or undertakings on its part to perform or discharge any of the terms, covenants, or agreements
contained in any Lease; (f) the holding or investing of the Reserve Accounts or the
performance of the Required Work or Additional Replacements, or (g) the payment
of any commission, charge or brokerage fee to anyone which may be payable in connection with the
funding of the Loan (collectively, the “Indemnified
Liabilities”); provided, however, that Borrower shall not have any
obligation to Lender hereunder to the extent that such Indemnified Liabilities
arise from the gross negligence, illegal acts, fraud or willful misconduct of Lender. To the extent
that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence
may be unenforceable because it violates any law or public policy, Borrower
shall pay the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Lender.


          Section
14.2. Mortgage and Intangible Tax Indemnification


          Borrower
shall, at its sole cost and expense, protect, defend, indemnify, release and
hold harmless the Indemnified Parties from and against any and all Losses
imposed upon or incurred by or asserted against any Indemnified Parties and
directly or indirectly arising out of or in any way relating to any tax on the
making and/or recording of the Mortgage, the Note or any of the other Loan Documents,
but excluding any income, franchise or other similar taxes.


          Section
14.3. ERISA Indemnification


          Borrower
shall, at its sole cost and expense, protect, defend, indemnify, release and
hold harmless
the Indemnified Parties from and against any and all Losses (including, without
limitation,
reasonable attorneys’ fees and costs incurred in the investigation, defense,
and settlement of Losses
incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual
prohibited transaction exemption under ERISA


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that may be required, in Lender’s sole discretion)
that Lender may incur, directly or indirectly, as a result of a default under Section 4.8 or Section 5.18 of this
Agreement.


          Section
14.4. Survival


          The
obligations and liabilities of Borrower and Borrower Principal under this
Article 14 shall fully survive for a
period of two (2) years following any termination, satisfaction, assignment, entry of a judgment of foreclosure,
exercise of any power of sale, or delivery of a deed in lieu of foreclosure of the Mortgage.


ARTICLE 15

EXCULPATION


          Section
15.1. Exculpation


          (a)
Except as otherwise provided herein or in the other Loan Documents, Lender shall
not enforce the liability and obligation of Borrower or Borrower Principal, as
applicable, to perform and observe the obligations contained herein or in the
other Loan Documents by any action or proceeding wherein a money judgment shall
be sought against Borrower or Borrower Principal, except that Lender may bring
a foreclosure action, action for specific performance or other appropriate action or proceeding to enable
Lender to enforce and realize upon this Agreement, the Note, the Mortgage and the other Loan Documents, and the
interest in the Property, the Rents
and any other collateral given to Lender created by this Agreement, the Note, the Mortgage and the other Loan Documents;
provided, however, that any judgment in any such action or proceeding shall be
enforceable against Borrower or Borrower Principal, as applicable, only to the
extent of Borrower’s or Borrower Principal’s interest in the Property, in the
Rents and in any other collateral given
to Lender. Lender, by accepting this Agreement, the Note, the Mortgage and the other Loan Documents, agrees
that it shall not, except as otherwise provided in this Section 15.1, sue for, seek or demand any
deficiency judgment against Borrower or Borrower Principal in any such action or proceeding, under or by reason
of or under or in connection with
this Agreement, the Note, the Mortgage or the other Loan Documents. The provisions
of this Section 15.1 shall not, however, (i) constitute a waiver, release or
impairment of any obligation evidenced or secured by this Agreement, the Note,
the Mortgage or the other Loan Documents;
(ii) impair the right of Lender to name Borrower or Borrower Principal as a party
defendant in any action or suit for judicial foreclosure and sale under this
Agreement and the Mortgage; (iii) affect the
validity or enforceability of any indemnity (including, without limitation, those contained in Section 12.6,
Section 13.5 and Article 14 of this Agreement), guaranty, master lease or similar instrument made in connection with
this Agreement, the Note, the Mortgage
and the other Loan Documents; (iv) impair the right of Lender to obtain the appointment
of a receiver; (v) impair the enforcement of the assignment of leases
provisions contained in the Mortgage; or
(vi) impair the right of Lender to obtain a deficiency judgment or other
judgment on the Note against Borrower or Borrower Principal if necessary to
obtain any Insurance Proceeds or
Awards to which Lender would otherwise be entitled under this Agreement;
provided however, Lender shall only enforce such judgment to the extent of the Insurance Proceeds and/or Awards.


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          (b)
Notwithstanding the provisions of this Section 15.1 to the contrary,
Borrower and Borrower Principal shall be
personally liable to Lender on a joint and several basis for Losses due to:


	
 

	
 


	
 

	
          (i)
 fraud or intentional misrepresentation by Borrower, Borrower Principal or any other Affiliate of Borrower or Borrower
 Principal in connection with the execution and the delivery of this Agreement, the Note, the Mortgage, any of the
 other Loan Documents, or any
 certificate, report, financial statement or other instrument or document
 furnished to Lender at the time of the closing of the Loan or during the term
 of the Loan;


	
 

	
 


	
 

	
          (ii)
 Borrower’s misapplication or misappropriation of Rents received by Borrower after the occurrence of an Event of
 Default;


	
 

	
 


	
 

	
          (iii)
 Borrower’s misapplication or misappropriation of tenant security deposits or Rents collected in advance;


	
 

	
 


	
 

	
          (iv)
 the misapplication or the misappropriation of Insurance Proceeds or Awards;


	
 

	
 


	
 

	
          (v)
 Borrower’s failure to pay real estate taxes with respect to the Property; provided, that Borrower and Borrower Principal
 shall not be personally liable under this Section 15.1(b)(v) to the extent there is insufficient income from the
 Property to pay such real estate
 taxes or to the extent such real estate taxes accrue after the date (i) a
 receiver has been appointed for
 the Property, (ii) Lender obtains control of the cash flow from the Property
 to the exclusion of Borrower pursuant to Article 10 hereof or otherwise, or
 (iii) escrowing for real estate taxes has
 commenced and is continuing in accordance with the provisions of this
 Agreement;


	
 

	
 


	
 

	
          (vi)
 any act of intentional waste or arson by Borrower, any principal, Affiliate, member or general partner thereof or by Borrower
 Principal, any principal, Affiliate, member
 or general partner thereof;


	
 

	
 


	
 

	
          (vii)
 Borrower’s failure following any Event of Default to deliver to Lender upon demand all Rents and books and records
 relating to the Property; or


	
 

	
 


	
 

	
          (viii)
 Borrower’s willful misconduct.





          (c)
Notwithstanding the foregoing, the
agreement of Lender not to pursue recourse liability as set forth in
subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall
be fully recourse to Borrower and Borrower Principal jointly and severally in the event of (i) a default by
Borrower, Borrower Principal or any
SPE Component Entity (if any) of any of the covenants set forth in Article 6 or
Article 7 hereof, or (ii) if the
Property or any part thereof shall become an asset in a Voluntary Bankruptcy Proceeding; provided, however, that (I) a breach
by Borrower or any SPE Component Entity of the covenants set forth in Article 6
hereof shall not result in recourse liability hereunder unless such breach was
material and, within fifteen (15) days of notice from Lender, Borrower fails to
cure such breach and fails to deliver
to Lender a new or revised substantive non-consolidation opinion, in form and substance and from counsel
reasonably satisfactory to Lender in accordance


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with the Rating Agency standards
for the same, to the effect that such failure does not negate/impair the opinion previously delivered to
Lender; or (II) a breach of the covenants set forth in Article 7 hereof
(other than by virtue of a Specified Article 7 Breach) shall not result in recourse liability hereunder unless such breach
was material and, within fifteen (15) days of notice from Lender, Borrower fails to cure such breach and fails to
deliver to Lender confirmation from
each Rating Agency that such breach and its cure will not result in a downgrade, withdrawal or qualification of the
initial, or if higher, then current ratings issued in connection with a Securitization, or if a
Securitization has not occurred, any ratings to be assigned in connection with a Securitization.


          (d)
Nothing herein shall be deemed to be a waiver of any right which Lender may have
under Section 506(a), 506(b), 111l(b) or any other provision of the U.S.
Bankruptcy Code to file a claim for the full amount of the indebtedness secured
by the Mortgage or to require that all
collateral shall continue to secure all of the indebtedness owing to Lender in
accordance with this Agreement, the Note, the Mortgage or the other Loan
Documents.


ARTICLE 16

NOTICES


          Section
16.1. 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, (b) expedited
prepaid overnight delivery service, either commercial or United States Postal Service, with proof of attempted delivery,
or by (c) telecopier (with answer back acknowledged
provided an additional notice is given pursuant to subsection (b) above), addressed as follows (or at such other address and
Person as shall be designated from time to time by any party hereto on ten (10) days prior written notice to the
other parties 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:

	
 

	
Bank of America, N.A.

 Capital Markets Servicing Group 

 900 West Trade Street, Suite 650

 NCI -026-06-01

 Charlotte, North Carolina 28255

 Attn: Servicing Manager

 Telephone No: (866) 531-0957

 Facsimile No.: (704) 317-4501
 


	
 

	
 

	
 

	
 


	
 

	
If to Borrower:

	
 

	
1334 York Avenue L.P.

 c/o RFR Holding LLC

 390 Park Avenue

 New York, New York 10022

 Attention: Aby Rosen

 Facsimile No.: 212-308-5090
 





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With a copy to:

	
 

	
Fried, Frank, Harris, Shriver
 & Jacobson 


	
 

	
 

	
 

	
One New York Plaza 


	
 

	
 

	
 

	
New York, New York 10004-1980
 


	
 

	
 

	
 

	
Attention: Robert J. Sorin, Esq. 


	
 

	
 

	
 

	
Facsimile No.: (212) 859-4000
 


	
 

	
 

	
 

	
 


	
 

	
If to Borrower

	
 

	
 


	
 

	
Principal:

	
 

	
Aby Rosen 


	
 

	
 

	
 

	
Michael Fuchs 


	
 

	
 

	
 

	
c/o RFR Holding LLC 


	
 

	
 

	
 

	
390 Park Avenue 


	
 

	
 

	
 

	
New York, New York 10022
 


	
 

	
 

	
 

	
Attention: Aby Rosen 


	
 

	
 

	
 

	
Facsimile No.: 212-308-5090
 


	
 

	
 

	
 

	
 


	
 

	
With a copy to:

	
 

	
Fried, Frank, Harris, Shriver
 & Jacobson 


	
 

	
 

	
 

	
One New York Plaza 


	
 

	
 

	
 

	
New York, New York 10004-1980
 


	
 

	
 

	
 

	
Attention: Robert J. Sorin, Esq. 


	
 

	
 

	
 

	
Facsimile No.: (212) 859-4000
 





A notice shall be deemed to have
been given: in the case of hand delivery, at the time of delivery; in the case of registered or certified
mail, when delivered or the first attempted delivery on a Business Day; or in the case of expedited
prepaid delivery and telecopy, upon the first attempted delivery on a Business Day.


ARTICLE 17

FURTHER ASSURANCES


          Section
17.1. Replacement Documents


          Upon
receipt of an affidavit of an officer of Lender as to the loss, theft,
destruction or mutilation of the Note
or any other Loan Document which is not of public record: (i) with respect to any Loan Document other than the Note,
Borrower will issue, in lieu thereof, a replacement of such other Loan Document,
dated the date of such lost, stolen, destroyed or mutilated Loan
Document in the same principal amount thereof and otherwise of like tenor and
(ii) with respect to the Note, (a) Borrower will execute a reaffirmation of the
Debt as evidenced by such Note
acknowledging that Lender has informed Borrower that the Note was lost, stolen destroyed or mutilated and that such Debt continues
to be an obligation and liability of the Borrower as set forth in the Note, a copy of which shall be attached to
such reaffirmation and (b) if
requested by Lender, Borrower will execute a replacement note and Lender or
Lender’s custodian (at Lender’s option) shall provide to Borrower
Lender’s (or Lender’s custodian’s) then standard
form of lost note affidavit and indemnity, which such form shall be reasonably acceptable to Borrower.


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          Section
17.2. Recording of Mortgage, Etc.


          Borrower
forthwith upon the execution and delivery of the Mortgage and thereafter, from time
to time, will cause the Mortgage and any of the other Loan Documents creating a
lien or security interest or evidencing the lien hereof upon the Property and
each instrument of further assurance to be
filed, registered or recorded in such manner and in such places as may be required by any present or future law in order to
publish notice of and fully to protect and perfect the lien or security interest hereof upon, and the
interest of Lender in, the Property. Borrower will pay all taxes, filing, registration or recording fees, and all
expenses incident to the preparation, execution, acknowledgment and/or
recording of the Note, the Mortgage, the other Loan Documents, any note, deed of trust or mortgage supplemental hereto,
any security instrument with respect
to the Property and any instrument of further assurance, and any modification
or amendment of the foregoing documents, and all federal, state, county and municipal taxes, duties, imposts, assessments and
charges arising out of or in connection with the execution and delivery
of the Mortgage, any deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property
or any instrument of further assurance, and any modification or amendment of the foregoing documents, except where
prohibited by law so to do.


          Section
17.3. Further Acts, Etc.


          Borrower
will, at the cost of Borrower, and without expense to Lender, do, execute, acknowledge and deliver all and every further
acts, deeds, conveyances, deeds of trust, mortgages, assignments, security agreements, control agreements, notices
of assignments, transfers and assurances as Lender shall, from time to
time, reasonably require, for the better assuring,
conveying, assigning, transferring, and confirming unto Lender the property and
rights hereby mortgaged, deeded, granted, bargained, sold, conveyed, confirmed,
pledged, assigned, warranted and
transferred or intended now or hereafter so to be, or which Borrower may be or may hereafter become bound to convey or assign to
Lender, or for carrying out the intention or facilitating the performance of
the terms of this Agreement or for filing, registering or recording the Mortgage, or for complying with all Legal
Requirements. Borrower, on demand, will execute and deliver, and in the event it shall fail to so execute and
deliver, hereby authorizes Lender to execute in the name of Borrower or
without the signature of Borrower to the extent Lender may lawfully do so, one or more financing statements and
financing statement amendments to
evidence more effectively, perfect and maintain the priority of the security interest of Lender in the Property. Upon the
occurrence and during the continuance of an Event of Default, Borrower
grants to Lender an irrevocable power of attorney coupled with an interest for the purpose of exercising and perfecting any
and all rights and remedies available to Lender at law and in equity, including without limitation, such rights and
remedies available to Lender pursuant to this Section 17.3.


          Section
17.4. Changes in Tax, Debt, Credit and Documentary Stamp Laws


          (a)
If any law is enacted or adopted or amended after the date of this Agreement which deducts the Debt from the value of the
Property for the purpose of taxation or which imposes a tax, either directly or
indirectly, on the Debt or Lender’s interest in the Property, Borrower will pay the tax, with interest and
penalties thereon, if any. If Lender is advised by counsel chosen by it that the payment of tax by
Borrower would be unlawful or taxable to Lender or unenforceable or provide the basis for a defense of usury then
Lender shall have the


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option by written notice of not
less than one hundred twenty (120) days to declare the Debt immediately due and payable.


          (b)
Borrower will not claim or demand or be entitled to any credit or credits on account
of the Debt for any part of the Taxes or Other Charges assessed against the
Property, or any part thereof, and no
deduction shall otherwise be made or claimed from the assessed value of the Property, or any part thereof, for real estate
tax purposes by reason of the Mortgage or the Debt. If such claim, credit or deduction shall be required by law, Lender
shall have the option, by written
notice of not less than one hundred twenty (120) days, to declare the Debt immediately due and payable.


          If
at any time the United States of America, any State thereof or any subdivision
of any such State shall require revenue or
other stamps to be affixed to the Note, the Mortgage, or any of the
other Loan Documents or impose any other tax or charge on the same, Borrower
will pay for the same, with interest and
penalties thereon, if any.


          Section
17.5. Expenses


          Borrower
covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender
upon receipt of written notice from Lender for all reasonable, out of pocket
costs and expenses (including
reasonable, actual attorneys’ fees and disbursements) reasonably incurred by
Lender in accordance with this
Agreement in connection with (a) 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 as to
any legal matters arising under this Agreement or the other Loan Documents with
respect to the Property); (b) Borrower’s ongoing performance of and compliance
with Borrower’s respective agreements and
covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing
Date, including, without limitation, confirming compliance with
environmental and insurance requirements; (c) following a request by Borrower, Lender’s ongoing performance and
compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to
be performed or complied with after
the Closing Date; (d) 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 requested by
Lender; (e) securing Borrower’s compliance
with any requests made pursuant to the provisions of this Agreement; (f) the filing and recording fees and
expenses, 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; (g)
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,
this Agreement, the other Loan Documents, the Property, or any other
security given for the Loan; and (h) enforcing any obligations of or collecting any payments due from Borrower 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;
provided, however, that Borrower shall not be liable for the payment


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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. Notwithstanding the foregoing, in no
event shall Borrower be obligated to
pay or reimburse Lender for the allocated costs of Lender’s internal services.


ARTICLE 18

WAIVERS


          Section
18.1. Remedies Cumulative; Waivers


          The
rights, powers and remedies of Lender under this Agreement shall be cumulative
and not exclusive of any other right, power or remedy which Lender may
have against Borrower or Borrower Principal
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
singularly, 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 shall not be construed to be a waiver of
any subsequent Default or Event of Default by Borrower or to impair any remedy,
right or power consequent thereon.


          Section
18.2. Modification, Waiver in Writing


          No
modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, or of the Note, or
of any other Loan Document, nor consent to any departure by Borrower
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 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.


          Section
18.3. Delay Not a Waiver


          Neither
any failure nor any delay on the part of Lender or Borrower in insisting upon strict performance of any term, condition,
covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note 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 Note 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 Note 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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          Section
18.4. Trial by Jury


          BORROWER,
BORROWER PRINCIPAL AND LENDER EACH HEREBY AGREES
NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY,
AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT
THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN
DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN
CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN
KNOWINGLY AND VOLUNTARILY BY BORROWER, BORROWER PRINCIPAL AND LENDER, AND IS
INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE
RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER, BORROWER
PRINCIPAL AND BORROWER IS HEREBY AUTHORIZED TO FILE
A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE
OF THIS WAIVER BY BORROWER, BORROWER PRINCIPAL AND LENDER.


          Section
18.5. Waiver of Notice


          Borrower
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.


          Section
18.6. Remedies of Borrower 


          (a)
In the event that a claim is made
that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by
law or under this Agreement or the other Loan Documents, Lender or such agent, as the case may be, has an
obligation to act reasonably or promptly, Borrower agrees that neither
Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an
action seeking injunctive reliefer declaratory judgment. The parties
hereto agree that Borrower or Lender may, upon
twenty (20) Business Days prior written notice to the other party, submit such
action to arbitration under the then prevailing rules of the American
Arbitration Association (the “AAA”) in
accordance with the provisions of this Section 18.6. The references to “Rules”
contained in this Section 18.6 shall
be deemed to refer to Commercial Arbitration Rules of the AAA. 


          (b)
Borrower or Lender may submit such
action to arbitration in the City of New York before a single arbitrator under the “Expedited Procedures”
provisions of the Commercial Arbitration Rules of the AAA (presently
Rules E-l through E-10); provided, however, that, with respect to any such
arbitration, (i) for such arbitration to be binding on the parties hereto, the
list of arbitrators referred to in Rule E-5
shall consist of arbitrators who have the qualifications set forth in
Section 18.6(c) below, (ii) such list shall be returned within seven (7) days
of the date of mailing; (iii) the parties
shall notify the AAA by facsimile within seven (7) days of any objections to the arbitrator appointed and shall
have no right to object if the arbitrator so


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appointed was on the list
submitted by the AAA and was not objected to in accordance with Rule E-5.b; (iv) the “Notice of Hearing” referred to in
Rule E-8 shall be given seven (7) days in advance of the hearing; (v) the hearing shall be held within thirty
(30) days after confirmation of the
appointment of the arbitrator; and (vi) the decision of the arbitrator shall be
final and conclusive on the parties.


          (c)
The arbitrator conducting any arbitration shall be bound by the provisions of
this Agreement and shall not have the power
to add to, subtract from, or otherwise modify such provisions (except that the provisions of Rule R-40
shall apply to this Section 18.6). The arbitrator
shall consider only the specific issues submitted to him or her for resolution.
Lender and Borrower agree to sign all
documents and to do all other things necessary to submit any such matter to
arbitration and further agree to, and hereby do, subject to the other terms and
conditions of this Section 18.6, waive
any and all rights they or either of them may at any time have to revoke their agreement hereunder to submit to
arbitration and to abide by the decision rendered thereunder which shall be
binding and conclusive on the parties. Judgement may be had on the decision of the arbitrator so rendered in any
court of competent jurisdiction. Each proposed arbitrator hereunder shall be a qualified, disinterested and impartial
person unaffiliated with either
Borrower or Lender who shall have had at least ten (10) years experience, at an
executive level, in matters relating to the management, operation and
financing of Class A commercial buildings in
Manhattan. Lender and Borrower shall each have the right to appear and be represented by counsel before said arbitrator and
to submit such testimony, data and memoranda in support of their respective
positions in the matter in dispute as may be reasonably necessary or appropriate
in the circumstances. In the case of any dispute submitted to arbitration under
this Section 18.6 by (I) Borrower, Borrower shall pay its own, as well as
Lender’s, costs, fees and expenses in
connection therewith and the expenses and fees of the arbitrator selected and
the AAA, or (II) Lender, each party
shall pay its own costs, fees and expenses in connection therewith and the expenses and fees of the
arbitrator selected and the AAA shall be shared equally by Borrower and Lender.


          Section
18.7. Waiver of Marshalling of Assets


          To
the fullest extent permitted by law, Borrower, for itself and its successors
and assigns, waives all rights to a marshalling of the assets of
Borrower, Borrower’s partners and others with interests in Borrower, 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 Debt without
any prior or different resort for collection or of the right of Lender to
the payment of the Debt out of the net proceeds of the Property in preference
to every other claimant whatsoever.


          Section
18.8. Intentionally Omitted 


          Section
18.9. Waiver of Counterclaim


          Borrower
hereby waives the right to assert a counterclaim, other than a compulsory counterclaim,
in any action or proceeding brought against it by Lender or its agents.


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ARTICLE 19 

GOVERNING LAW


          Section 19.1. Choice of Law


          This
Agreement shall be deemed to be a contract entered into pursuant to the laws of
the State of New York and shall in
all respects be governed, construed, applied and enforced in accordance with the laws of the State of New York,
provided however, (a) that with respect to the creation, perfection, priority and enforcement of any Lien created
by the Loan Documents, and the
determination of deficiency judgments, the laws of the state where the Property
is located shall apply, and (b) with
respect to the security interest in each of the Reserve Accounts and the Cash Management Account, the laws of the state
where each such account is located shall apply.


          Section 19.2. 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.


          Section
19.3. Preferences


          Lender
shall have the continuing and exclusive right to apply or reverse and reapply
any and all payments by Borrower to
any portion of the obligations of Borrower hereunder. To the extent Borrower 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 Creditors Rights
Laws, 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.


ARTICLE 20

MISCELLANEOUS


          Section 20.1. Survival


          This
Agreement and all covenants, 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 Note, and shall
continue in full force and effect so
long as all or any of the Debt 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 legal representatives,
successors and assigns of such party. All covenants, promises and agreements in
this Agreement, by or on behalf of
Borrower, shall inure to the benefit of the legal representatives,
successors and assigns of Lender.


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          Section 20.2. 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.


          Section 20.3. 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.


          Section 20.4. Cost of Enforcement


          In
the event (a) that the Mortgage is foreclosed in whole or in part, (b) of the
bankruptcy, insolvency, rehabilitation
or other similar proceeding in respect of Borrower or any of its constituent Persons or an assignment by Borrower or
any of its constituent Persons for the benefit
of its creditors, or (c) Lender successfully exercises any of its other
remedies under this Agreement or any
of the other Loan Documents, Borrower shall be chargeable with and agrees to
pay all costs of collection and defense, including 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.


          Section 20.5. Schedules
Incorporated


          The
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.


          Section 20.6. 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 nor 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 nothing contained in this Agreement or the other Loan
Documents shall be deemed to confer
upon anyone other than Lender and Borrower 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


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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.


          (c) The general partners, members, principals and (if
Borrower is a trust) beneficial owners
of Borrower are experienced in the ownership and operation of properties
similar to the Property, and Borrower and Lender are relying solely upon such
expertise and business plan in connection
with the ownership and operation of the Property. Borrower is not relying on Lender’s expertise, business acumen or advice in
connection with the Property.


          (d) Notwithstanding anything to the contrary contained herein,
Lender is not undertaking the
performance of (i) any obligations under the Leases; or (ii) any obligations
with respect to such agreements, contracts,
certificates, instruments, franchises, permits, trademarks, licenses and other documents.


          (e) By accepting or approving anything required to be
observed, performed or fulfilled or to be given to Lender pursuant to this
Agreement, the Mortgage, the Note or the other Loan Documents, including,
without limitation, any officer’s certificate, balance sheet, statement of profit and loss or
other financial statement, survey, appraisal, or insurance policy, Lender shall
not be
deemed to have warranted, consented to, or affirmed the sufficiency, the
legality or effectiveness
of same, and such acceptance or approval thereof shall not constitute any
warranty or affirmation with
respect thereto by Lender.


          (f) Borrower recognizes and acknowledges that in accepting
this Agreement, the Note, the Mortgage and the other Loan Documents, Lender is expressly
and primarily relying on the truth and accuracy of the representations and
warranties set forth in Article 4 of this Agreement without any obligation to investigate
the Property and notwithstanding any investigation of the Property by Lender; that such reliance existed on
the part of Lender prior to the date hereof, that the warranties and
representations are a material inducement to Lender in making the Loan; and that Lender would not be willing to make the Loan
and accept this Agreement, the Note,
the Mortgage and the other Loan Documents in the absence of the warranties and representations as set forth in
Article 4 of this Agreement.


          Section 20.7. Publicity


          All
news releases, publicity or advertising by Borrower or its Affiliates through
any media
intended to reach the general public (excluding any prospectus or similar
document issued to investors or
potential investors in any Affiliate of Borrower) which refers to the Loan,
Lender, Banc of America Securities LLC, or
any of their Affiliates shall be subject to the prior written approval of Lender, not to be unreasonably
withheld. Lender shall be permitted to make any news, releases, publicity or advertising by Lender or its Affiliates
through any media intended to reach
the general public which refers to the Loan terms or provisions regarding the
amount of the Loan, the term, that the interest rate is a fixed rate (without
disclosure of the interest rate spread), the name and location of the
Property, that Sotheby’s is the primary Tenant at the Property, Borrower and that the Borrower is affiliated with
RFR Holding Corp. without the approval of Borrower or any such Persons. Borrower also agrees that Lender may
share any information pertaining to
the Loan with Bank of America Corporation, including its bank subsidiaries,
Bane of America Securities LLC and any other Affiliates of the foregoing, in
connection with the sale


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or transfer of the Loan or any
Participations and/or Securities created. Without in any way limiting the provisions of Article 13 hereof or
Lender’s rights thereunder, any news, releases, publicity or advertising by Lender or its Affiliates relating to any
provisions or terms of the Loan (except
as set forth above) shall require the prior approval of Borrower, which such
approval shall not be unreasonably
withheld, conditioned or delayed.


          Section 20.8. 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, and Borrower 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.


          Section 20.9. Entire Agreement


          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 between Borrower and Lender are superseded by the terms of this Agreement and the other Loan
Documents.


          Section 20.10. Liability


          If
Borrower or Borrower Principal consists of more than one Person, the
obligations and liabilities of each
such Person hereunder shall be joint and several.


          Section 20.11. Satisfaction of Indebtedness.
Upon (i) payment of the outstanding principal amount of, all unpaid interest on
and all other sums due under the Note and the other Loan Documents, or (ii) a defeasance of the Note
in accordance with the terms and provisions of Section 2.4(b) hereof, at the prior written request of Borrower, Lender
shall (a) assign, or sever into two (2) or more separate loans and assign, the
Mortgage and all other Loan Documents to Borrower and/or to any other Person(s) designated by Borrower, which
assignment and severance documents
shall be in recordable form (but shall be without representation or warranty
by, or recourse to, Lender, except that Lender shall represent that such
assignment(s) has been duly
authorized and that Lender has not assigned or encumbered the Mortgage or the
other Loan


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Documents),
(b) deliver to or as directed by Borrower (I) the original executed Note and
all originally executed
other notes held by Lender which may have been consolidated, amended and/or restated in connection with the execution
of the Note or (II) with respect to any such notes held by Lender where the original has been lost,
mutilated or destroyed (1) a lost note affidavit on Lender’s standard
form thereof for the benefit of any assignee lender and the title insurance
company insuring the Mortgage, as assigned, and (2) to the extent such title
company confirms in writing that it cannot issue a title insurance policy to
such assignee lender without exception for such lost, mutilated or destroyed
Note or notes, a lost note indemnity for the benefit of such title company from, at Lender’s option, Lender or
Lender’s custodian on Lender’s or Lender’s custodian’s standard from thereof (which such form shall be reasonably
acceptable to Borrower), (c) execute
and deliver an allonge with respect to the Note and any other note(s) described
in clause (b) above, (d) deliver the original executed Mortgage or a certified
copy thereof of record, and (e) execute and deliver such other instruments of
conveyance, assignment, termination, severance and release (including
appropriate UCC-3 termination statements) in recordable form as may be reasonably requested by Borrower to
evidence such assignment and/or severance. All reasonable, out of pocket fees and expenses incurred by Lender in
connection with the foregoing shall be
paid by Borrower. Concurrently with the payment of the outstanding principal
amount of, all unpaid interest on and all other sums due under the Note
and the other Loan Documents (whether or
not Borrower shall request an assignment as set forth in this Section 20.11),
Lender shall, upon Borrower’s prior
written request, deliver to Borrower (i) a payoff letter in Lender’s customary
form thereof, (ii) all original Policies which may be held by or on behalf of
Lender, (iii) any amounts held in the
Reserve Accounts or any Letters of Credit held by Lender hereunder, and (iv) a termination of any
guaranties delivered to Lender in connection with the Loan (excluding any environmental indemnity or
guaranties which specifically survive repayment
of the Loan), duly executed by Lender.


          Section 20.12. Inconsistencies With Sotheby’s
Lease.
Notwithstanding any provision of this Agreement or any of the other Loan Documents to the contrary
(but subject to the last sentence of this Section 20.12), so long as the
Sotheby’s Lease is in full force and effect, in the event that (a) Borrower is
obligated to perform or comply with any covenant specifically relating to the use, operation, leasing, maintenance,
repair, replacement or alteration of the Property contained in the Specified Provisions and
Sotheby’s is not obligated to perform or comply with any such covenant under the Sotheby’s Lease, or
such obligation is inconsistent with the obligation of Sotheby’s to perform or
comply with such covenant under the Sotheby’s Lease, then Borrower shall
not be obligated to perform or comply with such covenant or, in the case of an inconsistency, Borrower’s obligation to perform
or comply with such covenant shall be such as would be consistent with Sotheby’s obligation to perform or comply
with such covenant under the Sotheby’s
Lease, (b) Borrower is prohibited or restricted from, or its rights are
qualified or conditioned in any way with respect to, taking or refraining from
taking any action specifically relating
to the use, operation, leasing, maintenance, repair, replacement or alteration
of the Property contained in the
Specified Provisions and Sotheby’s is not prohibited or restricted from, or its rights are not so qualified or conditioned,
with respect to taking or refraining from taking any such action under the Sotheby’s Lease, or the prohibition,
restriction, qualification or condition imposed upon Borrower in connection
with such action is inconsistent with the prohibition, restriction,
qualification or condition imposed Sotheby’s under the Sotheby’s Lease, then Borrower shall not be so prohibited or
restricted from, and its rights shall not be qualified or conditioned in any way with respect to, taking or
refraining from taking any such action or, in


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the case
of any such inconsistency, any such prohibition, restriction, qualification or
condition shall be such as would be consistent with the prohibition, qualification
or condition imposed on Sotheby’s
under the Sotheby’s Lease, (c) Lender’s consent to any matter specifically
relating to the use, operation, leasing, maintenance, repair, replacement or
alteration of the Property is required under
the Specified Provisions and Borrower’s consent, as landlord, is not similarly required under the Sotheby’s Lease, then
Lender’s
consent to such matter shall not be required, and (d) Lender’s consent to any matter specifically relating to the use,
operation, leasing, maintenance, repair, replacement or alteration of
the Property is required under the Specified Provisions
and may be granted or denied in Lender’s sole discretion, but Borrower’s
consent, as landlord, to such matter may not be unreasonably withheld
under the Sotheby’s Lease, then Lender’s
consent to such matter shall not be unreasonable withheld. Notwithstanding the foregoing provisions of this Section 20.12,
Borrower acknowledges and agrees that the covenants contained in the following portions of this Agreement are
consistent in all respects with, or do
not impose any additional qualifications or restrictions with respect to,
Borrower’s rights with respect to
Sotheby’s under the Sotheby’s Lease (or if the same impose such additional obligations or restrictions, Borrower
has accepted the same and acknowledges that the same are independent
obligations of Borrower, separate and apart from the rights and obligations of Borrower and/or Sotheby’s under the Sotheby’s
Lease) and, as such, the following portions of this Agreement are not
subject to the terms and conditions contained in this Section 20.12: (i) Section 5.13(a)(iii)(A) and (B), and (ii) Section
9.2 (b).


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          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:


	
 

	
 

	
 


	
 

	
1334 YORK AVENUE L.P.,
 a Delaware limited partnership


	
 

	
 

	
 


	
 

	
By:

	
1334 GP II LLC, a Delaware limited liability company,
 its general partner


	
 

	
 

	
 


	
 

	
 

	
By:

	



	
 

	
 

	
 

	



	
 

	
 

	
 

	
Name: Aby Rosen


	
 

	
 

	
 

	
Title: Member





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BORROWER
 PRINCIPAL:


	
 

	
 


	
 

	
Acknowledged and agreed to with respect to its
 obligations set forth in Article 4, Section 12.6, Article 13, Article 15 and
 Article 18 hereof:


	
 

	
 


	
 

	



	
 

	



	
 

	
Aby Rosen, an individual


	
 

	
 


	
 

	



	
 

	



	
 

	
Michael Fuchs, an
 individual





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LENDER:


	
 

	
 

	
 


	
 

	
BANK OF
 AMERICA, N,A. a
 national banking association 


	
 

	
 

	
 


	
 

	
 

	
By:

	
  


	
 

	
 

	
 

	



	
 

	
 

	
Name: Dean C. Ravosa 


	
 

	
 

	
Title:   Principal








	
 

	
 


	
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SCHEDULE I


REPLACEMENTS


(attached hereto)


	
 

	
 


	
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Input Inflation Rate and Int. Rate for Rsve Acct. Input escrowed rsve
amt in D10 (Yr 1) only if same amt. each year OR annual amis in D10-P10 if
different each yr. If Underwritten amt. is different from escrow amt., input
underwritten amt in D13.


REPLACEMENT RESERVE ANALYSIS


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
Project Name:  

	
 

	
Sotheby’s Building Refinance  

	
 

	
 

	
Office Square Feet: 

	
406,110sf

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
Year Built: 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
Retail Square Feet: 

	
0sf

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
Inflation Rate: 

	
 

	
0.00

	
%

	
 

	
 

	
 

	
 

	
 

	
 

	
Total Square Feet: 

	
406,110sf

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
Interest Rate on Rsve Acct: 

	
 

	
0.00

	
%

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
Year 1

	
 

	
Year 2

	
 

	
Year 3

	
 

	
Year 4

	
 

	
Year 5

	
 

	
Year 6

	
 

	
Year 7

	
 

	
Year 8

	
 

	
Year 9

	
 

	
Year 10

	
 

	
Year 11

	
 

	
Year 12

	
 


	
Annual Rsves Escrow Per Square Foot:  

	
 

	
 

	
 

	
$

	
0.26

	
 

	
$

	
 0.26

	
 

	
$

	
0.26

	
 

	
$

	
0.26

	
 

	
$

	
0.26

	
 

	
$

	
0.26

	
 

	
$

	
0.26

	
 

	
$

	
0.26

	
 

	
$

	
0.26

	
 

	
$

	
0.26

	
 

	
$

	
0.26

	
 

	
$

	
0.26

	
 


	
Avg. Annual Rsves Per Square Foot: 

	
 

	
$  0.26

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 


	
Underwritten Annual Reserves Per Square Foot: 

	
 

	
$  0.26

	
 

	
- (input, If different form escrow) 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 








	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
ITEM

	
 

	
Immediate

 Repairs

	
 

	
Year 1

	
 

	
Year 2

	
 

	
Year 3

	
 

	
Year 4

	
 

	
Year 5

	
 

	
Year 6

	
 

	
Year 7

	
 

	
Year 8

	
 

	
Year 9

	
 

	
Year 10

	
 

	
Year 11

	
 

	
Year 12

	
 

	
Total

	
 


	


	
 

	


	
 

	


	
 

	


	
 

	


	
 

	


	
 

	


	
 

	


	
 

	


	
 

	


	
 

	


	
 

	


	
 

	


	
 

	


	
 

	



	
 


	
Concrete - parking garage

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 $

	
13,500

	
 

	
 

	
 

	
 

	
$

	
13.500

	
 


	
Asphalt & Striping - parking lot/parking
garage

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
      —

	
 


	
Lighting - parking area and grounds

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
0

	
 


	
Landscaping

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
0

	
 


	
Drainage & irrigation System 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
—

	
 


	
Plumbing Systems

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
375

	
 

	
$

	
375

	
 

	
$

	
375

	
 

	
 $

	
5,975

	
 

	
$

	
375

	
 

	
$

	
7,475

	
 


	
Roof

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
—

	
 


	
HVAC System

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 $

	
76,454

	
 

	
 

	
 

	
 

	
$

	
76,454

	
 


	
Building Facade

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 $

	
 505,500

	
 

	
 

	
 

	
 

	
$

	
505,500

	
 


	
Windows & Doors

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
—

	
 


	
Sprinklers

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
—

	
 


	
Eleavtor / Escalator

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 $

	
   12,000

	
 

	
$

	
12,000

	
 

	
$

	
24,000

	
 


	
Building & Elevator - ADR upfit

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
—

	
 


	
Lighting - common areas

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
—

	
 


	
Carpeting & wallcoverings - common areas

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
60,000

	
 

	
$

	
60,000

	
 

	
$

	
60,000

	
 

	
$

	
60,000

	
 

	
$

	
60,000

	
 

	
$

	
60,000

	
 

	
$

	
60,000

	
 

	
 $

	
60,000

	
 

	
$

	
60,000

	
 

	
$

	
540,000

	
 


	
Painting - Common areas

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
—

	
 


	
Miscellaneous

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
—

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
—

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
—

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
—

	
 


	
 

	
 

	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	
 

	
 

	
 


	
IMMEDIATE REPAIRS  

	
$

	
0

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
—

	
 


	
 

	
 

	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	
 

	
 

	
 


	
Cash Requirements 

	
 

	
 

	
 

	
$

	
0

	
 

	
$

	
0

	
 

	
$

	
0

	
 

	
$

	
60,000

	
 

	
$

	
60,000

	
 

	
$

	
60,000

	
 

	
$

	
60,000

	
 

	
$

	
60,375

	
 

	
$

	
60,375

	
 

	
$

	
60,375

	
 

	
 $

	
673,429

	
 

	
$

	
72,375

	
 

	
$

	
1,166.929

	
 


	
 

	
 

	
 

	
 

	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	
 

	
 

	
 


	
Inflation factor @

	
0.00%

	
 

	
 

	
 

	
100.00

	
%

	
 

	
100.00

	
%

	
 

	
100.00

	
%

	
 

	
100.00

	
%

	
 

	
100.00

	
%

	
 

	
100.00

	
%

	
 

	
100.00

	
%

	
 

	
100.00

	
%

	
 

	
100.00

	
%

	
 

	
100.00

	
%

	
 

	
100.00

	
%

	
 

	
100.00

	
%

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	
 

	
 

	
 


	
CASH REQUIREMENTS W/ Inflation 

	
 

	
 

	
 

	
$

	
0

	
 

	
$

	
0

	
 

	
$

	
0

	
 

	
$

	
60,000

	
 

	
$

	
60,000

	
 

	
$

	
60,000

	
 

	
$

	
60,000

	
 

	
$

	
60,375

	
 

	
$

	
60,375

	
 

	
$

	
60,375

	
 

	
 $

	
673,429

	
 

	
$

	
72,375

	
 

	
$

	
1,166,929

	
 


	
 

	
 

	
 

	
 

	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	
 

	
 

	
 


	
ANNUAL RESERVE COLLECTIONS 

	
 

	
 

	
 

	
$

	
105,589

	
 

	
$

	
105,589

	
 

	
$

	
105,589

	
 

	
$

	
105,589

	
 

	
$

	
105,589

	
 

	
$

	
105,589

	
 

	
$

	
105,589

	
 

	
$

	
105,589

	
 

	
$

	
105,589

	
 

	
$

	
105,589

	
 

	
 $

	
105,589

	
 

	
$

	
105,589

	
 

	
$

	
1,267,063

	
 


	
 

	
 

	
 

	
 

	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	
 

	
 

	
 


	
Annual Surplus/(Shortfall)

	
 

	
 

	
 

	
$

	
105,589

	
 

	
$

	
105,589

	
 

	
$

	
105,589

	
 

	
$

	
45,589

	
 

	
$

	
45,589

	
 

	
$

	
45,589

	
 

	
$

	
45,589

	
 

	
$

	
45,214

	
 

	
$

	
45,214

	
 

	
$

	
45,214

	
 

	
($

	
567,840)

	
 

	
$

	
33,214

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	
 


	
Interest @

	
0.00%

	
 

	
 

	
$

	
0

	
 

	
$

	
0

	
 

	
$

	
0

	
 

	
$

	
0

	
 

	
$

	
0

	
 

	
$

	
0

	
 

	
$

	
0

	
 

	
$

	
0

	
 

	
$

	
0

	
 

	
$

	
0

	
 

	
 $

	
0

	
 

	
$

	
0

	
 

	
 

	
 

	
 


	
 

	
 

	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	
 


	
REVE BALANCE/(SHORTFALL) 

	
$

	
0

	
 

	
$

	
105,589

	
 

	
$

	
211,177

	
 

	
$

	
316,766

	
 

	
$

	
362,354

	
 

	
$

	
407,943

	
 

	
$

	
453,532

	
 

	
$

	
499,120

	
 

	
$

	
544,334

	
 

	
$

	
589,547

	
 

	
$

	
634,761

	
 

	
 $

	
66,921

	
 

	
$

	
100.134

	
 

	
 

	
 

	
 


	
 

	
 

	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	


	
 








	
 

	
 


	
Confidential Treatment Requested by BANA

	
BANA-Soth-00189












Schedule
2.2(b)


Monthly
Payments

(see attached)


	
 

	
 


	
Confidential Treatment Requested by BANA

	
BANA-Soth-00190













SCHEDULE
2.2(b) 


Sotheby’s
Monthly Payments


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
$25.0MM B-Note


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
Period

	
 

	
Date

	
 

	
Interest

	
 

	
Principal

	
 

	
Cash
 Flows


	
0

	
 

	
7/1/2005

	
 

	
 

	
 

	
 

	
 

	
 


	
1

	
 

	
8/1/2005

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
2

	
 

	
9/1/2005

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
3

	
 

	
10/1/2005

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
4

	
 

	
11/1/2005

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
5

	
 

	
12/1/2005

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
6

	
 

	
1/1/2006

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
7

	
 

	
2/1/2006

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
8

	
 

	
3/1/2006

	
 

	
151,083.33

	
 

	
—

	
 

	
151,083.33


	
9

	
 

	
4/1/2006

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
10

	
 

	
5/1/2006

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
11

	
 

	
6/1/2006

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
12

	
 

	
7/1/2006

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
13

	
 

	
8/1/2006

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
14

	
 

	
9/1/2006

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
15

	
 

	
10/1/2006

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
16

	
 

	
11/1/2006

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
17

	
 

	
12/1/2006

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
18

	
 

	
1/1/2007

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
19

	
 

	
2/1/2007

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
20

	
 

	
3/1/2007

	
 

	
151,083.33

	
 

	
—

	
 

	
151,083.33


	
21

	
 

	
4/1/2007

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
22

	
 

	
5/1/2007

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
23

	
 

	
6/1/2007

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
24

	
 

	
7/1/2007

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
25

	
 

	
8/1/2007

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
26

	
 

	
9/1/2007

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
27

	
 

	
10/1/2007

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
28

	
 

	
11/1/2007

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
29

	
 

	
12/1/2007

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
30

	
 

	
1/1/2008

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
31

	
 

	
2/1/2008

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
32

	
 

	
3/1/2008

	
 

	
156,479.17

	
 

	
—

	
 

	
156,479.17


	
33

	
 

	
4/1/2008

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
34

	
 

	
5/1/2008

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
35

	
 

	
6/1/2008

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
36

	
 

	
7/1/2008

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
37

	
 

	
8/1/2008

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
38

	
 

	
9/1/2008

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
39

	
 

	
10/1/2008

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
40

	
 

	
11/1/2008

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
41

	
 

	
12/1/2008

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
42

	
 

	
1/1/2009

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
43

	
 

	
2/1/2009

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
44

	
 

	
3/1/2009

	
 

	
151,083.33

	
 

	
—

	
 

	
151,083.33


	
45

	
 

	
4/1/2009

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
46

	
 

	
5/1/2009

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
47

	
 

	
6/1/2009

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
48

	
 

	
7/1/2009

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
49

	
 

	
8/1/2009

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
50

	
 

	
9/1/2009

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
51

	
 

	
10/1/2009

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
52

	
 

	
11/1/2009

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
53

	
 

	
12/1/2009

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
54

	
 

	
1/1/2010

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
55

	
 

	
2/1/2010

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
56

	
 

	
3/1/2010

	
 

	
151,083.33

	
 

	
—

	
 

	
151,083.33


	
57

	
 

	
4/1/2010

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
 


	
$210.0MM A-Note


	
 


	
Period

	
 

	
Date

	
 

	
Interest 

	
 

	
Principal

	
 

	
Cash Flows


	
0

	
 

	
7/1/2005

	
 

	
 

	
 

	
 

	
 

	
 


	
1

	
 

	
8/1/2005

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
2

	
 

	
9/1/2005

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
3

	
 

	
10/1/2005

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
4

	
 

	
11/1/2005

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
5

	
 

	
12/1/2005

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
6

	
 

	
1/1/2006

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
7

	
 

	
2/1/2006

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
8

	
 

	
3/1/2006

	
 

	
850,904.44

	
 

	
—

	
 

	
850,904.44


	
9

	
 

	
4/1/2006

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
10

	
 

	
5/1/2006

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
11

	
 

	
6/1/2006

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
12

	
 

	
7/1/2006

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
13

	
 

	
8/1/2006

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
14

	
 

	
9/1/2006

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
15

	
 

	
10/1/2006

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
16

	
 

	
11/1/2006

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
17

	
 

	
12/1/2006

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
18

	
 

	
1/1/2007

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
19

	
 

	
2/1/2007

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
20

	
 

	
3/1/2007

	
 

	
850,904.44

	
 

	
—

	
 

	
850,904.44


	
21

	
 

	
4/1/2007

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
22

	
 

	
5/1/2007

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
23

	
 

	
6/1/2007

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
24

	
 

	
7/1/2007

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
25

	
 

	
8/1/2007

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
26

	
 

	
9/1/2007

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
27

	
 

	
10/1/2007

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
28

	
 

	
11/1/2007

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
29

	
 

	
12/1/2007

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
30

	
 

	
1/1/2008

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
31

	
 

	
2/1/2008

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
32

	
 

	
3/1/2008

	
 

	
881,293.89

	
 

	
—

	
 

	
881,293.89


	
33

	
 

	
4/1/2008

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
34

	
 

	
5/1/2008

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
35

	
 

	
6/1/2008

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
36

	
 

	
7/1/2008

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
37

	
 

	
8/1/2008

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
38

	
 

	
9/1/2008

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
39

	
 

	
10/1/2008

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
40

	
 

	
11/1/2008

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
41

	
 

	
12/1/2008

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
42

	
 

	
1/1/2009

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
43

	
 

	
2/1/2009

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
44

	
 

	
3/1/2009

	
 

	
850,904.44

	
 

	
—

	
 

	
850,904.44


	
45

	
 

	
4/1/2009

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
46

	
 

	
5/1/2009

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
47

	
 

	
6/1/2009

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
48

	
 

	
7/1/2009

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
49

	
 

	
8/1/2009

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
50

	
 

	
9/1/2009

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
51

	
 

	
10/1/2009

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
52

	
 

	
11/1/2009

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
53

	
 

	
12/1/2009

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
54

	
 

	
1/1/2010

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
55

	
 

	
2/1/2010

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
56

	
 

	
3/1/2010

	
 

	
850,904.44

	
 

	
—

	
 

	
850,904.44


	
57

	
 

	
4/1/2010

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78





Page 1 of 6


	
 

	
 


	
Confidential Treatment Requested by
 BANA

	
BANA-Soth-00191












SCHEDULE 2.2(b) 


Sotheby’s Monthly Payments


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
$25.0MM B-Note


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
58

	
 

	
5/1/2010

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00 


	
59

	
 

	
6/1/2010

	
 

	
167,270.83

	
 

	
—

	
 

	
167,270.83


	
60

	
 

	
7/1/2010

	
 

	
161,875.00

	
 

	
—

	
 

	
161,875.00


	
61

	
 

	
8/1/2010

	
 

	
167,270.83

	
 

	
23,649.76

	
 

	
190,920.60


	
62

	
 

	
9/1/2010

	
 

	
167,112.60

	
 

	
23,761.41

	
 

	
190,874.00


	
63

	
 

	
10/1/2010

	
 

	
161,568.01

	
 

	
27,673.30

	
 

	
189,241.31


	
64

	
 

	
11/1/2010

	
 

	
166,768.46

	
 

	
24,004.21

	
 

	
190,772.67


	
65

	
 

	
12/1/2010

	
 

	
161,233.40

	
 

	
27,909.38

	
 

	
189,142.78


	
66

	
 

	
1/1/2011

	
 

	
166,421.11

	
 

	
24,249.27

	
 

	
190,670.38


	
67

	
 

	
2/1/2011

	
 

	
166,258.86

	
 

	
24,363.74

	
 

	
190,622.61


	
68

	
 

	
3/1/2011

	
 

	
150,022.06

	
 

	
35,819.36

	
 

	
185,841.42


	
69

	
 

	
4/1/2011

	
 

	
165,856.19

	
 

	
24,647.85

	
 

	
190,504.03


	
70

	
 

	
5/1/2011

	
 

	
160,346.39

	
 

	
28,535.19

	
 

	
188,881.59


	
71

	
 

	
6/1/2011

	
 

	
165,500.35

	
 

	
24,898.90

	
 

	
190,399.25


	
72

	
 

	
7/1/2011

	
 

	
160,000.41

	
 

	
28,779.30

	
 

	
188,779.71


	
73

	
 

	
8/1/2011

	
 

	
165,141.20

	
 

	
25,152.30

	
 

	
190,293.49


	
74

	
 

	
9/1/2011

	
 

	
164,972.91

	
 

	
25,271.03

	
 

	
190,243.94


	
75

	
 

	
10/1/2011

	
 

	
159,487.57

	
 

	
29,141.12

	
 

	
188,628.69


	
76

	
 

	
11/1/2011

	
 

	
164,608.84

	
 

	
25,527.89

	
 

	
190,136.73


	
77

	
 

	
12/1/2011

	
 

	
159,133.59

	
 

	
29,390.87

	
 

	
188,524.46


	
78

	
 

	
1/1/2012

	
 

	
164,241.39

	
 

	
25,787.14

	
 

	
190,028.53


	
79

	
 

	
2/1/2012

	
 

	
164,068.85

	
 

	
25,908.87

	
 

	
189,977.72


	
80

	
 

	
3/1/2012

	
 

	
153,321.60

	
 

	
33,491.43

	
 

	
186,813.02


	
81

	
 

	
4/1/2012

	
 

	
163,671.42

	
 

	
26,189.28

	
 

	
189,860.69


	
82

	
 

	
5/1/2012

	
 

	
158,222.12

	
 

	
30,033.94

	
 

	
188,256.06


	
83

	
 

	
6/1/2012

	
 

	
163,295.24

	
 

	
26,454.68

	
 

	
189,749.92


	
84

	
 

	
7/1/2012

	
 

	
157,856.35

	
 

	
30,292.00

	
 

	
188,148.36


	
85

	
 

	
8/1/2012

	
 

	
162,915.55

	
 

	
26,722.56

	
 

	
189,638.12


	
86

	
 

	
9/1/2012

	
 

	
162,736.76

	
 

	
26,848.71

	
 

	
189,585.47


	
87

	
 

	
10/1/2012

	
 

	
157,313.34

	
 

	
30,675.12

	
 

	
187,988.46


	
88

	
 

	
11/1/2012

	
 

	
162,351.88

	
 

	
27,120.26

	
 

	
189,472.13


	
89

	
 

	
12/1/2012

	
 

	
156,939.11

	
 

	
30,939.14

	
 

	
187,878.26


	
90

	
 

	
1/1/2013

	
 

	
161,963.41

	
 

	
27,394.33

	
 

	
189,357.74


	
91

	
 

	
2/1/2013

	
 

	
161,780.12

	
 

	
27,523.65

	
 

	
189,303.77


	
92

	
 

	
3/1/2013

	
 

	
145,957.64

	
 

	
38,686.95

	
 

	
184,644.59


	
93

	
 

	
4/1/2013

	
 

	
161,337.12

	
 

	
27,836.21

	
 

	
189,173.32


	
94

	
 

	
5/1/2013

	
 

	
155,952.45

	
 

	
31,635.27

	
 

	
187,587.72


	
95

	
 

	
6/1/2013

	
 

	
160,939.20

	
 

	
28,116.95

	
 

	
189,056.15


	
96

	
 

	
7/1/2013

	
 

	
155,565.56

	
 

	
31,908.24

	
 

	
187,473.79


	
97

	
 

	
8/1/2013

	
 

	
160,537.58

	
 

	
28,400.30

	
 

	
188,937.89


	
98

	
 

	
9/1/2013

	
 

	
160,347.56

	
 

	
28,534.37

	
 

	
188,881.93


	
99

	
 

	
10/1/2013

	
 

	
154,990.30

	
 

	
32,314.10

	
 

	
187,304.40


	
100

	
 

	
11/1/2013

	
 

	
159,940.43

	
 

	
28,821.61

	
 

	
188,762.05


	
101

	
 

	
12/1/2013

	
 

	
154,594.45

	
 

	
32,593.39

	
 

	
187,187.83


	
102

	
 

	
1/1/2014

	
 

	
159,529.52

	
 

	
29,111.53

	
 

	
188,641.04


	
103

	
 

	
2/1/2014

	
 

	
159,334.74

	
 

	
29,248.95

	
 

	
188,583.69


	
104

	
 

	
3/1/2014

	
 

	
143,738.48

	
 

	
40,252.64

	
 

	
183,991.12


	
105

	
 

	
4/1/2014

	
 

	
158,869.71

	
 

	
29,577.04

	
 

	
188,446.75


	
106

	
 

	
5/1/2014

	
 

	
153,553.37

	
 

	
33,327.90

	
 

	
186,881.27


	
107

	
 

	
6/1/2014

	
 

	
158,448.83

	
 

	
29,873.99

	
 

	
188,322.82


	
108

	
 

	
7/1/2014

	
 

	
153,144.14

	
 

	
33,616.63

	
 

	
186,760.77


	
109

	
 

	
8/1/2014

	
 

	
158,024.02

	
 

	
30,173.71

	
 

	
188,197.73


	
110

	
 

	
9/1/2014

	
 

	
157,822.13

	
 

	
30,316.14

	
 

	
188,138.28


	
111

	
 

	
10/1/2014

	
 

	
152,534.80

	
 

	
34,046.54

	
 

	
186,581.34


	
112

	
 

	
11/1/2014

	
 

	
157,391.49

	
 

	
30,619.98

	
 

	
188,011.47


	
113

	
 

	
12/1/2014

	
 

	
152,116.08

	
 

	
34,341.96

	
 

	
186,458.04


	
114

	
 

	
1/1/2015

	
 

	
156,956.84

	
 

	
30,926.64

	
 

	
187,883.48


	
115

	
 

	
2/1/2015

	
 

	
156,749.92

	
 

	
31,072.63

	
 

	
187,822.55


	
116

	
 

	
3/1/2015

	
 

	
141,392.79

	
 

	
41,907.61

	
 

	
183,300.40


	
117

	
 

	
4/1/2015

	
 

	
156,261.62

	
 

	
31,417.14

	
 

	
187,678.76


	
118

	
 

	
5/1/2015

	
 

	
151,017.50

	
 

	
35,117.05

	
 

	
186,134.54


	
 


	
$210.0MM A-Note


	
 


	
58

	
 

	
5/1/2010

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
59

	
 

	
6/1/2010

	
 

	
942,072.78

	
 

	
—

	
 

	
942,072.78


	
60

	
 

	
7/1/2010

	
 

	
911,683.33

	
 

	
—

	
 

	
911,683.33


	
61

	
 

	
8/1/2010

	
 

	
942,072.78

	
 

	
198,658.02

	
 

	
1,140,730.80


	
62

	
 

	
9/1/2010

	
 

	
941,181.59

	
 

	
199,595.81

	
 

	
1,140,777.40


	
63

	
 

	
10/1/2010

	
 

	
909,954.37

	
 

	
232,455.71

	
 

	
1,142,410.09


	
64

	
 

	
11/1/2010

	
 

	
939,243.38

	
 

	
201,635.36

	
 

	
1,140,878.73


	
65

	
 

	
12/1/2010

	
 

	
908,069.83

	
 

	
234,438.79

	
 

	
1,142,508.62


	
66

	
 

	
1/1/2011

	
 

	
937,287.12

	
 

	
203,693.90

	
 

	
1,140,981.02


	
67

	
 

	
2/1/2011

	
 

	
936,373.34

	
 

	
204,655.45

	
 

	
1,141,028.79


	
68

	
 

	
3/1/2011

	
 

	
844,927.31

	
 

	
300,882.66

	
 

	
1,145,809.98


	
69

	
 

	
4/1/2011

	
 

	
934,105.46

	
 

	
207,041.90

	
 

	
1,141,147.37


	
70

	
 

	
5/1/2011

	
 

	
903,074.19

	
 

	
239,695.63

	
 

	
1,142,769.81


	
71

	
 

	
6/1/2011

	
 

	
932,101.37

	
 

	
209,150.78

	
 

	
1,141,252.15


	
72

	
 

	
7/1/2011

	
 

	
901,125.59

	
 

	
241,746.11

	
 

	
1,142,871.69


	
73

	
 

	
8/1/2011

	
 

	
930,078.62

	
 

	
211,279.29

	
 

	
1,141,357.91


	
74

	
 

	
9/1/2011

	
 

	
929,130.81

	
 

	
212,276.65

	
 

	
1,141,407.46


	
75

	
 

	
10/1/2011

	
 

	
898,237.28

	
 

	
244,785.43

	
 

	
1,143,022.71


	
76

	
 

	
11/1/2011

	
 

	
927,080.40

	
 

	
214,434.27

	
 

	
1,141,514.67


	
77

	
 

	
12/1/2011

	
 

	
896,243.65

	
 

	
246,883.30

	
 

	
1,143,126.94


	
78

	
 

	
1/1/2012

	
 

	
925,010.90

	
 

	
216,611.97

	
 

	
1,141,622.87


	
79

	
 

	
2/1/2012

	
 

	
924,039.17

	
 

	
217,634.51

	
 

	
1,141,673.68


	
80

	
 

	
3/1/2012

	
 

	
863,510.40

	
 

	
281,327.97

	
 

	
1,144,838.38


	
81

	
 

	
4/1/2012

	
 

	
921,800.79

	
 

	
219,989.92

	
 

	
1,141,790.71


	
82

	
 

	
5/1/2012

	
 

	
891,110.23

	
 

	
252,285.11

	
 

	
1,143,395.34


	
83

	
 

	
6/1/2012

	
 

	
919,682.14

	
 

	
222,219.34

	
 

	
1,141,901.48


	
84

	
 

	
7/1/2012

	
 

	
889,050.24

	
 

	
254,452.81

	
 

	
1,143,503.04


	
85

	
 

	
8/1/2012

	
 

	
917,543.76

	
 

	
224,469.53

	
 

	
1,142,013.28


	
86

	
 

	
9/1/2012

	
 

	
916,536.77

	
 

	
225,529.16

	
 

	
1,142,065.93


	
87

	
 

	
10/1/2012

	
 

	
885,991.97

	
 

	
257,670.97

	
 

	
1,143,662.94


	
88

	
 

	
11/1/2012

	
 

	
914,369.11

	
 

	
227,810.16

	
 

	
1,142,179.27


	
89

	
 

	
12/1/2012

	
 

	
883,884.33

	
 

	
259,888.81

	
 

	
1,143,773.14


	
90

	
 

	
1/1/2013

	
 

	
912,181.26

	
 

	
230,112.40

	
 

	
1,142,293.66


	
91

	
 

	
2/1/2013

	
 

	
911,148.96

	
 

	
231,198.67

	
 

	
1,142,347.63


	
92

	
 

	
3/1/2013

	
 

	
822,036.46

	
 

	
324,970.35

	
 

	
1,147,006.81


	
93

	
 

	
4/1/2013

	
 

	
908,653.95

	
 

	
233,824.13

	
 

	
1,142,478.08


	
94

	
 

	
5/1/2013

	
 

	
878,327.42

	
 

	
265,736.26

	
 

	
1,144,063.68


	
95

	
 

	
6/1/2013

	
 

	
906,412.90

	
 

	
236,182.36

	
 

	
1,142,595.25


	
96

	
 

	
7/1/2013

	
 

	
876,148.42

	
 

	
268,029.19

	
 

	
1,144,177.61


	
97

	
 

	
8/1/2013

	
 

	
904,150.97

	
 

	
238,562.54

	
 

	
1,142,713.51


	
98

	
 

	
9/1/2013

	
 

	
903,080.77

	
 

	
239,688.70

	
 

	
1,142,769.47


	
99

	
 

	
10/1/2013

	
 

	
872,908.56

	
 

	
271,438.44

	
 

	
1,144,347.00


	
100

	
 

	
11/1/2013

	
 

	
900,787.82

	
 

	
242,101.54

	
 

	
1,142,889.35


	
101

	
 

	
12/1/2013

	
 

	
870,679.10

	
 

	
273,784.47

	
 

	
1,144,463.57


	
102

	
 

	
1/1/2014

	
 

	
898,473.52

	
 

	
244,536.83

	
 

	
1,143,010.36


	
103

	
 

	
2/1/2014

	
 

	
897,376.52

	
 

	
245,691.20

	
 

	
1,143,067.71


	
104

	
 

	
3/1/2014

	
 

	
809,538.10

	
 

	
338,122.17

	
 

	
1,147,660.28


	
105

	
 

	
4/1/2014

	
 

	
894,757.49

	
 

	
248,447.15

	
 

	
1,143,204.65


	
106

	
 

	
5/1/2014

	
 

	
864,815.75

	
 

	
279,954.37

	
 

	
1,144,770.13


	
107

	
 

	
6/1/2014

	
 

	
892,387.05

	
 

	
250,941.53

	
 

	
1,143,328.58


	
108

	
 

	
7/1/2014

	
 

	
862,510.95

	
 

	
282,379.68

	
 

	
1,144,890.63


	
109

	
 

	
8/1/2014

	
 

	
889,994.54

	
 

	
253,459.13

	
 

	
1,143,453.67


	
110

	
 

	
9/1/2014

	
 

	
888,857.51

	
 

	
254,655.61

	
 

	
1,143,513.12


	
111

	
 

	
10/1/2014

	
 

	
859,079.14

	
 

	
285,990.93

	
 

	
1,145,070.06


	
112

	
 

	
11/1/2014

	
 

	
886,432.13

	
 

	
257,207.80

	
 

	
1,143,639.93


	
113

	
 

	
12/1/2014

	
 

	
856,720.92

	
 

	
288,472.44

	
 

	
1,145,193.36


	
114

	
 

	
1/1/2015

	
 

	
883,984.18

	
 

	
259,783.74

	
 

	
1,143,767.92


	
115

	
 

	
2/1/2015

	
 

	
882,818.77

	
 

	
261,010.08

	
 

	
1,143,828.85


	
116

	
 

	
3/1/2015

	
 

	
796,327.11

	
 

	
352,023.90

	
 

	
1,148,351.00


	
117

	
 

	
4/1/2015

	
 

	
880,068.67

	
 

	
263,903.97

	
 

	
1,143,972.64


	
118

	
 

	
5/1/2015

	
 

	
850,533.65

	
 

	
294,983.20

	
 

	
1,145,516.86





Page 2 of 6


	
 

	
 


	
Confidential Treatment Requested by
 BANA

	
BANA-Soth-00192












SCHEDULE
2.2(b) 


Sotheby’s
Monthly Payments 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
$25.0MM B-Note


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
119

	
 

	
6/1/2015

	
 

	
155,816.45

	
 

	
31,731.22

	
 

	
187,547.67


	
120

	
 

	
7/1/2015

	
 

	
150,584.65

	
 

	
35,422.43

	
 

	
186,007.09


	
121

	
 

	
8/1/2015

	
 

	
155,367.14

	
 

	
32,048.23

	
 

	
187,415.37


	
122

	
 

	
9/1/2015

	
 

	
155,152.71

	
 

	
32,199.52

	
 

	
187,352.22


	
123

	
 

	
10/1/2015

	
 

	
149,939.29

	
 

	
35,877.76

	
 

	
185,817.05


	
124

	
 

	
11/1/2015

	
 

	
154,697.21

	
 

	
32,520.88

	
 

	
187,218.10


	
125

	
 

	
12/1/2015

	
 

	
149,496.41

	
 

	
36,190.23

	
 

	
185,686.64


	
126

	
 

	
1/1/2016

	
 

	
154,237.48

	
 

	
32,845.24

	
 

	
187,082.72


	
127

	
 

	
2/1/2016

	
 

	
154,017.72

	
 

	
33,000.29

	
 

	
187,018.01


	
128

	
 

	
3/1/2016

	
 

	
143,874.54

	
 

	
40,156.65

	
 

	
184,031.19


	
129

	
 

	
4/1/2016

	
 

	
153,528.24

	
 

	
33,345.64

	
 

	
186,873.87


	
130

	
 

	
5/1/2016

	
 

	
148,359.80

	
 

	
36,992.14

	
 

	
185,351.94


	
131

	
 

	
6/1/2016

	
 

	
153,057.62

	
 

	
33,677.67

	
 

	
186,735.29


	
132

	
 

	
7/1/2016

	
 

	
147,902.21

	
 

	
37,314.99

	
 

	
185,217.20


	
133

	
 

	
8/1/2016

	
 

	
152,582.62

	
 

	
34,012.80

	
 

	
186,595.42


	
134

	
 

	
9/1/2016

	
 

	
152,355.04

	
 

	
34,173.36

	
 

	
186,528.41


	
135

	
 

	
10/1/2016

	
 

	
147,219.09

	
 

	
37,796.95

	
 

	
185,016.04


	
136

	
 

	
11/1/2016

	
 

	
151,873.50

	
 

	
34,513.11

	
 

	
186,386.61


	
137

	
 

	
12/1/2016

	
 

	
146,750.89

	
 

	
38,127.29

	
 

	
184,878.17


	
138

	
 

	
1/1/2017

	
 

	
151,387.48

	
 

	
34,856.01

	
 

	
186,243.49


	
139

	
 

	
2/1/2017

	
 

	
151,154.26

	
 

	
35,020.55

	
 

	
186,174.82


	
140

	
 

	
3/1/2017

	
 

	
136,314.79

	
 

	
45,490.31

	
 

	
181,805.10


	
141

	
 

	
4/1/2017

	
 

	
150,615.58

	
 

	
35,400.62

	
 

	
186,016.19


	
142

	
 

	
5/1/2017

	
 

	
145,527.79

	
 

	
38,990.22

	
 

	
184,518.01


	
143

	
 

	
6/1/2017

	
 

	
150,117.84

	
 

	
35,751.79

	
 

	
185,869.63


	
144

	
 

	
7/1/2017

	
 

	
145,043.84

	
 

	
39,331.67

	
 

	
184,375.51


	
145

	
 

	
8/1/2017

	
 

	
149,615.47

	
 

	
36,106.23

	
 

	
185,721.70


	
146

	
 

	
9/1/2017

	
 

	
149,373.89

	
 

	
36,276.67

	
 

	
185,650.56


	
147

	
 

	
10/1/2017

	
 

	
144,320.49

	
 

	
39,842.02

	
 

	
184,162.50


	
148

	
 

	
11/1/2017

	
 

	
148,864.59

	
 

	
36,636.00

	
 

	
185,500.59


	
149

	
 

	
12/1/2017

	
 

	
143,825.29

	
 

	
40,191.39

	
 

	
184,016.69


	
150

	
 

	
1/1/2018

	
 

	
148,350.55

	
 

	
36,998.67

	
 

	
185,349.22


	
151

	
 

	
2/1/2018

	
 

	
148,103.00

	
 

	
37,173.32

	
 

	
185,276.33


	
152

	
 

	
3/1/2018

	
 

	
133,545.80

	
 

	
47,443.92

	
 

	
180,989.73


	
153

	
 

	
4/1/2018

	
 

	
147,536.84

	
 

	
37,572.77

	
 

	
185,109.61


	
154

	
 

	
5/1/2018

	
 

	
142,534.30

	
 

	
41,102.23

	
 

	
183,636.53


	
155

	
 

	
6/1/2018

	
 

	
147,010.44

	
 

	
37,944.16

	
 

	
184,954.60


	
156

	
 

	
7/1/2018

	
 

	
142,022.48

	
 

	
41,463.34

	
 

	
183,485.82


	
157

	
 

	
8/1/2018

	
 

	
146,479.14

	
 

	
38,319.02

	
 

	
184,798.15


	
158

	
 

	
9/1/2018

	
 

	
146,222.75

	
 

	
38,499.90

	
 

	
184,722.66


	
159

	
 

	
10/1/2018

	
 

	
141,256.60

	
 

	
42,003.69

	
 

	
183,260.29


	
160

	
 

	
11/1/2018

	
 

	
145,684.12

	
 

	
38,879.93

	
 

	
184,564.05


	
161

	
 

	
12/1/2018

	
 

	
140,732.88

	
 

	
42,373.20

	
 

	
183,106.08


	
162

	
 

	
1/1/2019

	
 

	
145,140.46

	
 

	
39,263.50

	
 

	
184,403.96


	
163

	
 

	
2/1/2019

	
 

	
144,877.76

	
 

	
39,448.84

	
 

	
184,326.60


	
164

	
 

	
3/1/2019

	
 

	
130,618.93

	
 

	
49,508.93

	
 

	
180,127.86


	
165

	
 

	
4/1/2019

	
 

	
144,282.56

	
 

	
39,868.78

	
 

	
184,151.33


	
166

	
 

	
5/1/2019

	
 

	
139,370.13

	
 

	
43,334.66

	
 

	
182,704.79


	
167

	
 

	
6/1/2019

	
 

	
143,725.86

	
 

	
40,261.55

	
 

	
183,987.41


	
168

	
 

	
7/1/2019

	
 

	
138,828.85

	
 

	
43,716.56

	
 

	
182,545.40


	
169

	
 

	
8/1/2019

	
 

	
143,163.97

	
 

	
40,657.98

	
 

	
183,821.95


	
170

	
 

	
9/1/2019

	
 

	
142,891.94

	
 

	
40,849.91

	
 

	
183,741.84


	
171

	
 

	
10/1/2019

	
 

	
138,018.02

	
 

	
44,288.62

	
 

	
182,306.64


	
172

	
 

	
11/1/2019

	
 

	
142,322.29

	
 

	
41,251.81

	
 

	
183,574.10


	
173

	
 

	
12/1/2019

	
 

	
137,464.14

	
 

	
44,679.40

	
 

	
182,143.54


	
174

	
 

	
1/1/2020

	
 

	
141,747.34

	
 

	
41,657.46

	
 

	
183,404.80


	
175

	
 

	
2/1/2020

	
 

	
141,468.62

	
 

	
41,854.11

	
 

	
183,322.72


	
176

	
 

	
3/1/2020

	
 

	
132,079.64

	
 

	
48,478.35

	
 

	
180,557.99


	
177

	
 

	
4/1/2020

	
 

	
140,864.22

	
 

	
42,280.53

	
 

	
183,144.75


	
178

	
 

	
5/1/2020

	
 

	
136,046.44

	
 

	
45,679.64

	
 

	
181,726.08


	
179

	
 

	
6/1/2020

	
 

	
140,275.69

	
 

	
42,695.76

	
 

	
182,971.45


	
 


	
$210.0MM A-Note


	
 


	
119

	
 

	
6/1/2015

	
 

	
877,561.46

	
 

	
266,542.26

	
 

	
1,144,103.73


	
120

	
 

	
7/1/2015

	
 

	
848,095.88

	
 

	
297,548.44

	
 

	
1,145,644.31


	
121

	
 

	
8/1/2015

	
 

	
875,030.92

	
 

	
269,205.12

	
 

	
1,144,236.03


	
122

	
 

	
9/1/2015

	
 

	
873,823.25

	
 

	
270,475.93

	
 

	
1,144,299.18


	
123

	
 

	
10/1/2015

	
 

	
844,461.17

	
 

	
301,373.18

	
 

	
1,145,834.35


	
124

	
 

	
11/1/2015

	
 

	
871,257.90

	
 

	
273,175.41

	
 

	
1,144,433.30


	
125

	
 

	
12/1/2015

	
 

	
841,966.85

	
 

	
303,997.91

	
 

	
1,145,964.76


	
126

	
 

	
1/1/2016

	
 

	
868,668.66

	
 

	
275,900.02

	
 

	
1,144,568.68


	
127

	
 

	
2/1/2016

	
 

	
867,430.96

	
 

	
277,202.43

	
 

	
1,144,633.39


	
128

	
 

	
3/1/2016

	
 

	
810,304.35

	
 

	
337,315.86

	
 

	
1,147,620.21


	
129

	
 

	
4/1/2016

	
 

	
864,674.19

	
 

	
280,103.33

	
 

	
1,144,777.53


	
130

	
 

	
5/1/2016

	
 

	
835,565.45

	
 

	
310,734.01

	
 

	
1,146,299.46


	
131

	
 

	
6/1/2016

	
 

	
862,023.66

	
 

	
282,892.45

	
 

	
1,144,916.11


	
132

	
 

	
7/1/2016

	
 

	
832,988.31

	
 

	
313,445.89

	
 

	
1,146,434.20


	
133

	
 

	
8/1/2016

	
 

	
859,348.45

	
 

	
285,707.53

	
 

	
1,145,055.98


	
134

	
 

	
9/1/2016

	
 

	
858,066.75

	
 

	
287,056.24

	
 

	
1,145,122.99


	
135

	
 

	
10/1/2016

	
 

	
829,140.97

	
 

	
317,494.39

	
 

	
1,146,635.36


	
136

	
 

	
11/1/2016

	
 

	
855,354.70

	
 

	
289,910.09

	
 

	
1,145,264.79


	
137

	
 

	
12/1/2016

	
 

	
826,504.01

	
 

	
320,269.22

	
 

	
1,146,773.23


	
138

	
 

	
1/1/2017

	
 

	
852,617.40

	
 

	
292,790.51

	
 

	
1,145,407.91


	
139

	
 

	
2/1/2017

	
 

	
851,303.92

	
 

	
294,172.66

	
 

	
1,145,476.58


	
140

	
 

	
3/1/2017

	
 

	
767,727.70

	
 

	
382,118.60

	
 

	
1,149,846.30


	
141

	
 

	
4/1/2017

	
 

	
848,270.04

	
 

	
297,365.17

	
 

	
1,145,635.21


	
142

	
 

	
5/1/2017

	
 

	
819,615.52

	
 

	
327,517.86

	
 

	
1,147,133.39


	
143

	
 

	
6/1/2017

	
 

	
845,466.77

	
 

	
300,315.00

	
 

	
1,145,781.77


	
144

	
 

	
7/1/2017

	
 

	
816,889.88

	
 

	
330,386.01

	
 

	
1,147,275.89


	
145

	
 

	
8/1/2017

	
 

	
842,637.41

	
 

	
303,292.29

	
 

	
1,145,929.70


	
146

	
 

	
9/1/2017

	
 

	
841,276.82

	
 

	
304,724.02

	
 

	
1,146,000.84


	
147

	
 

	
10/1/2017

	
 

	
812,815.95

	
 

	
334,672.95

	
 

	
1,147,488.90


	
148

	
 

	
11/1/2017

	
 

	
838,408.45

	
 

	
307,742.36

	
 

	
1,146,150.81


	
149

	
 

	
12/1/2017

	
 

	
810,027.00

	
 

	
337,607.72

	
 

	
1,147,634.71


	
150

	
 

	
1/1/2018

	
 

	
835,513.37

	
 

	
310,788.81

	
 

	
1,146,302.18


	
151

	
 

	
2/1/2018

	
 

	
834,119.15

	
 

	
312,255.92

	
 

	
1,146,375.07


	
152

	
 

	
3/1/2018

	
 

	
752,132.71

	
 

	
398,528.97

	
 

	
1,150,661.67


	
153

	
 

	
4/1/2018

	
 

	
830,930.53

	
 

	
315,611.26

	
 

	
1,146,541.79


	
154

	
 

	
5/1/2018

	
 

	
802,756.14

	
 

	
345,258.73

	
 

	
1,148,014.87


	
155

	
 

	
6/1/2018

	
 

	
827,965.82

	
 

	
318,730.97

	
 

	
1,146,696.80


	
156

	
 

	
7/1/2018

	
 

	
799,873.53

	
 

	
348,292.05

	
 

	
1,148,165.58


	
157

	
 

	
8/1/2018

	
 

	
824,973.52

	
 

	
321,879.73

	
 

	
1,146,853.25


	
158

	
 

	
9/1/2018

	
 

	
823,529.55

	
 

	
323,399.20

	
 

	
1,146,928.74


	
159

	
 

	
10/1/2018

	
 

	
795,560.09

	
 

	
352,831.02

	
 

	
1,148,391.11


	
160

	
 

	
11/1/2018

	
 

	
820,495.94

	
 

	
326,591.42

	
 

	
1,147,087.35


	
161

	
 

	
12/1/2018

	
 

	
792,610.48

	
 

	
355,934.85

	
 

	
1,148,545.32


	
162

	
 

	
1/1/2019

	
 

	
817,434.08

	
 

	
329,813.36

	
 

	
1,147,247.44


	
163

	
 

	
2/1/2019

	
 

	
815,954.52

	
 

	
331,370.28

	
 

	
1,147,324.80


	
164

	
 

	
3/1/2019

	
 

	
735,648.49

	
 

	
415,875.05

	
 

	
1,151,523.54


	
165

	
 

	
4/1/2019

	
 

	
812,602.33

	
 

	
334,897.73

	
 

	
1,147,500.07


	
166

	
 

	
5/1/2019

	
 

	
784,935.45

	
 

	
364,011.16

	
 

	
1,148,946.61


	
167

	
 

	
6/1/2019

	
 

	
809,466.98

	
 

	
338,197.01

	
 

	
1,147,663.99


	
168

	
 

	
7/1/2019

	
 

	
781,886.91

	
 

	
367,219.08

	
 

	
1,149,106.00


	
169

	
 

	
8/1/2019

	
 

	
806,302.44

	
 

	
341,527.01

	
 

	
1,147,829.45


	
170

	
 

	
9/1/2019

	
 

	
804,770.33

	
 

	
343,139.22

	
 

	
1,147,909.56


	
171

	
 

	
10/1/2019

	
 

	
777,320.31

	
 

	
372,024.45

	
 

	
1,149,344.76


	
172

	
 

	
11/1/2019

	
 

	
801,562.07

	
 

	
346,515.23

	
 

	
1,148,077.30


	
173

	
 

	
12/1/2019

	
 

	
774,200.88

	
 

	
375,306.97

	
 

	
1,149,507.86


	
174

	
 

	
1/1/2020

	
 

	
798,323.93

	
 

	
349,922.67

	
 

	
1,148,246.60


	
175

	
 

	
2/1/2020

	
 

	
796,754.15

	
 

	
351,574.52

	
 

	
1,148,328.68


	
176

	
 

	
3/1/2020

	
 

	
743,875.23

	
 

	
407,218.18

	
 

	
1,151,093.41


	
177

	
 

	
4/1/2020

	
 

	
793,350.16

	
 

	
355,156.49

	
 

	
1,148,506.65


	
178

	
 

	
5/1/2020

	
 

	
766,216.36

	
 

	
383,708.96

	
 

	
1,149,925.32


	
179

	
 

	
6/1/2020

	
 

	
790,035.57

	
 

	
358,644.38

	
 

	
1,148,679.95





Page 3 of 6


	
 

	
 


	
Confidential Treatment Requested by
 BANA

	
BANA-Soth-00193












SCHEDULE
2.2(b) 


Sotheby’s Monthly
Payments  


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
$25.0MM B-Note


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
180

	
 

	
7/1/2020

	
 

	
135,474.21

	
 

	
46,083.37

	
 

	
181,557.58


	
181

	
 

	
8/1/2020

	
 

	
139,681.68

	
 

	
43,114.85

	
 

	
182,796.53


	
182

	
 

	
9/1/2020

	
 

	
139,393.21

	
 

	
43,318.38

	
 

	
182,711.59


	
183

	
 

	
10/1/2020

	
 

	
134,616.17

	
 

	
46,688.75

	
 

	
181,304.91


	
184

	
 

	
11/1/2020

	
 

	
138,790.99

	
 

	
43,743.27

	
 

	
182,534.25


	
185

	
 

	
12/1/2020

	
 

	
134,030.62

	
 

	
47,101.87

	
 

	
181,132.49


	
186

	
 

	
1/1/2021

	
 

	
138,183.16

	
 

	
44,172.11

	
 

	
182,355.27


	
187

	
 

	
2/1/2021

	
 

	
137,887.61

	
 

	
44,380.63

	
 

	
182,268.24


	
188

	
 

	
3/1/2021

	
 

	
124,275.44

	
 

	
53,984.48

	
 

	
178,259.92


	
189

	
 

	
4/1/2021

	
 

	
137,229.46

	
 

	
44,844.98

	
 

	
182,074.44


	
190

	
 

	
5/1/2021

	
 

	
132,512.33

	
 

	
48,173.07

	
 

	
180,685.41


	
191

	
 

	
6/1/2021

	
 

	
136,607.09

	
 

	
45,284.08

	
 

	
181,891.17


	
192

	
 

	
7/1/2021

	
 

	
131,907.20

	
 

	
48,600.01

	
 

	
180,507.21


	
193

	
 

	
8/1/2021

	
 

	
135,978.93

	
 

	
45,727.27

	
 

	
181,706.20


	
194

	
 

	
9/1/2021

	
 

	
135,672.98

	
 

	
45,943.13

	
 

	
181,616.11


	
195

	
 

	
10/1/2021

	
 

	
130,998.95

	
 

	
49,240.82

	
 

	
180,239.77


	
196

	
 

	
11/1/2021

	
 

	
135,036.12

	
 

	
46,392.46

	
 

	
181,428.57


	
197

	
 

	
12/1/2021

	
 

	
130,379.72

	
 

	
49,677.70

	
 

	
180,057.42


	
198

	
 

	
1/1/2022

	
 

	
134,393.33

	
 

	
46,845.97

	
 

	
181,239.29


	
199

	
 

	
2/1/2022

	
 

	
134,079.89

	
 

	
47,067.11

	
 

	
181,147.00


	
200

	
 

	
3/1/2022

	
 

	
120,819.97

	
 

	
56,422.43

	
 

	
177,242.40


	
201

	
 

	
4/1/2022

	
 

	
133,387.46

	
 

	
47,555.64

	
 

	
180,943.10


	
202

	
 

	
5/1/2022

	
 

	
128,776.72

	
 

	
50,808.68

	
 

	
179,585.39


	
203

	
 

	
6/1/2022

	
 

	
132,729.32

	
 

	
48,019.98

	
 

	
180,749.30


	
204

	
 

	
7/1/2022

	
 

	
128,136.80

	
 

	
51,260.16

	
 

	
179,396.96


	
205

	
 

	
8/1/2022

	
 

	
132,065.05

	
 

	
48,488.64

	
 

	
180,553.70


	
206

	
 

	
9/1/2022

	
 

	
131,740.62

	
 

	
48,717.54

	
 

	
180,458.16


	
207

	
 

	
10/1/2022

	
 

	
127,175.48

	
 

	
51,938.40

	
 

	
179,113.88


	
208

	
 

	
11/1/2022

	
 

	
131,067.15

	
 

	
49,192.70

	
 

	
180,259.85


	
209

	
 

	
12/1/2022

	
 

	
126,520.66

	
 

	
52,400.40

	
 

	
178,921.06


	
210

	
 

	
1/1/2023

	
 

	
130,387.41

	
 

	
49,672.28

	
 

	
180,059.69


	
211

	
 

	
2/1/2023

	
 

	
130,055.06

	
 

	
49,906.76

	
 

	
179,961.82


	
212

	
 

	
3/1/2023

	
 

	
117,167.48

	
 

	
58,999.39

	
 

	
176,166.87


	
213

	
 

	
4/1/2023

	
 

	
129,326.39

	
 

	
50,420.87

	
 

	
179,747.25


	
214

	
 

	
5/1/2023

	
 

	
124,828.09

	
 

	
53,594.57

	
 

	
178,422.66


	
215

	
 

	
6/1/2023

	
 

	
128,630.44

	
 

	
50,911.88

	
 

	
179,542.32


	
216

	
 

	
7/1/2023

	
 

	
124,151.41

	
 

	
54,071.99

	
 

	
178,223.40


	
217

	
 

	
8/1/2023

	
 

	
127,928.01

	
 

	
51,407.47

	
 

	
179,335.48


	
218

	
 

	
9/1/2023

	
 

	
127,584.05

	
 

	
51,650.14

	
 

	
179,234.19


	
219

	
 

	
10/1/2023

	
 

	
123,134.00

	
 

	
54,789.81

	
 

	
177,923.81


	
220

	
 

	
11/1/2023

	
 

	
126,871.88

	
 

	
52,152.61

	
 

	
179,024.48


	
221

	
 

	
12/1/2023

	
 

	
122,441.55

	
 

	
55,278.35

	
 

	
177,719.90


	
222

	
 

	
1/1/2024

	
 

	
126,153.07

	
 

	
52,659.75

	
 

	
178,812.82


	
223

	
 

	
2/1/2024

	
 

	
125,800.74

	
 

	
52,908.33

	
 

	
178,709.07


	
224

	
 

	
3/1/2024

	
 

	
117,353.40

	
 

	
58,868.22

	
 

	
176,221.62


	
225

	
 

	
4/1/2024

	
 

	
125,052.86

	
 

	
53,435.99

	
 

	
178,488.84


	
226

	
 

	
5/1/2024

	
 

	
120,672.90

	
 

	
56,526.20

	
 

	
177,199.10


	
227

	
 

	
6/1/2024

	
 

	
124,317.12

	
 

	
53,955.07

	
 

	
178,272.19


	
228

	
 

	
7/1/2024

	
 

	
119,957.53

	
 

	
57,030.91

	
 

	
176,988.44


	
229

	
 

	
8/1/2024

	
 

	
123,574.53

	
 

	
54,479.00

	
 

	
178,053.53


	
230

	
 

	
9/1/2024

	
 

	
123,210.02

	
 

	
54,736.17

	
 

	
177,946.19


	
231

	
 

	
10/1/2024

	
 

	
118,881.09

	
 

	
57,790.38

	
 

	
176,671.47


	
232

	
 

	
11/1/2024

	
 

	
122,457.12

	
 

	
55,267.36

	
 

	
177,724.49


	
233

	
 

	
12/1/2024

	
 

	
118,149.04

	
 

	
58,306.87

	
 

	
176,455.90


	
234

	
 

	
1/1/2025

	
 

	
121,697.22

	
 

	
55,803.50

	
 

	
177,500.72


	
235

	
 

	
2/1/2025

	
 

	
121,323.85

	
 

	
56,066.93

	
 

	
177,390.78


	
236

	
 

	
3/1/2025

	
 

	
109,244.00

	
 

	
64,589.68

	
 

	
173,833.67


	
237

	
 

	
4/1/2025

	
 

	
120,516.55

	
 

	
56,636.50

	
 

	
177,153.06


	
238

	
 

	
5/1/2025

	
 

	
116,262.20

	
 

	
59,638.09

	
 

	
175,900.30


	
239

	
 

	
6/1/2025

	
 

	
119,738.58

	
 

	
57,185.39

	
 

	
176,923.97


	
240

	
 

	
7/1/2025

	
 

	
115,505.77

	
 

	
60,171.78

	
 

	
175,677.55


	
 


	
$210.0MM A-Note


	
 


	
180

	
 

	
7/1/2020

	
 

	
762,993.55

	
 

	
387,100.27

	
 

	
1,150,093.82


	
181

	
 

	
8/1/2020

	
 

	
786,690.11

	
 

	
362,164.75

	
 

	
1,148,854.87


	
182

	
 

	
9/1/2020

	
 

	
785,065.42

	
 

	
363,874.39

	
 

	
1,148,939.81


	
183

	
 

	
10/1/2020

	
 

	
758,161.02

	
 

	
392,185.47

	
 

	
1,150,346.49


	
184

	
 

	
11/1/2020

	
 

	
781,673.69

	
 

	
367,443.46

	
 

	
1,149,117.15


	
185

	
 

	
12/1/2020

	
 

	
754,863.21

	
 

	
395,655.70

	
 

	
1,150,518.91


	
186

	
 

	
1/1/2021

	
 

	
778,250.38

	
 

	
371,045.75

	
 

	
1,149,296.13


	
187

	
 

	
2/1/2021

	
 

	
776,585.84

	
 

	
372,797.31

	
 

	
1,149,383.16


	
188

	
 

	
3/1/2021

	
 

	
699,921.83

	
 

	
453,469.65

	
 

	
1,153,391.48


	
189

	
 

	
4/1/2021

	
 

	
772,879.16

	
 

	
376,697.80

	
 

	
1,149,576.96


	
190

	
 

	
5/1/2021

	
 

	
746,312.20

	
 

	
404,653.80

	
 

	
1,150,965.99


	
191

	
 

	
6/1/2021

	
 

	
769,373.97

	
 

	
380,386.26

	
 

	
1,149,760.23


	
192

	
 

	
7/1/2021

	
 

	
742,904.07

	
 

	
408,240.12

	
 

	
1,151,144.19


	
193

	
 

	
8/1/2021

	
 

	
765,836.14

	
 

	
384,109.06

	
 

	
1,149,945.20


	
194

	
 

	
9/1/2021

	
 

	
764,113.01

	
 

	
385,922.28

	
 

	
1,150,035.29


	
195

	
 

	
10/1/2021

	
 

	
737,788.78

	
 

	
413,622.86

	
 

	
1,151,411.63


	
196

	
 

	
11/1/2021

	
 

	
760,526.20

	
 

	
389,696.63

	
 

	
1,150,222.83


	
197

	
 

	
12/1/2021

	
 

	
734,301.29

	
 

	
417,292.69

	
 

	
1,151,593.98


	
198

	
 

	
1/1/2022

	
 

	
756,906.00

	
 

	
393,506.11

	
 

	
1,150,412.11


	
199

	
 

	
2/1/2022

	
 

	
755,140.70

	
 

	
395,363.70

	
 

	
1,150,504.40


	
200

	
 

	
3/1/2022

	
 

	
680,460.59

	
 

	
473,948.41

	
 

	
1,154,409.00


	
201

	
 

	
4/1/2022

	
 

	
751,240.92

	
 

	
399,467.38

	
 

	
1,150,708.30


	
202

	
 

	
5/1/2022

	
 

	
725,273.11

	
 

	
426,792.90

	
 

	
1,152,066.01


	
203

	
 

	
6/1/2022

	
 

	
747,534.26

	
 

	
403,367.84

	
 

	
1,150,902.10


	
204

	
 

	
7/1/2022

	
 

	
721,669.09

	
 

	
430,585.35

	
 

	
1,152,254.44


	
205

	
 

	
8/1/2022

	
 

	
743,793.10

	
 

	
407,304.61

	
 

	
1,151,097.70


	
206

	
 

	
9/1/2022

	
 

	
741,965.91

	
 

	
409,227.33

	
 

	
1,151,193.24


	
207

	
 

	
10/1/2022

	
 

	
716,254.92

	
 

	
436,282.59

	
 

	
1,152,537.52


	
208

	
 

	
11/1/2022

	
 

	
738,172.90

	
 

	
413,218.66

	
 

	
1,151,391.55


	
209

	
 

	
12/1/2022

	
 

	
712,566.94

	
 

	
440,163.40

	
 

	
1,152,730.34


	
210

	
 

	
1/1/2023

	
 

	
734,344.57

	
 

	
417,247.14

	
 

	
1,151,591.71


	
211

	
 

	
2/1/2023

	
 

	
732,472.78

	
 

	
419,216.80

	
 

	
1,151,689.58


	
212

	
 

	
3/1/2023

	
 

	
659,889.68

	
 

	
495,594.85

	
 

	
1,155,484.53


	
213

	
 

	
4/1/2023

	
 

	
728,368.88

	
 

	
423,535.27

	
 

	
1,151,904.15


	
214

	
 

	
5/1/2023

	
 

	
703,034.39

	
 

	
450,194.35

	
 

	
1,153,228.74


	
215

	
 

	
6/1/2023

	
 

	
724,449.27

	
 

	
427,659.81

	
 

	
1,152,109.08


	
216

	
 

	
7/1/2023

	
 

	
699,223.32

	
 

	
454,204.68

	
 

	
1,153,428.00


	
217

	
 

	
8/1/2023

	
 

	
720,493.17

	
 

	
431,822.75

	
 

	
1,152,315.92


	
218

	
 

	
9/1/2023

	
 

	
718,555.99

	
 

	
433,861.22

	
 

	
1,152,417.21


	
219

	
 

	
10/1/2023

	
 

	
693,493.22

	
 

	
460,234.37

	
 

	
1,153,727.59


	
220

	
 

	
11/1/2023

	
 

	
714,545.02

	
 

	
438,081.89

	
 

	
1,152,626.92


	
221

	
 

	
12/1/2023

	
 

	
689,593.32

	
 

	
464,338.18

	
 

	
1,153,931.50


	
222

	
 

	
1/1/2024

	
 

	
710,496.71

	
 

	
442,341.87

	
 

	
1,152,838.58


	
223

	
 

	
2/1/2024

	
 

	
708,512.34

	
 

	
444,429.99

	
 

	
1,152,942.33


	
224

	
 

	
3/1/2024

	
 

	
660,936.75

	
 

	
494,493.03

	
 

	
1,155,429.78


	
225

	
 

	
4/1/2024

	
 

	
704,300.27

	
 

	
448,862.28

	
 

	
1,153,162.56


	
226

	
 

	
5/1/2024

	
 

	
679,632.24

	
 

	
474,820.06

	
 

	
1,154,452.30


	
227

	
 

	
6/1/2024

	
 

	
700,156.58

	
 

	
453,222.63

	
 

	
1,153,379.21


	
228

	
 

	
7/1/2024

	
 

	
675,603.28

	
 

	
479,059.67

	
 

	
1,154,662.96


	
229

	
 

	
8/1/2024

	
 

	
695,974.30

	
 

	
457,623.57

	
 

	
1,153,597.87


	
230

	
 

	
9/1/2024

	
 

	
693,921.38

	
 

	
459,783.83

	
 

	
1,153,705.21


	
231

	
 

	
10/1/2024

	
 

	
669,540.73

	
 

	
485,439.20

	
 

	
1,154,979.93


	
232

	
 

	
11/1/2024

	
 

	
689,681.05

	
 

	
464,245.86

	
 

	
1,153,926.91


	
233

	
 

	
12/1/2024

	
 

	
665,417.82

	
 

	
489,777.68

	
 

	
1,155,195.50


	
234

	
 

	
1/1/2025

	
 

	
685,401.24

	
 

	
468,749.44

	
 

	
1,154,150.68


	
235

	
 

	
2/1/2025

	
 

	
683,298.40

	
 

	
470,962.22

	
 

	
1,154,260.62


	
236

	
 

	
3/1/2025

	
 

	
615,264.45

	
 

	
542,553.28

	
 

	
1,157,817.73


	
237

	
 

	
4/1/2025

	
 

	
678,751.71

	
 

	
475,746.63

	
 

	
1,154,498.34


	
238

	
 

	
5/1/2025

	
 

	
654,791.11

	
 

	
500,959.99

	
 

	
1,155,751.10


	
239

	
 

	
6/1/2025

	
 

	
674,370.14

	
 

	
480,357.29

	
 

	
1,154,727.43


	
240

	
 

	
7/1/2025

	
 

	
650,530.87

	
 

	
505,442.98

	
 

	
1,155,973.85





Page 4 of 6


	
 

	
 


	
Confidential Treatment Requested by
 BANA

	
BANA-Soth-00194













SCHEDULE 2.2(b)


Sotheby’s Monthly Payments 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
$25.0MM
 B-Note


	
 


	
241

	
 

	
8/1/2025

	
 

	
118,953.36

	
 

	
57,739.39

	
 

	
176,692.75


	
242

	
 

	
9/1/2025

	
 

	
118,567.04

	
 

	
58,011.95

	
 

	
176,578.99


	
243

	
 

	
10/1/2025

	
 

	
114,366.67

	
 

	
60,975.46

	
 

	
175,342.13


	
244

	
 

	
11/1/2025

	
 

	
117,770.91

	
 

	
58,573.65

	
 

	
176,344.56


	
245

	
 

	
12/1/2025

	
 

	
113,592.59

	
 

	
61,521.60

	
 

	
175,114.19


	
246

	
 

	
1/1/2026

	
 

	
116,967.38

	
 

	
59,140.57

	
 

	
176,107.95


	
247

	
 

	
2/1/2026

	
 

	
116,571.68

	
 

	
59,419.75

	
 

	
175,991.43


	
248

	
 

	
3/1/2026

	
 

	
104,931.45

	
 

	
67,632.32

	
 

	
172,563.78


	
249

	
 

	
4/1/2026

	
 

	
115,721.59

	
 

	
60,019.51

	
 

	
175,741.10


	
250

	
 

	
5/1/2026

	
 

	
111,600.01

	
 

	
62,927.43

	
 

	
174,527.44


	
251

	
 

	
6/1/2026

	
 

	
114,898.97

	
 

	
60,599.90

	
 

	
175,498.87


	
252

	
 

	
7/1/2026

	
 

	
110,800.17

	
 

	
63,491.74

	
 

	
174,291.91


	
253

	
 

	
8/1/2026

	
 

	
114,068.70

	
 

	
61,185.69

	
 

	
175,254.38


	
254

	
 

	
9/1/2026

	
 

	
113,659.31

	
 

	
61,474.52

	
 

	
175,133.83


	
255

	
 

	
10/1/2026

	
 

	
109,594.84

	
 

	
64,342.15

	
 

	
173,936.98


	
256

	
 

	
11/1/2026

	
 

	
112,817.50

	
 

	
62,068.45

	
 

	
174,885.95


	
257

	
 

	
12/1/2026

	
 

	
108,776.33

	
 

	
64,919.63

	
 

	
173,695.96


	
258

	
 

	
1/1/2027

	
 

	
111,967.84

	
 

	
62,667.91

	
 

	
174,635.75


	
259

	
 

	
2/1/2027

	
 

	
111,548.54

	
 

	
62,963.74

	
 

	
174,512.28


	
260

	
 

	
3/1/2027

	
 

	
100,373.01

	
 

	
70,848.46

	
 

	
171,221.47


	
261

	
 

	
4/1/2027

	
 

	
110,653.22

	
 

	
63,595.42

	
 

	
174,248.64


	
262

	
 

	
5/1/2027

	
 

	
106,671.98

	
 

	
66,404.32

	
 

	
173,076.30


	
263

	
 

	
6/1/2027

	
 

	
109,783.42

	
 

	
64,209.10

	
 

	
173,992.51


	
264

	
 

	
7/1/2027

	
 

	
105,826.26

	
 

	
67,001.00

	
 

	
172,827.27


	
265

	
 

	
8/1/2027

	
 

	
108,905.51

	
 

	
64,828.49

	
 

	
173,734.00


	
266

	
 

	
9/1/2027

	
 

	
108,471.76

	
 

	
65,134.52

	
 

	
173,606.28


	
267

	
 

	
10/1/2027

	
 

	
104,550.92

	
 

	
67,900.80

	
 

	
172,451.72


	
268

	
 

	
11/1/2027

	
 

	
107,581.64

	
 

	
65,762.53

	
 

	
173,344.17


	
269

	
 

	
12/1/2027

	
 

	
103,685.45

	
 

	
68,511.42

	
 

	
172,196.87


	
270

	
 

	
1/1/2028

	
 

	
106,683.23

	
 

	
66,396.38

	
 

	
173,079.62


	
271

	
 

	
2/1/2028

	
 

	
106,238.99

	
 

	
66,709.81

	
 

	
172,948.80


	
272

	
 

	
3/1/2028

	
 

	
98,967.31

	
 

	
71,840.23

	
 

	
170,807.54


	
273

	
 

	
4/1/2028

	
 

	
105,311.97

	
 

	
67,363.85

	
 

	
172,675.83


	
274

	
 

	
5/1/2028

	
 

	
101,478.63

	
 

	
70,068.41

	
 

	
171,547.04


	
275

	
 

	
6/1/2028

	
 

	
104,392.44

	
 

	
68,012.62

	
 

	
172,405.05


	
276

	
 

	
7/1/2028

	
 

	
100,584.56

	
 

	
70,699.21

	
 

	
171,283.76


	
277

	
 

	
8/1/2028

	
 

	
103,464.34

	
 

	
68,667.42

	
 

	
172,131.76


	
278

	
 

	
9/1/2028

	
 

	
103,004.90

	
 

	
68,991.58

	
 

	
171,996.47


	
279

	
 

	
10/1/2028

	
 

	
99,235.44

	
 

	
71,651.06

	
 

	
170,886.49


	
280

	
 

	
11/1/2028

	
 

	
102,063.88

	
 

	
69,655.50

	
 

	
171,719.37


	
281

	
 

	
12/1/2028

	
 

	
98,320.48

	
 

	
72,296.59

	
 

	
170,617.07


	
282

	
 

	
1/1/2029

	
 

	
101,114.10

	
 

	
70,325.60

	
 

	
171,439.70


	
283

	
 

	
2/1/2029

	
 

	
100,643.56

	
 

	
70,657.58

	
 

	
171,301.14


	
284

	
 

	
3/1/2029

	
 

	
90,476.86

	
 

	
77,830.53

	
 

	
168,307.39


	
285

	
 

	
4/1/2029

	
 

	
99,650.05

	
 

	
71,358.53

	
 

	
171,008.59


	
286

	
 

	
5/1/2029

	
 

	
95,973.49

	
 

	
73,952.47

	
 

	
169,925.96


	
287

	
 

	
6/1/2029

	
 

	
98,677.80

	
 

	
72,044.49

	
 

	
170,722.29


	
288

	
 

	
7/1/2029

	
 

	
95,028.16

	
 

	
74,619.43

	
 

	
169,647.59


	
289

	
 

	
8/1/2029

	
 

	
97,696.50

	
 

	
72,736.83

	
 

	
170,433.33


	
290

	
 

	
9/1/2029

	
 

	
97,209.83

	
 

	
73,080.19

	
 

	
170,290.02


	
291

	
 

	
10/1/2029

	
 

	
93,600.83

	
 

	
75,626.46

	
 

	
169,227.30


	
292

	
 

	
11/1/2029

	
 

	
96,214.86

	
 

	
73,782.18

	
 

	
169,997.04


	
293

	
 

	
12/1/2029

	
 

	
92,633.41

	
 

	
76,309.01

	
 

	
168,942.42


	
294

	
 

	
1/1/2030

	
 

	
95,210.62

	
 

	
74,490.70

	
 

	
169,701.32


	
295

	
 

	
2/1/2030

	
 

	
94,712.22

	
 

	
74,842.34

	
 

	
169,554.56


	
296

	
 

	
3/1/2030

	
 

	
85,094.22

	
 

	
81,628.17

	
 

	
166,722.39


	
297

	
 

	
4/1/2030

	
 

	
93,665.30

	
 

	
75,580.98

	
 

	
169,246.28


	
298

	
 

	
5/1/2030

	
 

	
90,154.45

	
 

	
78,058.00

	
 

	
168,212.45


	
299

	
 

	
6/1/2030

	
 

	
92,637.33

	
 

	
76,306.25

	
 

	
168,943.58


	
300

	
 

	
7/1/2030

	
 

	
89,154.94

	
 

	
78,763.19

	
 

	
167,918.13


	
301

	
 

	
8/1/2030

	
 

	
91,599.78

	
 

	
77,038.27

	
 

	
168,638.05








	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
$210.0MM
 A-Note


	
 


	
241

	
 

	
8/1/2025

	
 

	
669,947.78

	
 

	
485,010.86

	
 

	
1,154,958.65


	
242

	
 

	
9/1/2025

	
 

	
667,772.00

	
 

	
487,300.41

	
 

	
1,155,072.41


	
243

	
 

	
10/1/2025

	
 

	
644,115.42

	
 

	
512,193.85

	
 

	
1,156,309.27


	
244

	
 

	
11/1/2025

	
 

	
663,288.20

	
 

	
492,018.64

	
 

	
1,155,306.84


	
245

	
 

	
12/1/2025

	
 

	
639,755.79

	
 

	
516,781.43

	
 

	
1,156,537.21


	
246

	
 

	
1/1/2026

	
 

	
658,762.67

	
 

	
496,780.79

	
 

	
1,155,543.45


	
247

	
 

	
2/1/2026

	
 

	
656,534.08

	
 

	
499,125.90

	
 

	
1,155,659.97


	
248

	
 

	
3/1/2026

	
 

	
590,976.10

	
 

	
568,111.52

	
 

	
1,159,087.62


	
249

	
 

	
4/1/2026

	
 

	
651,746.38

	
 

	
504,163.91

	
 

	
1,155,910.30


	
250

	
 

	
5/1/2026

	
 

	
628,533.56

	
 

	
528,590.40

	
 

	
1,157,123.96


	
251

	
 

	
6/1/2026

	
 

	
647,113.39

	
 

	
509,039.14

	
 

	
1,156,152.53


	
252

	
 

	
7/1/2026

	
 

	
624,028.84

	
 

	
533,330.64

	
 

	
1,157,359.49


	
253

	
 

	
8/1/2026

	
 

	
642,437.25

	
 

	
513,959.76

	
 

	
1,156,397.02


	
254

	
 

	
9/1/2026

	
 

	
640,131.60

	
 

	
516,385.97

	
 

	
1,156,517.57


	
255

	
 

	
10/1/2026

	
 

	
617,240.38

	
 

	
540,474.04

	
 

	
1,157,714.42


	
256

	
 

	
11/1/2026

	
 

	
635,390.46

	
 

	
521,374.99

	
 

	
1,156,765.45


	
257

	
 

	
12/1/2026

	
 

	
612,630.52

	
 

	
545,324.92

	
 

	
1,157,955.44


	
258

	
 

	
1/1/2027

	
 

	
630,605.18

	
 

	
526,410.47

	
 

	
1,157,015.65


	
259

	
 

	
2/1/2027

	
 

	
628,243.67

	
 

	
528,895.45

	
 

	
1,157,139.12


	
260

	
 

	
3/1/2027

	
 

	
565,302.85

	
 

	
595,127.08

	
 

	
1,160,429.93


	
261

	
 

	
4/1/2027

	
 

	
623,201.24

	
 

	
534,201.52

	
 

	
1,157,402.76


	
262

	
 

	
5/1/2027

	
 

	
600,778.81

	
 

	
557,796.28

	
 

	
1,158,575.10


	
263

	
 

	
6/1/2027

	
 

	
618,302.47

	
 

	
539,356.42

	
 

	
1,157,658.89


	
264

	
 

	
7/1/2027

	
 

	
596,015.69

	
 

	
562,808.44

	
 

	
1,158,824.13


	
265

	
 

	
8/1/2027

	
 

	
613,358.09

	
 

	
544,559.31

	
 

	
1,157,917.40


	
266

	
 

	
9/1/2027

	
 

	
610,915.16

	
 

	
547,129.96

	
 

	
1,158,045.12


	
267

	
 

	
10/1/2027

	
 

	
588,832.94

	
 

	
570,366.74

	
 

	
1,159,199.68


	
268

	
 

	
11/1/2027

	
 

	
605,902.00

	
 

	
552,405.23

	
 

	
1,158,307.23


	
269

	
 

	
12/1/2027

	
 

	
583,958.59

	
 

	
575,495.93

	
 

	
1,159,454.53


	
270

	
 

	
1/1/2028

	
 

	
600,842.17

	
 

	
557,729.61

	
 

	
1,158,571.78


	
271

	
 

	
2/1/2028

	
 

	
598,340.16

	
 

	
560,362.44

	
 

	
1,158,702.60


	
272

	
 

	
3/1/2028

	
 

	
557,385.93

	
 

	
603,457.93

	
 

	
1,160,843.86


	
273

	
 

	
4/1/2028

	
 

	
593,119.19

	
 

	
565,856.38

	
 

	
1,158,975.57


	
274

	
 

	
5/1/2028

	
 

	
571,529.73

	
 

	
588,574.63

	
 

	
1,160,104.36


	
275

	
 

	
6/1/2028

	
 

	
587,940.34

	
 

	
571,306.00

	
 

	
1,159,246.35


	
276

	
 

	
7/1/2028

	
 

	
566,494.29

	
 

	
593,873.35

	
 

	
1,160,367.64


	
277

	
 

	
8/1/2028

	
 

	
582,713.28

	
 

	
576,806.36

	
 

	
1,159,519.64


	
278

	
 

	
9/1/2028

	
 

	
580,125.69

	
 

	
579,529.24

	
 

	
1,159,654.93


	
279

	
 

	
10/1/2028

	
 

	
558,896.02

	
 

	
601,868.89

	
 

	
1,160,764.91


	
280

	
 

	
11/1/2028

	
 

	
574,825.87

	
 

	
585,106.16

	
 

	
1,159,932.03


	
281

	
 

	
12/1/2028

	
 

	
553,742.95

	
 

	
607,291.38

	
 

	
1,161,034.33


	
282

	
 

	
1/1/2029

	
 

	
569,476.70

	
 

	
590,735.00

	
 

	
1,160,211.70


	
283

	
 

	
2/1/2029

	
 

	
566,826.63

	
 

	
593,523.63

	
 

	
1,160,350.26


	
284

	
 

	
3/1/2029

	
 

	
509,567.52

	
 

	
653,776.49

	
 

	
1,163,344.01


	
285

	
 

	
4/1/2029

	
 

	
561,231.16

	
 

	
599,411.65

	
 

	
1,160,642.81


	
286

	
 

	
5/1/2029

	
 

	
540,524.68

	
 

	
621,200.76

	
 

	
1,161,725.44


	
287

	
 

	
6/1/2029

	
 

	
555,755.42

	
 

	
605,173.69

	
 

	
1,160,929.11


	
288

	
 

	
7/1/2029

	
 

	
535,200.56

	
 

	
626,803.25

	
 

	
1,162,003.81


	
289

	
 

	
8/1/2029

	
 

	
550,228.70

	
 

	
610,989.37

	
 

	
1,161,218.07


	
290

	
 

	
9/1/2029

	
 

	
547,487.76

	
 

	
613,873.62

	
 

	
1,161,361.38


	
291

	
 

	
10/1/2029

	
 

	
527,161.83

	
 

	
635,262.28

	
 

	
1,162,424.10


	
292

	
 

	
11/1/2029

	
 

	
541,884.06

	
 

	
619,770.30

	
 

	
1,161,654.36


	
293

	
 

	
12/1/2029

	
 

	
521,713.29

	
 

	
640,995.69

	
 

	
1,162,708.98


	
294

	
 

	
1/1/2030

	
 

	
536,228.19

	
 

	
625,721.89

	
 

	
1,161,950.08


	
295

	
 

	
2/1/2030

	
 

	
533,421.16

	
 

	
628,675.68

	
 

	
1,162,096.84


	
296

	
 

	
3/1/2030

	
 

	
479,252.41

	
 

	
685,676.60

	
 

	
1,164,929.01


	
297

	
 

	
4/1/2030

	
 

	
527,524.90

	
 

	
634,880.22

	
 

	
1,162,405.12


	
298

	
 

	
5/1/2030

	
 

	
507,751.73

	
 

	
655,687.22

	
 

	
1,163,438.95


	
299

	
 

	
6/1/2030

	
 

	
521,735.33

	
 

	
640,972.49

	
 

	
1,162,707.82


	
300

	
 

	
7/1/2030

	
 

	
502,122.48

	
 

	
661,610.79

	
 

	
1,163,733.27


	
301

	
 

	
8/1/2030

	
 

	
515,891.87

	
 

	
647,121.48

	
 

	
1,163,013.35





Page 5 of 6


	
 

	
 


	
Confidential Treatment
 Requested by BANA

	
BANA-Soth-00195












SCHEDULE 2.2(b)


Sotheby’s Monthly Payments 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
$25.0MM
 B-Note


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
302

	
 

	
9/1/2030

	
 

	
91,084.33

	
 

	
77,401.94

	
 

	
168,486.27


	
303

	
 

	
10/1/2030

	
 

	
87,644.95

	
 

	
79,828.54

	
 

	
167,473.49


	
304

	
 

	
11/1/2030

	
 

	
90,032.33

	
 

	
78,144.16

	
 

	
168,176.49


	
305

	
 

	
12/1/2030

	
 

	
86,622.08

	
 

	
80,550.21

	
 

	
167,172.29


	
306

	
 

	
1/1/2031

	
 

	
88,970.53

	
 

	
78,893.30

	
 

	
167,863.83


	
307

	
 

	
2/1/2031

	
 

	
88,442.67

	
 

	
79,265.72

	
 

	
167,708.39


	
308

	
 

	
3/1/2031

	
 

	
79,404.67

	
 

	
85,642.34

	
 

	
165,047.01


	
309

	
 

	
4/1/2031

	
 

	
87,339.30

	
 

	
80,044.19

	
 

	
167,383.49


	
310

	
 

	
5/1/2031

	
 

	
84,003.62

	
 

	
82,397.63

	
 

	
166,401.24


	
311

	
 

	
6/1/2031

	
 

	
86,252.43

	
 

	
80,811.01

	
 

	
167,063.44


	
312

	
 

	
7/1/2031

	
 

	
82,946.84

	
 

	
83,143.22

	
 

	
166,090.06


	
313

	
 

	
8/1/2031

	
 

	
85,155.44

	
 

	
81,584.98

	
 

	
166,740.41


	
314

	
 

	
9/1/2031

	
 

	
84,609.57

	
 

	
81,970.11

	
 

	
166,579.67


	
315

	
 

	
10/1/2031

	
 

	
81,349.47

	
 

	
84,270.22

	
 

	
165,619.69


	
316

	
 

	
11/1/2031

	
 

	
83,497.28

	
 

	
82,754.86

	
 

	
166,252.14


	
317

	
 

	
12/1/2031

	
 

	
80,267.98

	
 

	
85,033.24

	
 

	
165,301.23


	
318

	
 

	
1/1/2032

	
 

	
82,374.64

	
 

	
83,546.93

	
 

	
165,921.56


	
319

	
 

	
2/1/2032

	
 

	
81,815.64

	
 

	
83,941.32

	
 

	
165,756.96


	
320

	
 

	
3/1/2032

	
 

	
76,011.81

	
 

	
88,036.12

	
 

	
164,047.93


	
321

	
 

	
4/1/2032

	
 

	
80,664.97

	
 

	
84,753.16

	
 

	
165,418.12


	
322

	
 

	
5/1/2032

	
 

	
77,514.09

	
 

	
86,976.21

	
 

	
164,490.30


	
323

	
 

	
6/1/2032

	
 

	
79,515.95

	
 

	
85,563.83

	
 

	
165,079.78


	
324

	
 

	
7/1/2032

	
 

	
76,396.90

	
 

	
87,764.43

	
 

	
164,161.32


	
325

	
 

	
8/1/2032

	
 

	
78,356.24

	
 

	
86,382.04

	
 

	
164,738.28


	
326

	
 

	
9/1/2032

	
 

	
77,778.27

	
 

	
86,789.82

	
 

	
164,568.09


	
327

	
 

	
10/1/2032

	
 

	
74,707.33

	
 

	
88,956.47

	
 

	
163,663.80


	
328

	
 

	
11/1/2032

	
 

	
76,602.39

	
 

	
87,619.45

	
 

	
164,221.83


	
329

	
 

	
12/1/2032

	
 

	
73,564.01

	
 

	
89,763.13

	
 

	
163,327.13


	
330

	
 

	
1/1/2033

	
 

	
75,415.55

	
 

	
88,456.80

	
 

	
163,872.35


	
331

	
 

	
2/1/2033

	
 

	
74,823.70

	
 

	
88,874.37

	
 

	
163,698.07


	
332

	
 

	
3/1/2033

	
 

	
67,045.60

	
 

	
94,362.09

	
 

	
161,407.68


	
333

	
 

	
4/1/2033

	
 

	
73,597.69

	
 

	
89,739.36

	
 

	
163,337.05


	
334

	
 

	
5/1/2033

	
 

	
70,642.51

	
 

	
91,824.34

	
 

	
162,466.85


	
335

	
 

	
6/1/2033

	
 

	
72,382.88

	
 

	
90,596.45

	
 

	
162,979.33


	
336

	
 

	
7/1/2033

	
 

	
69,461.34

	
 

	
92,657.70

	
 

	
162,119.04


	
337

	
 

	
8/1/2033

	
 

	
71,156.76

	
 

	
91,461.52

	
 

	
162,618.28


	
338

	
 

	
9/1/2033

	
 

	
70,544.80

	
 

	
91,893.28

	
 

	
162,438.08


	
339

	
 

	
10/1/2033

	
 

	
67,674.16

	
 

	
93,918.62

	
 

	
161,592.77


	
340

	
 

	
11/1/2033

	
 

	
69,301.57

	
 

	
92,770.42

	
 

	
162,071.99


	
341

	
 

	
12/1/2033

	
 

	
66,465.35

	
 

	
94,771.47

	
 

	
161,236.82


	
342

	
 

	
1/1/2034

	
 

	
68,046.76

	
 

	
93,655.73

	
 

	
161,702.49


	
343

	
 

	
2/1/2034

	
 

	
67,420.12

	
 

	
94,097.85

	
 

	
161,517.97


	
344

	
 

	
3/1/2034

	
 

	
60,326.93

	
 

	
99,102.34

	
 

	
159,429.27


	
345

	
 

	
4/1/2034

	
 

	
66,127.45

	
 

	
95,009.87

	
 

	
161,137.32


	
346

	
 

	
5/1/2034

	
 

	
63,379.12

	
 

	
96,948.91

	
 

	
160,328.03


	
347

	
 

	
6/1/2034

	
 

	
64,843.09

	
 

	
95,916.03

	
 

	
160,759.12


	
348

	
 

	
7/1/2034

	
 

	
62,130.32

	
 

	
97,829.98

	
 

	
159,960.30


	
349

	
 

	
8/1/2034

	
 

	
63,546.77

	
 

	
96,830.63

	
 

	
160,377.40


	
350

	
 

	
9/1/2034

	
 

	
62,898.89

	
 

	
97,287.73

	
 

	
160,186.62


	
351

	
 

	
10/1/2034

	
 

	
60,239.95

	
 

	
99,163.70

	
 

	
159,403.65


	
352

	
 

	
11/1/2034

	
 

	
61,584.46

	
 

	
98,215.10

	
 

	
159,799.57


	
353

	
 

	
12/1/2034

	
 

	
58,961.93

	
 

	
100,065.39

	
 

	
159,027.32


	
354

	
 

	
1/1/2035

	
 

	
60,257.80

	
 

	
99,151.11

	
 

	
159,408.91


	
355

	
 

	
2/1/2035

	
 

	
59,594.40

	
 

	
99,619.16

	
 

	
159,213.56


	
356

	
 

	
3/1/2035

	
 

	
53,225.17

	
 

	
104,112.87

	
 

	
157,338.04


	
357

	
 

	
4/1/2035

	
 

	
58,231.26

	
 

	
100,580.90

	
 

	
158,812.16


	
358

	
 

	
5/1/2035

	
 

	
55,701.57

	
 

	
102,365.68

	
 

	
158,067.26


	
359

	
 

	
6/1/2035

	
 

	
56,873.38

	
 

	
101,538.93

	
 

	
158,412.31


	
360

	
 

	
7/1/2035

	
 

	
54,381.29

	
 

	
8,398,654.81

	
 

	
8,453,036.10








	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
$210.0MM
 A-Note


	
 


	
302

	
 

	
9/1/2030

	
 

	
512,988.84

	
 

	
650,176.29

	
 

	
1,163,165.13


	
303

	
 

	
10/1/2030

	
 

	
493,618.17

	
 

	
670,559.74

	
 

	
1,164,177.91


	
304

	
 

	
11/1/2030

	
 

	
507,063.94

	
 

	
656,410.97

	
 

	
1,163,474.91


	
305

	
 

	
12/1/2030

	
 

	
487,857.33

	
 

	
676,621.78

	
 

	
1,164,479.11


	
306

	
 

	
1/1/2031

	
 

	
501,083.87

	
 

	
662,703.70

	
 

	
1,163,787.57


	
307

	
 

	
2/1/2031

	
 

	
498,110.94

	
 

	
665,832.07

	
 

	
1,163,943.01


	
308

	
 

	
3/1/2031

	
 

	
447,208.75

	
 

	
719,395.63

	
 

	
1,166,604.39


	
309

	
 

	
4/1/2031

	
 

	
491,896.73

	
 

	
672,371.19

	
 

	
1,164,267.91


	
310

	
 

	
5/1/2031

	
 

	
473,110.09

	
 

	
692,140.07

	
 

	
1,165,250.16


	
311

	
 

	
6/1/2031

	
 

	
485,775.45

	
 

	
678,812.51

	
 

	
1,164,587.96


	
312

	
 

	
7/1/2031

	
 

	
467,158.31

	
 

	
698,403.03

	
 

	
1,165,561.34


	
313

	
 

	
8/1/2031

	
 

	
479,597.17

	
 

	
685,313.81

	
 

	
1,164,910.99


	
314

	
 

	
9/1/2031

	
 

	
476,522.81

	
 

	
688,548.91

	
 

	
1,165,071.73


	
315

	
 

	
10/1/2031

	
 

	
458,161.88

	
 

	
707,869.84

	
 

	
1,166,031.71


	
316

	
 

	
11/1/2031

	
 

	
470,258.39

	
 

	
695,140.86

	
 

	
1,165,399.26


	
317

	
 

	
12/1/2031

	
 

	
452,070.92

	
 

	
714,279.26

	
 

	
1,166,350.17


	
318

	
 

	
1/1/2032

	
 

	
463,935.65

	
 

	
701,794.19

	
 

	
1,165,729.84


	
319

	
 

	
2/1/2032

	
 

	
460,787.36

	
 

	
705,107.08

	
 

	
1,165,894.44


	
320

	
 

	
3/1/2032

	
 

	
428,100.06

	
 

	
739,503.41

	
 

	
1,167,603.47


	
321

	
 

	
4/1/2032

	
 

	
454,306.75

	
 

	
711,926.53

	
 

	
1,166,233.28


	
322

	
 

	
5/1/2032

	
 

	
436,560.97

	
 

	
730,600.13

	
 

	
1,167,161.10


	
323

	
 

	
6/1/2032

	
 

	
447,835.49

	
 

	
718,736.14

	
 

	
1,166,571.62


	
324

	
 

	
7/1/2032

	
 

	
430,268.89

	
 

	
737,221.18

	
 

	
1,167,490.08


	
325

	
 

	
8/1/2032

	
 

	
441,303.97

	
 

	
725,609.14

	
 

	
1,166,913.12


	
326

	
 

	
9/1/2032

	
 

	
438,048.85

	
 

	
729,034.46

	
 

	
1,167,083.31


	
327

	
 

	
10/1/2032

	
 

	
420,753.24

	
 

	
747,234.35

	
 

	
1,167,987.60


	
328

	
 

	
11/1/2032

	
 

	
431,426.21

	
 

	
736,003.35

	
 

	
1,167,429.57


	
329

	
 

	
12/1/2032

	
 

	
414,313.99

	
 

	
754,010.28

	
 

	
1,168,324.27


	
330

	
 

	
1/1/2033

	
 

	
424,741.92

	
 

	
743,037.13

	
 

	
1,167,779.05


	
331

	
 

	
2/1/2033

	
 

	
421,408.61

	
 

	
746,544.72

	
 

	
1,167,953.33


	
332

	
 

	
3/1/2033

	
 

	
377,602.19

	
 

	
792,641.53

	
 

	
1,170,243.72


	
333

	
 

	
4/1/2033

	
 

	
414,503.73

	
 

	
753,810.62

	
 

	
1,168,314.35


	
334

	
 

	
5/1/2033

	
 

	
397,860.09

	
 

	
771,324.46

	
 

	
1,169,184.55


	
335

	
 

	
6/1/2033

	
 

	
407,661.88

	
 

	
761,010.19

	
 

	
1,168,672.07


	
336

	
 

	
7/1/2033

	
 

	
391,207.69

	
 

	
778,324.68

	
 

	
1,169,532.36


	
337

	
 

	
8/1/2033

	
 

	
400,756.33

	
 

	
768,276.79

	
 

	
1,169,033.12


	
338

	
 

	
9/1/2033

	
 

	
397,309.79

	
 

	
771,903.52

	
 

	
1,169,213.32


	
339

	
 

	
10/1/2033

	
 

	
381,142.25

	
 

	
788,916.38

	
 

	
1,170,058.63


	
340

	
 

	
11/1/2033

	
 

	
390,307.86

	
 

	
779,271.55

	
 

	
1,169,579.41


	
341

	
 

	
12/1/2033

	
 

	
374,334.19

	
 

	
796,080.39

	
 

	
1,170,414.58


	
342

	
 

	
1/1/2034

	
 

	
383,240.74

	
 

	
786,708.17

	
 

	
1,169,948.91


	
343

	
 

	
2/1/2034

	
 

	
379,711.52

	
 

	
790,421.92

	
 

	
1,170,133.43


	
344

	
 

	
3/1/2034

	
 

	
339,762.51

	
 

	
832,459.63

	
 

	
1,172,222.13


	
345

	
 

	
4/1/2034

	
 

	
372,431.17

	
 

	
798,082.91

	
 

	
1,170,514.08


	
346

	
 

	
5/1/2034

	
 

	
356,952.50

	
 

	
814,370.86

	
 

	
1,171,323.37


	
347

	
 

	
6/1/2034

	
 

	
365,197.60

	
 

	
805,694.68

	
 

	
1,170,892.28


	
348

	
 

	
7/1/2034

	
 

	
349,919.23

	
 

	
821,771.86

	
 

	
1,171,691.10


	
349

	
 

	
8/1/2034

	
 

	
357,896.69

	
 

	
813,377.31

	
 

	
1,171,274.00


	
350

	
 

	
9/1/2034

	
 

	
354,247.83

	
 

	
817,216.95

	
 

	
1,171,464.78


	
351

	
 

	
10/1/2034

	
 

	
339,272.66

	
 

	
832,975.09

	
 

	
1,172,247.75


	
352

	
 

	
11/1/2034

	
 

	
346,844.97

	
 

	
825,006.86

	
 

	
1,171,851.83


	
353

	
 

	
12/1/2034

	
 

	
332,074.78

	
 

	
840,549.30

	
 

	
1,172,624.08


	
354

	
 

	
1/1/2035

	
 

	
339,373.18

	
 

	
832,869.31

	
 

	
1,172,242.49


	
355

	
 

	
2/1/2035

	
 

	
335,636.88

	
 

	
836,800.96

	
 

	
1,172,437.84


	
356

	
 

	
3/1/2035

	
 

	
299,765.24

	
 

	
874,548.13

	
 

	
1,174,313.36


	
357

	
 

	
4/1/2035

	
 

	
327,959.66

	
 

	
844,879.57

	
 

	
1,172,839.24


	
358

	
 

	
5/1/2035

	
 

	
313,712.40

	
 

	
859,871.74

	
 

	
1,173,584.14


	
359

	
 

	
6/1/2035

	
 

	
320,312.05

	
 

	
852,927.04

	
 

	
1,173,239.09


	
360

	
 

	
7/1/2035

	
 

	
306,276.54

	
 

	
70,548,700.42

	
 

	
70,854,976.96





Page 6 of 6


	
 

	
 


	
Confidential Treatment Requested
 by BANA

	
BANA-Soth-00196












EXHIBIT A


Annual Budget


(on file with Lender) 


	
 

	
 


	
Confidential Treatment Requested
 by BANA

	
BANA-Soth-00197












EXHIBIT B


Organizational Chart 


(attached hereto) 


	
 

	
 


	
Confidential Treatment Requested
 by BANA

	
BANA-Soth-00198












	
 

	
 


	
1334 York
 Avenue

 Organization
 Chart

 Post SochsenFonds Buyout

	
 








	
 

	
 


	
Confidential Treatment Requested
 by BANA

	
BANA-Soth-00199












EXHIBIT C


Form of Tenant Direction Letter


[BORROWER LETTERHEAD]


_________ __, 20__


[TENANTS UNDER LEASES]


	
 

	
 


	
Re:

	
Lease dated ____________
 between ________________,


	
 

	
as Landlord, and
 _________________, as Tenant,


	
 

	
concerning premises known
 as ________________





Ladies and Gentlemen:


          This
letter shall constitute notice to you that the undersigned has granted a
security interest in the captioned lease and all rents, additional rent and all
other monetary obligations to landlord thereunder (collectively, “Rent”) in
favor of Bank of America, N.A., as lender (“Lender”), to secure certain of the
undersigned’s obligations to Lender. The undersigned hereby irrevocably
instructs and authorizes you to disregard any and all previous notices sent to
you in connection with Rent and hereafter to deliver all Rent to the following
address:


_________________________


_________________________


_________________________


          The
instructions set forth herein are irrevocable and are not subject to
modification in any manner, except that Lender, or any successor lender so
identified by Lender, may by written notice to you rescind the instructions
contained herein.


	
 

	
 


	
 

	
Sincerely,


	
 

	
 


	
 

	
[BORROWER]







	
 

	
 


	
Confidential
 Treatment Requested by BANA

	
BANA-Soth-00200












ACKNOWLEDGMENT AND AGREEMENT


The undersigned acknowledges
notice of the security interest of Lender and hereby confirms that the
undersigned has received no notice of any other pledge or assignment of the
Rent and will honor the above instructions.


[Tenant]


	
 

	
 

	
 


	
By:

	
 


	
 

	


	
 


	
 

	
Name:


	
 

	
Its:


	
 

	
 


	
Dated as of: ______________ __, 20__








	
 

	
 


	
Confidential Treatment Requested by BANA

	
BANA-Soth-00201