Exhibit 10.3


 


EXECUTION COPY


 


MASTER CREDIT FACILITY AGREEMENT


 


BY AND BETWEEN


 


BORROWERS SIGNATORY HERETO


 


IDOT GUARANTORS SIGNATORY HERETO


 


AND


 


LEHMAN BROTHERS HOLDINGS INC.,


 


BANK OF AMERICA, N.A., and


 


BARCLAYS CAPITAL REAL ESTATE INC.


 


DATED AS OF


 


October 5, 2007


 

















 


TABLE OF CONTENTS


 


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1
  THE COMMITMENT TO MAKE LOANS

  	
   

  	
  3

  
	
  Section 1.01.

  	
   

  	
  The
  Commitment to Make Loans

  	
   

  	
  3

  
	
  Section 1.02.

  	
   

  	
  Maturity
  Date of Loans; Amortization; Prepayment

  	
   

  	
  4

  
	
  Section 1.03.

  	
   

  	
  Interest on
  Loans

  	
   

  	
  4

  
	
  Section 1.04.

  	
   

  	
  Notes

  	
   

  	
  5

  
	
  Section 1.05.

  	
   

  	
  Extension of
  Variable Loans

  	
   

  	
  5

  
	
  Section 1.06.

  	
   

  	
  Interest
  Rate Hedge

  	
   

  	
  6

  
	
  ARTICLE 2
  THE LOANS

  	
   

  	
  7

  
	
  Section 2.01.

  	
   

  	
  Rate Setting
  for a Loan

  	
   

  	
  7

  
	
  Section 2.02.

  	
   

  	
  Breakage and
  Other Costs

  	
   

  	
  7

  
	
  Section 2.03.

  	
   

  	
  Loans

  	
   

  	
  8

  
	
  Section 2.04.

  	
   

  	
  Determination
  of Allocable Loan Amount and Valuations

  	
   

  	
  8

  
	
  Section 2.05.

  	
   

  	
  Additional
  Fixed Loans Made on Decreases in Loan to Value Ratio and

  	
   

  	
   

  
	
   

  	
   

  	
  Increases in
  Debt Service Coverage Ratio

  	
   

  	
  10

  
	
  Section 2.06.

  	
   

  	
  Maximum
  Amount of All Loans

  	
   

  	
  11

  
	
  ARTICLE 3
  COLLATERAL CHANGES

  	
   

  	
  11

  
	
  Section 3.01.

  	
   

  	
  Right to
  Obtain Releases of Collateral

  	
   

  	
  11

  
	
  Section 3.02.

  	
   

  	
  Procedure
  for Obtaining Releases of Collateral

  	
   

  	
  11

  
	
  Section 3.03.

  	
   

  	
  Substitutions

  	
   

  	
  14

  
	
  ARTICLE 4
  CONDITIONS PRECEDENT TO ALL REQUESTS

  	
   

  	
  19

  
	
  Section 4.01.

  	
   

  	
  Conditions Applicable
  to All Requests

  	
   

  	
  19

  
	
  Section 4.02.

  	
   

  	
  Conditions
  Precedent to Initial Loan

  	
   

  	
  21

  
	
  Section 4.03.

  	
   

  	
  Conditions
  Precedent to Additional Fixed Loans

  	
   

  	
  22

  
	
  Section 4.04.

  	
   

  	
  Conditions
  Precedent to Release of Property from the Collateral Pool 

  	
   

  	
  23

  
	
  Section 4.05.

  	
   

  	
  Conditions
  Precedent to Substitution of a Substitute Mortgaged Property

  	
   

  	
   

  
	
   

  	
   

  	
  to the
  Collateral Pool

  	
   

  	
  25

  
	
  Section 4.06.

  	
   

  	
  Delivery of
  Opinion Relating to Loan Request or Substitution Request

  	
   

  	
  25

  
	
  Section 4.07.

  	
   

  	
  Delivery of
  Property-Related Documents

  	
   

  	
  26

  
	
  Section 4.08.

  	
   

  	
  Conditions
  Precedent to Letters of Credit

  	
   

  	
  27

  
	
  ARTICLE 5
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  28

  
	
  Section 5.01.

  	
   

  	
  Representations
  and Warranties of Borrower

  	
   

  	
  28

  
	
  Section 5.02.

  	
   

  	
  Representations
  and Warranties of Lender

  	
   

  	
  28

  
	
  ARTICLE 6
  AFFIRMATIVE COVENANTS OF BORROWER

  	
   

  	
  29

  
	
  Section 6.01.

  	
   

  	
  Compliance
  with Agreements

  	
   

  	
  29

  
	
  Section 6.02.

  	
   

  	
  Maintenance
  of Existence

  	
   

  	
  29

  
	
  Section 6.03.

  	
   

  	
  Financial
  Statements; Accountants’ Reports; Other Information

  	
   

  	
  29

  
	
  Section 6.04.

  	
   

  	
  Access to
  Records; Discussions With Officers and Accountants

  	
   

  	
  32

  
	
  Section 6.05.

  	
   

  	
  Certificate
  of Compliance

  	
   

  	
  33

  
	
  Section 6.06.

  	
   

  	
  Maintain
  Licenses, Permits, Etc.

  	
   

  	
  33

  
	
  Section 6.07.

  	
   

  	
  Inform
  Lender of Material Events

  	
   

  	
  33

  
	
  Section 6.08.

  	
   

  	
  Compliance
  with Applicable Laws

  	
   

  	
  34

  
	
  Section 6.09.

  	
   

  	
  Alterations to
  the Mortgaged Properties

  	
   

  	
  34

  



 


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  Section 6.10.

  	
   

  	
  Loan
  Document Taxes

  	
   

  	
  35

  
	
  Section 6.11.

  	
   

  	
  Further
  Assurances

  	
   

  	
  36

  
	
  Section 6.12.

  	
   

  	
  Ownership

  	
   

  	
  36

  
	
  Section 6.13.

  	
   

  	
  Transfer of
  Ownership Interests in Borrower Parties

  	
   

  	
  37

  
	
  Section 6.14.

  	
   

  	
  Transfer of
  Ownership of Mortgaged Property

  	
   

  	
  38

  
	
  Section 6.15.

  	
   

  	
  Change in
  Senior Management

  	
   

  	
  40

  
	
  Section 6.16.

  	
   

  	
  Date-Down
  Endorsements

  	
   

  	
  40

  
	
  Section 6.17.

  	
   

  	
  Ownership of
  Mortgaged Properties

  	
   

  	
  40

  
	
  Section 6.18.

  	
   

  	
  Change in
  Property Manager

  	
   

  	
  40

  
	
  Section 6.19.

  	
   

  	
  ADA
  Litigation

  	
   

  	
  41

  
	
  Section 6.20.

  	
   

  	
  Special
  Covenant Regarding Newport Village

  	
   

  	
  41

  
	
  Section 6.21.

  	
   

  	
  Special
  Covenant Regarding The Bennington

  	
   

  	
  41

  
	
  Section 6.22.

  	
   

  	
  Special
  Covenant Regarding Oakwood Long Beach Marina

  	
   

  	
  41

  
	
  Section 6.23.

  	
   

  	
  Special
  Covenant Regarding Archstone del Rey and Oakwood Marina del Rey

  	
   

  	
  42

  
	
  Section 6.24.

  	
   

  	
  Special
  Covenant Regarding The Statesman

  	
   

  	
  42

  
	
  Section 6.25.

  	
   

  	
  Special
  Covenant Regarding Connecticut Heights

  	
   

  	
  42

  
	
  Section 6.26.

  	
   

  	
  Special
  Covenant Regarding Line of Credit Availability

  	
   

  	
  43

  
	
  Section 6.27.

  	
   

  	
  Special
  Covenant Regarding Key West and The Westmont

  	
   

  	
  43

  
	
  ARTICLE 7
  NEGATIVE COVENANTS OF BORROWER

  	
   

  	
  43

  
	
  Section 7.01.

  	
   

  	
  Other
  Activities

  	
   

  	
  43

  
	
  Section 7.02.

  	
   

  	
  Liens

  	
   

  	
  44

  
	
  Section 7.03.

  	
   

  	
  Indebtedness

  	
   

  	
  44

  
	
  Section 7.04.

  	
   

  	
  Principal
  Place of Business

  	
   

  	
  45

  
	
  Section 7.05.

  	
   

  	
  Condominiums

  	
   

  	
  45

  
	
  Section 7.06.

  	
   

  	
  Restrictions
  on Distributions

  	
   

  	
  45

  
	
  Section 7.07.

  	
   

  	
  Master
  Leases

  	
   

  	
  45

  
	
  Section 7.08.

  	
   

  	
  Cash
  Management

  	
   

  	
  46

  
	
  ARTICLE 8
  FEES

  	
   

  	
  46

  
	
  Section 8.01.

  	
   

  	
  Re-Underwriting
  Fee

  	
   

  	
  46

  
	
  Section 8.02.

  	
   

  	
  Origination
  Fee

  	
   

  	
  46

  
	
  Section 8.03.

  	
   

  	
  Due
  Diligence Fees

  	
   

  	
  46

  
	
  Section 8.04.

  	
   

  	
  Legal Fees
  and Expenses

  	
   

  	
  47

  
	
  Section 8.05.

  	
   

  	
  Failure to
  Close any Request

  	
   

  	
  47

  
	
  ARTICLE 9
  EVENTS OF DEFAULT

  	
   

  	
  48

  
	
  Section
  9.01.

  	
   

  	
  Events of
  Default

  	
   

  	
  48

  
	
  ARTICLE 10
  REMEDIES

  	
   

  	
  50

  
	
  Section
  10.01.

  	
   

  	
  Remedies;
  Waivers

  	
   

  	
  50

  
	
  Section
  10.02.

  	
   

  	
  Waivers;
  Rescission of Declaration

  	
   

  	
  51

  
	
  Section
  10.03.

  	
   

  	
  Lender’s
  Right to Protect Collateral and Perform Covenants and Other

  	
   

  	
   

  
	
   

  	
   

  	
  Obligations

  	
   

  	
  51

  
	
  Section
  10.04.

  	
   

  	
  No Remedy
  Exclusive

  	
   

  	
  52

  
	
  Section
  10.05.

  	
   

  	
  No Waiver

  	
   

  	
  52

  
	
  Section
  10.06.

  	
   

  	
  No Notice

  	
   

  	
  52

  
	
  ARTICLE 11
  IMPOSITION DEPOSITS

  	
   

  	
  52

  



 


ii

















 


	
  Section
  11.01.

  	
   

  	
  Insurance
  and Water/Sewer Waived; Other Imposition Deposits Required

  	
   

  	
  52

  
	
  Section
  11.02.

  	
   

  	
  Imposition
  Deposits

  	
   

  	
  53

  
	
  Section
  11.03.

  	
   

  	
  Replacement
  Reserves

  	
   

  	
  53

  
	
  Section
  11.04.

  	
   

  	
  Completion/Repair
  Reserves

  	
   

  	
  53

  
	
  ARTICLE 12
  LIMITS ON PERSONAL LIABILITY

  	
   

  	
  54

  
	
  Section
  12.01.

  	
   

  	
  Personal
  Liability to Borrower

  	
   

  	
  54

  
	
  Section
  12.02.

  	
   

  	
  Additional
  Borrowers

  	
   

  	
  56

  
	
  Section
  12.03.

  	
   

  	
  Borrower
  Agency Provisions

  	
   

  	
  57

  
	
  Section
  12.04.

  	
   

  	
  Waivers With
  Respect to Other Borrower Secured Obligation

  	
   

  	
  57

  
	
  Section
  12.05.

  	
   

  	
  Joint and
  Several Obligation; Cross-Guaranty

  	
   

  	
  62

  
	
  Section
  12.06.

  	
   

  	
  No
  Impairment

  	
   

  	
  62

  
	
  Section
  12.07.

  	
   

  	
  Election of
  Remedies

  	
   

  	
  62

  
	
  Section
  12.08.

  	
   

  	
  Subordination
  of Other Obligations

  	
   

  	
  63

  
	
  Section
  12.09.

  	
   

  	
  Insolvency
  and Liability of Other Borrower

  	
   

  	
  64

  
	
  Section
  12.10.

  	
   

  	
  Preferences,
  Fraudulent Conveyances, Etc.

  	
   

  	
  65

  
	
  Section
  12.11.

  	
   

  	
  Maximum
  Liability of Each Borrower

  	
   

  	
  65

  
	
  Section
  12.12.

  	
   

  	
  Liability
  Cumulative

  	
   

  	
  66

  
	
  ARTICLE 13
  MISCELLANEOUS PROVISIONS

  	
   

  	
  66

  
	
  Section
  13.01.

  	
   

  	
  Counterparts

  	
   

  	
  66

  
	
  Section
  13.02.

  	
   

  	
  Amendments,
  Changes and Modifications

  	
   

  	
  66

  
	
  Section
  13.03.

  	
   

  	
  Payment of
  Costs, Fees and Expenses

  	
   

  	
  66

  
	
  Section
  13.04.

  	
   

  	
  Payment
  Procedure

  	
   

  	
  67

  
	
  Section
  13.05.

  	
   

  	
  Payments on
  Business Days

  	
   

  	
  67

  
	
  Section
  13.06.

  	
   

  	
  Choice of
  Law; Consent to Jurisdiction; Waiver of Jury Trial

  	
   

  	
  67

  
	
  Section
  13.07.

  	
   

  	
  Severability

  	
   

  	
  69

  
	
  Section
  13.08.

  	
   

  	
  Notices

  	
   

  	
  69

  
	
  Section
  13.09.

  	
   

  	
  Further
  Assurances and Corrective Instruments

  	
   

  	
  71

  
	
  Section
  13.10.

  	
   

  	
  Term of this
  Agreement

  	
   

  	
  72

  
	
  Section
  13.11.

  	
   

  	
  Assignments;
  Third-Party Rights

  	
   

  	
  72

  
	
  Section
  13.12.

  	
   

  	
  Headings

  	
   

  	
  72

  
	
  Section
  13.13.

  	
   

  	
  General
  Interpretive Principles

  	
   

  	
  72

  
	
  Section
  13.14.

  	
   

  	
  Interpretation

  	
   

  	
  72

  
	
  Section
  13.15.

  	
   

  	
  Standards
  for Decisions, Etc.

  	
   

  	
  73

  
	
  Section
  13.16.

  	
   

  	
  Decisions in
  Writing

  	
   

  	
  73

  
	
  Section
  13.17.

  	
   

  	
  Approval of
  Waivers

  	
   

  	
  73

  
	
  Section
  13.18.

  	
   

  	
  USA Patriot
  Act

  	
   

  	
  73

  
	
  Section
  13.19.

  	
   

  	
  All Asset
  Filings

  	
   

  	
  73

  
	
  Section
  13.20.

  	
   

  	
  Special
  Provisions Regarding ASN Kendall Square LLC

  	
   

  	
  73

  
	
  Section
  13.21.

  	
   

  	
  Special
  Provisions Regarding Payment of Interest on Imposition Deposits

  	
   

  	
  74

  



 


iii

















 


EXHIBITS


 


	
  EXHIBIT A

  	
  Schedule of
  Collateral Pool Borrowers, Mortgaged Properties, Collateral Pools, Initial
  Loans and Initial Valuations

  
	
  EXHIBIT B

  	
  Fixed Loan
  Note

  
	
  EXHIBIT C

  	
  Variable
  Loan Note

  
	
  EXHIBIT D

  	
  Guaranty

  
	
  EXHIBIT E

  	
  Confirmation
  of Guaranty

  
	
  EXHIBIT F

  	
  Compliance
  Certificate

  
	
  EXHIBIT G-1

  	
  Organizational
  Certificate (Borrower)

  
	
  EXHIBIT G-2

  	
  Organizational
  Certificate (Guarantor)

  
	
  EXHIBIT G-3

  	
  Organizational
  Certificate (IDOT Guarantor)

  
	
  EXHIBIT H

  	
  Rate Form

  
	
  EXHIBIT I

  	
  Loan Request

  
	
  EXHIBIT J

  	
  Request
  (Substitution/Release)

  
	
  EXHIBIT K

  	
  Confirmation
  of Obligations

  
	
  EXHIBIT L

  	
  Certificate
  of Borrower

  
	
  EXHIBIT M

  	
  List of
  Master Leases

  
	
  EXHIBIT N

  	
  Permitted
  Investments

  
	
  EXHIBIT O

  	
  Hedge
  Security Agreement

  
	
  EXHIBIT P

  	
  Form of
  Letter of Credit

  
	
  EXHIBIT Q

  	
  Forms of
  Master Lease Estoppel and Subordination Agreement

  
	
   

  	
   

  
	
  APPENDIX I

  	
  Definitions

  



 


iv

















 


MASTER CREDIT FACILITY AGREEMENT


 


THIS MASTER
CREDIT FACILITY AGREEMENT is made as of the 5th day of October, 2007, by and among (i) (a) the Borrowers identified on Schedule I  attached
hereto, (b) such Additional Borrowers as may from time to time become Borrowers
under this Agreement (individually and collectively, “Borrower”), (c) the Maryland Indemnity Deed of Trust Guarantors identified
on Schedule II  attached hereto, and (d) such Additional
Maryland Indemnity Deed of Trust Guarantors as may from time to time become
IDOT Guarantors under this Agreement (the entities described in (c) and (d),
individually and collectively, “IDOT
Guarantor”); and (ii) LEHMAN
BROTHERS HOLDINGS INC., a Delaware corporation, BANK OF AMERICA, N.A., a national banking
association, and BARCLAYS CAPITAL REAL ESTATE
INC., a Delaware corporation (individually and collectively, “Lender”).


 


RECITALS


 


A.            Each Borrower and IDOT Guarantor
owns a Multifamily Residential Property (in fee simple or as tenant under a
ground lease) as more particularly described in Exhibit A to this
Agreement (unless otherwise defined or the context clearly indicates otherwise,
capitalized terms shall have the meanings ascribed to such terms in Appendix
I of this Agreement); reference to “relevant” or “applicable” Loans,
Mortgaged Properties or Loan Documents shall refer to the Loans made to a
Collateral Pool Borrower, the Mortgaged Properties securing such Loans or the
Loan Documents entered into by such Collateral Pool Borrower in respect of such
Loans, respectively. As set forth below, each Mortgaged Property shall be part
of a Collateral Pool and each such Mortgaged Property in a Collateral Pool
shall secure all Loans made with respect to such Collateral Pool.


 


B.            As set forth below, the Mortgaged
Properties identified on Exhibit A to this Agreement as part of “Collateral
Pool 1” shall each secure one or more Loans made in respect of such
Mortgaged Properties, and shall comprise Collateral Pool 1. The Mortgaged
Properties identified on Exhibit A to the Agreement as part of “Collateral
Pool 2” shall each secure one or more Loans made in respect of such Mortgaged
Properties, and shall comprise Collateral Pool 2. The Mortgaged Properties
identified on Exhibit A to the Agreement as part of “Collateral Pool 3”
shall each secure one or more Loans made in respect of such Mortgaged
Properties, and shall comprise Collateral Pool 3. The Mortgaged Properties
identified on Exhibit A to the Agreement as part of “Collateral Pool 4”
shall each secure one or more Loans made in respect of such Mortgaged
Properties, and shall comprise Collateral Pool 4. The Mortgaged Properties
identified on Exhibit A to the Agreement as part of “Collateral Pool 5”
shall each secure one or more Loans made in respect of such Mortgaged
Properties, and shall comprise Collateral Pool 5. The Mortgaged Properties
identified on Exhibit A to the Agreement as part of “Collateral Pool 6”
shall each secure one or more Loans made in respect of such Mortgaged
Properties, and shall comprise Collateral Pool 6. The Mortgaged Properties
identified on Exhibit A to the Agreement as part of “Collateral Pool 7”
shall each secure one or more Loans made in respect of such Mortgaged
Properties, and shall comprise Collateral Pool 7. The Mortgaged Properties
identified on Exhibit A to the Agreement as part of “Collateral Pool 8”
shall each secure one or more Loans made in respect of such Mortgaged
Properties, and shall comprise Collateral Pool 8. The Mortgaged Properties
identified on Exhibit A to the Agreement as part of “Collateral Pool 9”


 


1

















 


shall each
secure one or more Loans made in respect of such Mortgaged Properties, and
shall comprise Collateral Pool 9.


 


C.            Borrower has requested that Lender
make Loans to Borrower in the principal amounts set forth on Exhibit A
attached hereto, such Loans having an aggregate original principal amount of
$7,069,325,900.


 


D.            To secure the obligations of each
Collateral Pool Borrower under this Agreement and the other Loan Documents
executed in connection with the Loan made to such Borrower, such Collateral
Pool Borrower or IDOT Guarantor shall pledge its respective Collateral to
Lender. Each Borrower’s or IDOT Guarantor’s Collateral shall be comprised of
(i) Multifamily Residential Properties owned by Borrower or IDOT Guarantor or
any Additional Borrower or Additional IDOT Guarantor and (ii) any other
collateral pledged to Lender from time to time by any Borrower, IDOT Guarantor,
any Additional Borrower or Additional IDOT Guarantor pursuant to this Agreement
or any other Loan Documents.


 


E.             The Multifamily Residential
Properties comprising the Collateral shall be grouped into nine (9) Collateral
Pools, as set forth on Exhibit A. Each Collateral Pool Borrower shall be
the obligor on the Note or Notes secured by the Mortgaged Properties comprising
its related Collateral Pool and each such Loan shall be secured by a Security
Instrument on the Mortgaged Property owned by such Collateral Pool Borrower or
IDOT Guarantor.


 


F.             Each Loan, Note and Security
Document related to the Mortgaged Properties comprising each Collateral Pool
shall be cross-defaulted (i.e., a default under any Loan, Note, Security
Document relating to each Mortgaged Property comprising Collateral Pool 1 (for
example) under this Agreement, shall constitute a default under each Loan, Note
and Security Document comprising Collateral Pool 1 (for example) and under this
Agreement related to the Mortgaged Properties in such Collateral Pool) and
cross-collateralized (i.e., each Security Instrument related to the
Mortgaged Properties within Collateral Pool 1 (for example) shall secure all of
Borrower’s obligations under this Agreement and the other Loan Documents
related to the Loan secured by the Mortgaged Properties within Collateral Pool
1 (for example)) to the other Notes and Security Documents related to the
Mortgaged Properties in such Collateral Pool and it is the intent of the
parties to this Agreement that after an Event of Default, Lender may accelerate
any Note related to such Collateral Pool without needing to accelerate any
other Note and that in the exercise of its rights and remedies under the Loan
Documents, Lender may, except as provided in this Agreement, exercise and
perfect any and all of its rights in and under the Loan Documents with regard
to any Mortgaged Property in such Collateral Pool without needing to exercise
and perfect its rights and remedies with respect to any other Mortgaged
Property in such Collateral Pool and that any such exercise shall be without
regard to the Allocable Loan Amount assigned to such Mortgaged Property and
that Lender may recover an amount equal to the full amount outstanding in
respect of any of the Notes related to the Mortgaged Properties within a
Collateral Pool, in connection with such exercise and any such amount shall be
applied to the Obligations as determined by Lender in its sole and absolute
discretion.


 


2

















 


G.            No Loan, Note or Security Document
within one Collateral Pool shall be cross-collateralized or cross-defaulted
with any Loan, note or Security Document in any other Collateral Pool.


 


H.            Subject to the terms, conditions and
limitations of this Agreement, Lender has agreed to establish the Credit
Facility and make the Loans to each Collateral Pool Borrower in the respective
amounts described on Exhibit A.


 


NOW,
THEREFORE, Borrower, IDOT Guarantor and Lender, in consideration of the mutual
promises and agreements contained in this Agreement, hereby agree as follows:


 


ARTICLE 1


THE COMMITMENT TO MAKE LOANS


 


Section
1.01.        The Commitment to Make
Loans.


 


Subject to the
terms, conditions and limitations of this Agreement:


 


(a)           Variable Loans. Lender agrees
to make a Variable Loan to each applicable Collateral Pool Borrower in the
original principal amounts set forth in respect of such Collateral Pool
Borrower on Exhibit A attached hereto. No Variable Loans shall be made
as a result of decrease in the Loan to Value Ratio or an increase in the Debt
Service Coverage Ratio of any Mortgaged Property.


 


(b)           Fixed Loans. Lender agrees to
make a Fixed Loan to each applicable Collateral Pool Borrower in the original
principal amounts in respect of such Collateral Pool Borrower set forth on Exhibit
A attached hereto. Except as set forth in Section 2.05 of this
Agreement, no Fixed Loan or Additional Fixed Loan shall be made as a result of
a decrease in the Loan to Value Ratio or an increase in the Debt Service
Coverage Ratio of any Mortgaged Property.


 


(c)           Maximum Loans. The maximum
aggregate original principal amount of all Loans, including the Variable Loans,
the Fixed Loans, and any Additional Fixed Loans, made pursuant to this
Agreement shall be $7,369,325,900. No Borrower may re-borrow any part of a Loan
which it has previously borrowed and repaid. Each Loan is anticipated to be
purchased by Fannie Mae for cash.


 


(d)           Minimum Variable Loans Outstanding.
During the Term of this Agreement, no Variable Loans secured by a Collateral
Pool shall be permitted to remain Outstanding unless the aggregate of Variable
Loans Outstanding secured by such Collateral Pool is at least $25,000,000. If
the aggregate principal amount Outstanding of Variable Loans for a Collateral
Pool is more than $0 but less than $25,000,000, then the applicable Collateral
Pool Borrower shall, within ninety (90) days of the date on which the aggregate
principal balance of Variable Loans Outstanding falls below $25,000,000, repay
in full on the last day of the then current month all Variable Loans
Outstanding under such Collateral Pool, together with any prepayment premiums
and other amounts due under such Loan Documents.


 


3

















 


Section
1.02.        Maturity Date of Loans;
Amortization; Prepayment.


 


(a)           Variable Loans


 


(i)            Maturity Date of Variable Loans.
The maturity date of each Variable Loan shall be the first day of the month
following the date two (2) years after the Initial Closing Date subject to the
Extension pursuant to Section 1.05 of this Agreement.


 


(ii)           Amortization and Payment of
Variable Loans. Variable Loans shall be payable interest only.


 


(iii)          Prepayment of Variable Loans.
Subject to the terms and conditions of the applicable Variable Loan Note and Section
3.02(d) of this Agreement, Variable Loans are prepayable (in whole or in
part) at any time pursuant to the prepayment provisions of the applicable
Variable Loan Note.


 


(b)           Fixed Loans.


 


(i)            Maturity Date of Fixed Loans.
The maturity date of each Fixed Loan (other than an Additional Fixed Loan)
shall be specified by the applicable Collateral Pool Borrower for such Fixed
Loan, provided that such maturity date shall be the first day of the month
following the date five (5) seven (7) or ten (10) years after the Initial
Closing Date as more specifically set forth in the applicable Fixed Loan Note.
Subject to the terms of Section 2.05 of this Agreement, the maturity
date of any Additional Fixed Loan shall be the later of (A) the first day of
the month following the date five (5) years from the Closing Date of such
Additional Fixed Loan, and (B) the latest maturity date of the Initial Loan
Outstanding under such Collateral Pool.


 


(ii)           Amortization and Payment of Fixed
Loans. Fixed Loans (other than Additional Fixed Loans) shall be payable
interest only. Additional Fixed Loans may require amortization and may require
principal and interest payments, as determined by Lender on or before the
Closing Date of such Additional Fixed Loan.


 


(iii)          Prepayment of Fixed Loans.
Fixed Loans (other than Additional Fixed Loans) are not prepayable without
premium during the period beginning on the Initial Closing Date of such Fixed
Loan and ending six (6) months prior to the maturity date of such Fixed Loan
(as more specifically described in the applicable Fixed Loan Note); provided
that, notwithstanding the foregoing, Borrower may prepay all or any portion of
any Fixed Loan pursuant to the yield maintenance provisions of the applicable
Fixed Loan Note. The prepayment terms of any Additional Fixed Loan shall be
determined by Borrower and Lender prior to the Closing Date of such Additional
Fixed Loan.


 


Section
1.03.        Interest on Loans.


 


(a)           Variable Loans.


 


(i)            Interest on Variable Loans.
Interest shall accrue on the unpaid principal balance of a Variable Loan from
the date such Variable Loan is made at the Adjustable


 


4

















 


Rate based on
One Month LIBOR (or during an Extension, Three-Month LIBOR, as determined by
the applicable Collateral Pool Borrower) as more specifically set forth in the
applicable Variable Loan Note. Interest accrued through the end of each month
shall be payable two (2) Business Days before the first day of the following
month as more particularly set forth in the Variable Loan Note. The Adjustable
Rate shall change on each Rate Change Date until the Loan is repaid in full in
accordance with the Variable Loan Note. Interest payments for Variable Loans
shall be calculated on an actual/360 basis.


 


(ii)           Variable Loan Fee. The
applicable Collateral Pool Borrower shall pay monthly installments of the
Variable Loan Fee to Lender for each Variable Loan Outstanding from the date of
any Variable Loan to its maturity date or until it is repaid in full. The
Variable Loan Fee shall be included in the Adjustable Rate and payable in
accordance with the terms of the related Variable Loan Note.


 


(b)           Fixed Loans. Each Fixed Loan
made on the Initial Closing Date shall bear interest at the rate set forth in
the related Fixed Loan Note. Each Additional Fixed Loan shall bear interest at
a rate, per annum, equal to the sum of (A) the Cash Interest Rate for such
Additional Fixed Loan and (B) the Fixed Loan Fee. Interest payments for Fixed
Loans made on the Initial Closing Date shall be calculated on an actual/360
basis. Interest on Additional Fixed Loans shall be calculated on an actual/360
basis or 30/360 basis as determined by Lender prior to the Closing Date of such
Additional Fixed Loan.


 


Section
1.04.        Notes.


 


(a)           Variable Loans. The obligation
of the applicable Collateral Pool Borrower to repay the related Variable Loan
shall be evidenced by one or more Variable Loan Notes executed by each
applicable Collateral Pool Borrower. Each Variable Loan Note shall be payable
to the order of Lender and shall be made in the original principal amount of
the applicable Variable Loan.


 


(b)           Fixed Loans. The obligation of
the applicable Collateral Pool Borrower to repay the related Fixed Loan shall
be evidenced by one or more Fixed Loan Notes executed by each applicable
Collateral Pool Borrower. Each Fixed Loan Note shall be payable to the order of
Lender and shall be made in the original principal amount of the applicable
Fixed Loan.


 


Section
1.05.        Extension of Variable
Loans.


 


The applicable
Collateral Pool Borrower shall have the right to extend the maturity date of
the related Variable Loan for three (3) periods of one (1)-year each (provided
the maturity date of any Variable Loan shall not exceed the first date of the
month following the date five (5) years after the Initial Closing Date) (the “Extension”) upon satisfaction of each
of the following conditions in connection with each Extension:


 


(a)           The applicable Collateral Pool
Borrower delivers written notice requesting the Extension (“Extension Notice”) to Lender not less
than forty-five (45) days prior to the then effective Variable Loan maturity
date.


 


5

















 


(b)           There has been no monetary or
material non-monetary Event of Default (as determined in Lender’s sole and
absolute discretion) under the Loan Documents relating to such Collateral Pool,
and no Event of Default or Potential Event of Default relating to such
Collateral Pool exists on the date the Extension Notice is delivered and on the
then effective Variable Loan maturity date.


 


(c)           The Aggregate Debt Service Coverage
of such Collateral Pool is equal to or greater than 0.95:1.0 (taking into
account any reduction in the principal amount of the relevant Variable Loan
made on or before the then effective Variable Loan maturity date) on the then
effective Variable Loan maturity date.


 


(d)           All of the representations and
warranties of the applicable Collateral Pool Borrower, IDOT Guarantor and the
Guarantor contained in Exhibit L to this Agreement and the other Loan
Documents are true and correct in all material respects (i) on the date the
Extension Notice is delivered and (ii) on the then effective Variable Loan
maturity date.


 


(e)           The applicable Collateral Pool
Borrower or IDOT Guarantor is in compliance with all of the covenants contained
in Article 6 and Article 7 (i) on the date the Extension Notice
is delivered and (ii) on the then effective Variable Loan maturity date.


 


(f)            The Collateral Pool Borrower pays to
Lender a Re-Underwriting Fee.


 


(g)           Borrower shall deliver to Lender at
least five (5) days prior to the then effective Variable Loan maturity date the
confirmation of an Interest Rate Hedge commitment, in accordance with the Hedge
Security Agreement, effective as of the then effective Variable Loan maturity
date with a term of at least the Extension.


 


(h)           Borrower shall deliver to Lender
Interest Rate Hedge Documents, in accordance with the Hedge Security Agreement,
and an executed Hedge Security Agreement, each effective as of the then
effective Variable Loan maturity date with a term of at least the Extension.


 


(i)            Interest shall accrue on the unpaid
principal balance of such Variable Loan from the then effective Variable Loan
maturity date to the end of the then effective Extension at the Adjustable Rate
based on One Month LIBOR or Three Month LIBOR as elected by Borrower prior to the
then effective Variable Loan maturity date (provided such One Month or Three
Month LIBOR election shall remain in place for the term of the Extension).


 


Upon receipt
of the Extension Notice and upon compliance with conditions set forth above,
the Variable Loan maturity date for the applicable Variable Loan Note shall be
extended for one (1) period of one (1) year on the terms and conditions
contained in this Agreement (including the Variable Loan Fee) and the other
Loan Documents.


 


Section
1.06.        Interest Rate Hedge.


 


To protect
against fluctuations in interest rates during the term, pursuant to the terms
of the Hedge Security Agreement, the applicable Collateral Pool Borrower shall
make arrangements for a LIBOR-based instrument (“Interest Rate Hedge”) to be in place and maintained at all


 


6

















 


times with
respect to any Variable Loan which has been funded and remains Outstanding. As
set forth in the Hedge Security Agreement, the applicable Collateral Pool
Borrower agrees to pledge its right, title and interest in the Interest Rate
Hedge to Lender as additional collateral for the Indebtedness.


 


ARTICLE 2


THE LOANS


 


Section
2.01.        Rate Setting for a Loan.


 


Rates for each
Loan shall be set in accordance with the following procedures:


 


(a)           Initial Loans. The interest
rate for the Initial Loans has been agreed upon by Borrower and Lender and is
set forth in the Notes evidencing the Initial Loans.


 


(b)           Additional Fixed Loans. The
following shall apply to the rate setting for Additional Fixed Loans:


 


(i)            Preliminary, Nonbinding Quote.
At the applicable Collateral Pool Borrower’s request Lender shall quote an
estimate of the Cash Interest Rate. Lender’s quote shall be based on (x) the
rate quoted by Fannie Mae, and (y) the proposed terms and amount of the Loan
selected by such Collateral Pool Borrower. The quote shall not be binding upon
Lender.


 


(ii)           Rate Setting. If the
applicable Collateral Pool Borrower satisfies all of the conditions to Lender’s
obligation to make the Loan, then such Collateral Pool Borrower may request
that Lender submit to such Collateral Pool Borrower by facsimile transmission
(or via electronic mail in PDF format) a completed draft Rate Form. The Rate
Form shall specify the Loan Amount, term, Fixed Loan Fee, any breakage fee
deposit amount, Cash Interest Rate, and Closing Date for the Loan. If the draft
Rate Form is approved by the applicable Collateral Pool Borrower, such Borrower
shall initial and return the approved Rate Form to Lender by facsimile transmission
(or via electronic mail in PDF format) before 1:00 p.m. Eastern Standard Time
or Eastern Daylight Time, as applicable, on any Business Day (“Rate Setting Date”).


 


(iii)          Rate Confirmation. Within one
(1) Business Day after receipt of the Rate Form, Lender shall obtain a
commitment from Fannie Mae (“Fannie Mae
Commitment”) for the purchase of the proposed Additional Loan
having the terms described in the related Rate Form. Lender shall then complete
and sign the Rate Form thereby confirming the amount, term, Cash Interest Rate,
Fixed Loan Fee and Closing Date for the Additional Loan and shall immediately
deliver by facsimile transmission (or via electronic mail in PDF format) the
Rate Form to the applicable Collateral Pool Borrower to be countersigned.


 


Section
2.02.        Breakage and Other Costs.


 


If Lender
obtains, and then fails to fulfill, a Fannie Mae Commitment because the Loan is
not made (for a reason other than Lender’s default), the applicable Collateral
Pool Borrower shall pay all reasonable out-of-pocket costs (including attorneys’
fees and costs), fees and damages incurred by Lender in connection with its
failure to fulfill the Fannie Mae Commitment.


 


7

















 


Lender
reserves the right to require the applicable Collateral Pool Borrower to post a
deposit at the time the Fannie Mae Commitment is obtained. Such deposit shall
be refunded to the applicable Collateral Pool Borrower upon the purchase of the
Note by Fannie Mae.


 


Section
2.03.        Loans.


 


A Collateral
Pool Borrower may deliver a Loan Request to Lender.


 


(a)           Initial Loan. If a Collateral
Pool Borrower delivers a Loan Request to obtain an Initial Loan and all
conditions precedent contained in Section 4.02 and the General
Conditions contained in Section 4.01 are satisfied on or before the
Initial Closing Date, Lender shall make such Initial Loan on the Initial
Closing Date or on such other date as such Collateral Pool Borrower and Lender
may agree.


 


(b)           Additional Fixed Loans. If the
Loan Request is to obtain an Additional Fixed Loan pursuant to Section 2.05 of
this Agreement, such Loan Request shall be in the minimum amount of $3,000,000.
If all conditions precedent contained in Section 4.03 and the General
Conditions contained in Section 4.01 are satisfied, Lender shall make
the requested Additional Fixed Loan, at a closing to be held at offices
designated by Lender and reasonably acceptable to the applicable Collateral
Pool Borrower on a Closing Date proposed by such Borrower and approved by
Lender, which date shall be not more than three (3) Business Days after such
Borrower’s receipt from Lender of the confirmed Rate Form (or on such other
date as Borrower and Lender may agree).


 


Section
2.04.        Determination of Allocable
Loan Amount and Valuations.


 


(a)           Initial Determinations. On the
Initial Closing Date, Lender shall determine (i) the Allocable Loan Amount and
Valuation for each Initial Mortgaged Property, (ii) the Aggregate Debt Service
Coverage Ratio and the Aggregate Loan to Value Ratio for each Collateral Pool,
and (iii) the Loan Amount supported by such Collateral Pool. The determinations
made in clause (i) as of the Initial Closing Date shall remain unchanged until
a Collateral Event occurs under such Collateral Pool. Changes in Allocable Loan
Amount, Valuations, the Aggregate Debt Service Coverage Ratio and the Aggregate
Loan to Value Ratio shall be made pursuant to Section 2.04(b).


 


(b)           Monitoring Determinations.
Once each Calendar Quarter or, if a Collateral Pool consists only of Fixed
Loans that have an Aggregate Debt Service Coverage Ratio equal to or greater
than 1.25:1.0, once each Calendar Year, within twenty (20) Business Days after
Borrower has delivered to Lender the reports required in Section 6.03,
Lender shall determine the Aggregate Debt Service Coverage Ratio and the
Aggregate Loan to Value Ratio for such Collateral Pool, and whether Borrower is
in compliance with the other covenants set forth in the Loan Documents. After a
Collateral Event with respect to the relevant Collateral Pool, Lender shall
redetermine Allocable Loan Amounts and Valuations for such Collateral Pool.
Lender shall determine Cap Rates when determining Valuations in its sole and
absolute discretion on the basis of its internal survey and analysis of Cap
Rates for comparable sales in the vicinity of the Mortgaged Property, with such
adjustments as Lender deems appropriate and shall not be obligated to use any
information provided by Borrower. Lender shall promptly


 


8

















 


disclose its
determinations to the applicable Collateral Pool Borrower. Until redetermined,
the Allocable Loan Amounts and Valuations determined by Lender shall remain in
effect. In performing a Valuation of a Multifamily Residential Property to be
added to any Collateral Pool as part of a Substitution, Lender shall be
entitled to obtain an Appraisal, and the Valuation will be based on such
Appraisal. Lender shall also have the right to obtain an Appraisal or a Cap
Rate study conducted by an appraiser in connection with the redetermination of
a Valuation of a Mortgaged Property if Lender is unable to determine a Cap Rate
for such Mortgaged Property.


 


(c)           If a Collateral Pool Borrower
disagrees with Lender’s Valuation of any Mortgaged Property that is part of such
Collateral Pool, such Borrower shall have the right to substitute for the Cap
Rate determined by Lender or Appraisal obtained by Lender, as applicable, a new
Cap Rate based on a capitalization rate study conducted by an appraiser or a
new Appraisal, as applicable, provided such Borrower gives notice to Lender of
its desire to substitute a new Cap Rate or a new Appraisal, as applicable, for
Lender’s Cap Rate or Appraisal, as applicable, within fifteen (15) Business
Days after such Borrower receives Lender’s determinations.


 


(i)            In the event the applicable
Collateral Pool Borrower has requested a new Cap Rate, the applicable
Collateral Pool Borrower and Lender shall determine the Cap Rate in accordance
with the following procedure:


 


(A)          Lender shall give such
Collateral Pool Borrower a list of approved appraisers for the local market in
which the Multifamily Residential Property is located within ten (10) Business
Days after the date on which such Borrower gives Lender its notice;


 


(B)           The relevant Collateral
Pool Borrower shall select an appraiser within ten (10) Business Days after the
date on which Lender gives such Collateral Pool Borrower the list of
Lender-approved appraisers;


 


(C)           Lender shall engage
the appraiser selected by Collateral Pool Borrower pursuant to clause (i)(B) to
perform the Cap Rate study within ten (10) Business Days after the date on
which such Borrower makes its selection; and


 


(D)          Such Collateral Pool
Borrower shall pay all reasonable outof- pocket fees and expenses of obtaining
the Cap Rate study, whether incurred by such Collateral Pool Borrower or
Lender.


 


(ii)           In the event the applicable
Collateral Pool Borrower has requested a new Appraisal, the applicable
Collateral Pool Borrower and Lender shall obtain the new Appraisal in accordance
with the following procedure:


 


(A)          Lender shall give
such Collateral Pool Borrower a list of approved appraisers for the local
market in which the relevant Multifamily Residential Property is located within
ten (10) Business Days after the date on which such Collateral Pool Borrower
gives Lender its notice;


 


9

















 


(B)           The relevant
Collateral Pool Borrower shall select an appraiser from the list of approved
Appraisers delivered by Lender to Borrower within ten (10) Business Days after
the date on which Lender gives such Collateral Pool Borrower the list of
Lender-approved appraisers;


 


(C)           Lender shall engage
the appraiser selected by Collateral Pool Borrower pursuant to clause (ii)(B)
above to perform the Appraisal study within ten (10) Business Days after the
date on which such Collateral Pool Borrower makes its selection; and


 


(D)          Such Collateral Pool
Borrower shall pay all reasonable out-of- pocket fees and expenses of obtaining
the Appraisal, whether incurred by such Collateral Pool Borrower or Lender.


 


If the
applicable Collateral Pool Borrower elects to substitute a new Cap Rate for
Lender’s Rate or a new Appraisal, the new Cap Rate or appraised value, as
applicable, shall be used to determine the Valuation for the Mortgaged Property
and, until the earlier of (A) the thirtieth (30th) day after the date on which the
appraiser is engaged by Lender or (B) the date on which the new Cap Rate is
determined, the Valuation of the Mortgaged Property in effect immediately prior
to Lender’s Valuation shall continue to be in effect. In the event the new Cap
Rate or Appraisal is not determined or delivered on or before the thirtieth (30th) day after which the appraiser is
engaged by Lender, then commencing on such thirtieth (30th) day and continuing until the new Cap Rate is determined or
the new Appraisal is delivered, the Valuation based on Lender’s determination
of the Cap Rate or Appraisal, as applicable, shall be in effect.


 


Notwithstanding
anything in this Agreement to the contrary, no change in Allocable Loan
Amounts, Valuations, the Aggregate Loan to Value Ratio or the Aggregate Debt
Service Coverage Ratio shall (E) result in a Potential Event of Default or
Event of Default under such Collateral Pool, (F) require the prepayment of any
Loans under such Collateral Pool, or (G) require the addition of Collateral to
such Collateral Pool.


 


Section 2.05.                         Additional
Fixed Loans Made on Decreases in Loan to Value Ratio and Increases in Debt
Service Coverage Ratio.


 


Notwithstanding
anything to the contrary in this Agreement, not more than once per Loan Year
for any Collateral Pool that secures a Fixed Loan, during the period beginning
on the Initial Closing Date and ending on the date two (2) years prior to the
maturity date of the Initial Loan, a Collateral Pool Borrower shall be
entitled, upon request as set forth below, to Additional Fixed Loans based on
decreases in the Aggregate Loan to Value Ratio and increases in the Aggregate
Debt Service Coverage Ratio for such Collateral Pool as determined by Lender in
accordance with this Agreement, provided that (i) the resulting Aggregate Debt
Service Coverage Ratio for such Collateral Pool shall be equal to or greater
than (A) prior to the date three (3) years after the Initial Closing Date,
1.15:1.0, and (B) on and after the date three (3) years after the Initial
Closing Date, 1.20:1.0, and (ii) the resulting Aggregate Loan to Value Ratio
shall be equal to or less than the Aggregate Loan to Value Ratio for such
Collateral Pool. Notwithstanding the foregoing, such maximum aggregate
amount of any Additional Fixed Loans shall be no greater than $300,000,000. The
relevant Collateral Pool Borrower shall request Additional Fixed Loans


 


10

















 


under this Section
2.05 by giving Lender a Loan Request in accordance with Section 2.03(b).
Each Additional Fixed Loan shall be executed by the applicable Collateral Pool
Borrower and shall be secured by each Mortgaged Property in the applicable
Collateral Pool. The applicable Collateral Pool Borrower shall pay all costs
related to any Additional Fixed Loan requested under this Section 2.05
(whether or not such Additional Fixed Loan is actually made), including but not
limited to, if required by Lender, Appraisal costs, physical needs assessment
costs, Fannie Mae and Lender due diligence fees, the Origination Fee payable
pursuant to Section 8.02, the Re-Underwriting Fee, all legal
fees reasonably incurred by Lender and Fannie Mae in connection with such
proposed Additional Fixed Loan, and any other third-party costs reasonably
incurred in connection with the proposed Additional Fixed Loan. No Additional
Fixed Loans shall be permitted under any Collateral Pool secured by a Variable
Loan. In the event that any “mezzanine debt” including, but not limited to, the
Lehman Mezzanine Debt is Outstanding as permitted by Section 7.03, the
proceeds of any Additional Fixed Loans shall be used to pay down such mezzanine
debt.


 


Section
2.06.        Maximum Amount of All
Loans.


 


The maximum
aggregate original principal amount of all Loans under this Agreement is
$7,369,325,900.


 


ARTICLE 3


COLLATERAL CHANGES


 


Section
3.01.        Right to Obtain Releases
of Collateral.


 


Subject to the
terms and conditions of this Article 3, Collateral Pool Borrower or IDOT
Guarantor shall have the right from time to time to obtain a release of
Collateral (a “Release”)
from the respective Collateral Pool.


 


Section
3.02.        Procedure for Obtaining
Releases of Collateral.


 


(a)         Request. To
obtain a release of Collateral from a Collateral Pool, the applicable
Collateral Pool Borrower shall deliver a Release Request to Lender.


 


(b)        Closing. If all
conditions precedent contained in Section 4.04 and all General
Conditions contained in Section 4.01 are satisfied, Lender shall cause
the Release Mortgaged Property to be released, at a closing to be held at
offices designated by Lender and reasonably acceptable to the applicable
Collateral Pool Borrower or IDOT Guarantor on a Closing Date proposed by such
Borrower and approved by Lender, and occurring (i) in the case of a Collateral
Pool with ten (10) or less Mortgaged Properties, within thirty (30) days after
Lender’s receipt of the Release Request and any other information required by
Lender (or on such other date as such Borrower and Lender may agree), and (ii)
in the case of a Collateral Pool with more than ten (10) Mortgaged Properties,
within sixty (60) days after Lender’s receipt of the Release Request and any
other information required by Lender (or on such other date as such Borrower
and Lender may agree), by executing and delivering, and causing all applicable
parties to execute and deliver, all at the sole cost and expense of Borrower,
the Release Documents. Unless otherwise instructed by Lender, the applicable Collateral
Pool Borrower, shall prepare the


 


11

















 


documents
pertaining to the release of the Security Instrument and submit them to Lender
for its review.


 


(c)           Release Price.


 


(i)            The “Release Price” for each Release Mortgaged Property means the
greater of (A) the Allocable Loan Amount for such Release Mortgaged Property
and (B) one hundred percent (100%) of the amount, if any, of the Loans
Outstanding that are required to be repaid by the applicable Collateral Pool
Borrower to Lender in connection with the proposed release of the Release
Mortgaged Property from such Collateral Pool so that, immediately after the
Release, the Coverage and LTV Tests for such Collateral Pool will be satisfied.
In the event the proposed Release is of a Mortgaged Property that is in a
Collateral Pool that secures a Fixed Loan and the Coverage and LTV Tests for
the applicable Collateral Pool are not satisfied after the Release of the
Release Mortgaged Property, but the Aggregate Debt Service Coverage Ratio of
such Collateral Pool is not less than the required Aggregate Debt Service
Coverage Ratio set forth in clause (2)(a) of the definition of Coverage and LTV
Tests for such Collateral Pool in effect on the Closing Date of the proposed
Release minus 0.05 (for example, if the required Aggregate Debt Service
Coverage set forth in clause (2)(a) of the definition of Coverage and LTV Tests
for the relevant Collateral Pool on the Closing Date of the proposed Release is
1.1:1.0, the Aggregate Debt Service Coverage Ratio of such Collateral Pool on
the Closing Date of the proposed Release may not be less than 1.05:1.0), the
applicable Collateral Pool Borrower may deposit with Lender cash or a Letter of
Credit (in accordance with the terms of Section 4.08 of this Agreement)
in an amount equal to the sum of the amount determined pursuant to clause (B) in this subsection above minus
the amount determined pursuant to clause (A) in this subsection above
subject to the provisions of Section 3.02(c)(ii) below (the “Shortfall Deposit”). The preceding
sentence shall not apply to Mortgaged Properties that are in a Collateral Pool
that secures a Variable Loan. In no event shall Borrower pay down less than the
Allocable Loan Amount for such Release Mortgaged Property on the Closing Date
of such Release. In addition to the Release Price, the applicable Collateral
Pool Borrower shall pay to Lender all associated prepayment premiums, accrued
interest and other amounts due under the Notes evidencing the Loans being
repaid.


 


(ii)           The Shortfall Deposit shall be
subject to the following terms and conditions: 


 


(A)          Such Collateral Pool
Borrower shall deposit either (i) cash and/or Permitted Investments or (ii) a
Letter of Credit, not both.


 


(B)           In the event such
Collateral Pool Borrower deposits cash and/or Permitted Investments with Lender
as the Shortfall Deposit, the amount of the Shortfall Deposit shall not exceed
fifteen percent (15%) of the principal balance of the Loans Outstanding under
such Collateral Pool calculated after the release of the Release Mortgaged
Property. Permitted Investments deposited to satisfy the Shortfall Deposit
requirements shall, in the case of cash or other Permitted Investments in which
Lender’s security interest is perfected by possession, be deposited by Lender
into an account maintained by Lender in accordance with Fannie Mae requirements
for similar accounts (the “Shortfall
Deposit Account”) and, in the case of other Permitted
Investments,


 


12

















 


pledged to
Lender pursuant to a pledge agreement, in form and substance acceptable to
Lender. All interest and other earnings accruing on any cash or Permitted
Investments shall remain in the Release Deposit Account and shall be subject to
this Agreement, provided that all such interest and other earnings shall be
credited to the applicable Collateral Pool Borrower. Cash shall be held in an
institution (which may be the Lender, if the Lender is such an institution)
whose deposits or accounts are insured or guaranteed by a federal agency. The
Lender shall not be obligated to open additional accounts or deposit Imposition
Deposits in additional institutions when the amount of the Imposition Deposits
exceeds the maximum amount of the federal deposit insurance or guaranty. Lender
shall not guaranty the rate of return or rate of interest on any cash held as
part of the Shortfall Deposit.


 


(C)           In the event such
Collateral Pool Borrower posts a Letter of Credit pursuant to the terms of Section
4.08 of this Agreement as the Shortfall Deposit, the value of the Shortfall
Deposit shall not exceed ten percent (10%) of the principal balance of the
Loans Outstanding under such Collateral Pool calculated after the release of
the Release Mortgaged Property.


 


(D)          The Shortfall Deposit
(including any interest and other earnings accruing on any Permitted
Investments in the Shortfall Deposit Account) shall be disbursed to the
applicable Collateral Pool Borrower upon the earliest of (x) payment of all
Obligations of such Collateral Pool Borrower under the Loan Documents, (y) the
date the applicable Collateral Pool satisfies the Coverage and LTV Tests for
such Collateral Pool, and (z) upon compliance with the next sentence, the date
one hundred eighty (180) days after the Closing Date of the Release Request. If
on the date one hundred eighty (180) days after the Closing Date of the Release
Request the Coverage and LTV Tests for such Collateral Pool in effect as of the
Closing Date of the Release Request are not satisfied, the applicable
Collateral Pool Borrower shall pay down the Loans Outstanding under such
Collateral Pool such that the Coverage and LTV Tests are satisfied.


 


(iii)          Notwithstanding anything to the
contrary in this Section 3.02, the requirement that the Coverage and LTV
Tests be satisfied (or that the Aggregate Debt Service Coverage Ratio not be
reduced by more than 0.05:1.0 from the required Aggregate Debt Service Coverage
Ratio as set forth in clause (2)(a) of the definition of Coverage and LTV Tests
in effect on the Closing Date of the proposed release) after the release of a
proposed Release Mortgaged Property may be waived temporarily by Lender in its
sole discretion, if neither the Aggregate Debt Service Coverage Ratio will be
reduced nor the Aggregate Loan to Value Ratio for such Collateral Pool will be
increased as a result of such proposed Release, with such waiver based on
factors that are not in conflict with Lender’s Underwriting Requirements,
including but not limited to the then current Valuation of the Mortgaged
Properties in such Collateral Pool, the then current Aggregate Debt Service
Coverage Ratio of such Collateral Pool, the then current Aggregate Loan to
Value Ratio of such Collateral Pool, the strength of the Guarantor, the quality
of the market where the remaining Mortgaged Properties is located, and the
geographic distribution of the Mortgaged Properties in such Collateral Pool at
that time. In connection with a release pursuant to this Section
3.02(c)(iii), the applicable Collateral Pool Borrower shall


 


13

















 


otherwise
comply with the terms of Section 3.02, including depositing any
Shortfall Deposit required pursuant to Section 3.02(c)(i) and Section
3.02(c)(ii).


 


(d)           Application of Release Price.


 


(i)            The Release Price for the Release
Mortgaged Property shall be applied against the Outstanding Loans in the
applicable Collateral Pool Borrower’s discretion, provided that (A) any
Outstanding Loan which Borrower elects to prepay must be prepaid in full, or if
the Release Price is not sufficient to do so, must be the only Loan partially
prepaid; (B) any prepayment of Fixed Loans is permitted (for example, not
subject to a lock out period) under the applicable Fixed Loan Note, (C) any
prepayment premium due and owing is paid, and (D) interest must be paid through
the end of the month.


 


(ii)           In the event no Loan may be prepaid
under the terms of the applicable Note, the remainder of the Release Price, if
any, shall be held by Lender (or its appointed collateral agent) in an
interest-bearing account designated by Lender for the benefit of the applicable
Collateral Pool Borrower (provided that Lender shall not guaranty any rate of
interest to such Borrower) as substitute Collateral (collectively, with any
interest thereon, “Substitute Cash
Collateral”), in accordance with a security agreement (if
required by Lender) and other documents in form and substance acceptable to
Lender. Notwithstanding the foregoing, the release of the Release Mortgaged
Property may not be approved unless the aggregate Valuation of all Mortgaged
Properties remaining in such Collateral Pool is greater than Outstanding Loans
under such Collateral Pool. Any Substitute Cash Collateral remaining will be
returned to the applicable Collateral Pool Borrower on the date all Loans made
to such Collateral Pool Borrower are repaid in full, or after an event that
brings such Collateral Pool back into compliance with the Coverage and LTV
Tests for such Collateral Pool.


 


(e)        Partial Release of
Key West. The parties acknowledge that, pursuant to that certain lease
dated on or about October, 1986 between Parkgate Associates, L.P. and William
F. Ryan Community Health Center, Inc. affecting the Mortgaged Property commonly
known as Key West, having an address of 750 Columbus Avenue, New York, New
York, the tenant under such lease has an option to purchase a portion of such
Mortgaged Property. Lender agrees that upon exercise of such purchase option by
the tenant under such lease, Lender shall consider, but shall have no
obligation to approve, a partial release of such Mortgaged Property to
facilitate the sale pursuant to such purchase option and may, notwithstanding
the provisions of Section 7.05 of this Agreement, permit a condominium
regime to be recorded with respect to such Mortgaged Property.


 


Section
3.03.        Substitutions.


 


(a)        Right to Substitute
Collateral. Subject to the terms, conditions and limitations of Article
3 and Article 4 from time to time prior to the date that is twelve
(12) months prior to the Pool Termination Date, Borrower shall have the right
to obtain the release of one or more Release Mortgaged Properties from the
relevant Collateral Pool by replacing such Release Mortgaged Property with one
or more Multifamily Residential Properties that meet the requirements of this
Agreement (the “Substitute Mortgaged
Property”) thereby effecting a


 


14

















 


“Substitution” of Collateral. No
Substitutions shall be permitted under a Collateral Pool that secures a Variable
Loan.


 


(b)           Request. Borrower shall
deliver to Lender a completed and executed Substitution Request. Each
Substitution Request shall be accompanied by the following: (i) the information
required by the Underwriting Requirements with respect to the proposed
Substitute Mortgaged Property and any additional information Lender reasonably
requests; and (ii) the payment of all Additional Due Diligence Fees.


 


(c)           Underwriting.


 


(i)            (A) A Collateral Pool Borrower may
release one or more Release Mortgaged Properties from a Collateral Pool and
request the addition of one or more Substitute Mortgaged Properties to such
Collateral Pool provided that such Substitute Mortgaged Property is in a
comparable market as and of equivalent quality to the Release Mortgaged Property,
and provided further that (x) in connection with any Collateral Pool with
multiple Mortgaged Properties after such Substitution, the applicable Coverage
and LTV Tests for such Collateral Pool are satisfied, or (y) in connection with
a Collateral Pool which contains only one (1) Mortgaged Property, (1) the Debt
Service Coverage Ratio with respect to the Substitute Mortgaged Property equals
or exceeds the Debt Service Coverage Ratio of the Release Mortgaged Property
immediately prior to such proposed Substitution, and (2) the Loan to Value
Ratio with respect to the Substitute Mortgaged Property is equal to or less
than the Loan to Value Ratio of the Release Mortgaged Property immediately
prior to such proposed Substitution; provided that in connection with a
Collateral Pool which contains only one (1) Mortgaged Property, in the event
that more than one (1) Substitute Mortgaged Property is added in replacement of
a single Mortgaged Property, each such Substitute Mortgaged Property shall
secure the Loan and shall be cross-collateralized and cross-defaulted.


 


(B)      In the event that the
Coverage and LTV Tests for the applicable Collateral Pool are not satisfied
after the Substitution, but the Aggregate Debt Service Coverage Ratio of such
Collateral Pool shall not less than the required Aggregate Debt Service
Coverage Ratio as set forth in clause (2)(a) of the definition of Coverage and
LTV Tests for such Collateral Pool in effect on the Closing Date of the
proposed Substitution minus 0.05 (for example, if the required Aggregate Debt
Service Coverage as set forth in clause (2)(a) of the definition of Coverage
and LTV Tests for the relevant Collateral Pool on the Closing Date of the
proposed Substitution is 1.1:1.0, the Aggregate Debt Service Coverage Ratio of such
Collateral Pool on the Closing Date of the proposed Substitution may not be
less than 1.05:1.0), the applicable Collateral Pool Borrower may deposit with
Lender a Shortfall Deposit pursuant to the terms of Section 3.02(c) of
this Agreement in an amount equal to the Loans Outstanding that are required to
be repaid by the applicable Collateral Pool Borrower so that the Coverage and
LTV Tests will be satisfied. All provisions in Section 3.02(c)(ii)
pertaining to Shortfall Deposits shall apply.


 


(C)      Notwithstanding the
foregoing, the requirement that the Coverage and LTV Tests be satisfied (or
that the Aggregate Debt Service Coverage Ratio not be reduced by more than
0.05:1.0 from the required Aggregate Debt Service Coverage Ratio as set forth
in clause (2)(a) of the definition of Coverage and LTV Tests in effect on the
Closing Date


 


15

















 


of the
proposed Substitution) after the addition of a proposed Substitute Mortgaged
Property may be waived temporarily by Lender in its sole discretion, if neither
the Aggregate Debt Service Coverage Ratio will be reduced nor the Aggregate
Loan to Value Ratio for such Collateral Pool will be increased as a result of
such proposed Substitution, based on factors that are not in conflict with
Lender’s Underwriting Requirements, including but not limited to the then
current Valuation of the Mortgaged Properties in such Collateral Pool, the then
current Aggregate Debt Service Coverage Ratio of such Collateral Pool, the then
current Aggregate Loan to Value Ratio or such Collateral Pool, the strength of
the Guarantor, the quality of the market where the proposed Substituted
Mortgaged Property is located, the quality of any proposed Additional
Collateral, and the geographic distribution of the Mortgaged Properties in such
Collateral Pool at that time. Borrower shall provide a Shortfall Deposit and
otherwise comply with the provisions of Section 3.02(c)(ii).


 


(ii)           Lender shall evaluate the proposed
Substitute Mortgaged Property in accordance with the Underwriting Requirements,
including an exit analysis performed by Lender and acceptable to Fannie Mae,
and shall make underwriting determinations as to the Debt Service Coverage
Ratio and the Loan to Value Ratio of the proposed Substitute Mortgaged Property
and the Aggregate Debt Service Coverage Ratio and the Aggregate Loan to Value
Ratio for the applicable Collateral Pool on the basis of the lesser of (A) the
acquisition price of the proposed Substitute Mortgaged Property if purchased by
Borrower within twelve (12) months of the related Substitution Request, and (B)
a Valuation made with respect to the proposed Substitute Mortgaged Property.
Notwithstanding the provisions of Section 2.04 regarding the
recalculation of Valuations and the calculation of Debt Service Coverage
Ratios, for purposes of reviewing proposed Substitute Mortgaged Properties, if
Lender reasonably determines market conditions have changed in a manner
adversely affecting any of the Mortgaged Properties since the determination of
the then effective Aggregate Loan to Value Ratio for such Collateral Pool and
Aggregate Debt Service Coverage Ratio for such Collateral Pool, Lender may make
new determinations of Aggregate Debt Service Coverage Ratio and Aggregate Loan
to Value Ratio for purposes of determining whether to permit the addition of
the proposed Substitute Mortgaged Property to such Collateral Pool, which
determination shall not modify the Coverage and LTV Tests. Borrower shall
promptly provide any information reasonably required by Lender to make the
determination permitted by the preceding sentence.


 


(iii)          Within (x) in the case of a Collateral
Pool with ten (10) or fewer Mortgaged Properties, thirty (30) days, or (y) in
the case of a Collateral Pool with more than ten (10) Mortgaged Properties,
sixty (60) days after receipt of (A) the Substitution Request and (B) all
reports, certificates and documents required by the Underwriting Requirements,
Lender shall notify Borrower whether it has determined whether the proposed Substitute
Mortgaged Property meets the conditions for addition set forth in this
Agreement. Within five (5) Business Days after receipt of Lender’s written
consent to the Substitution Request, Borrower shall notify Lender in writing
whether it elects to add the proposed Substitute Mortgaged Property to such
Collateral Pool. If Borrower fails to respond within the period of five (5)
Business Days, it shall be conclusively deemed to have elected not to add the
proposed Substitute Mortgaged Property to such Collateral Pool.


 


(d)           Closing. If, pursuant to this Section
3.03, Lender determines that the conditions set forth herein for the
Substitution of the proposed Substitute Mortgaged Property


 


16

















 


into the
applicable Collateral Pool in replacement of the proposed Release Mortgaged
Property, and the applicable Collateral Pool Borrower timely elects to cause
such Substitution to occur and all conditions contained in this Section 3.03
and Section 4.01 and Section 4.04, to the extent Lender
determines such Sections are applicable, are satisfied, then the proposed
Substitute Mortgaged Property shall be substituted into such Collateral Pool in
replacement of the proposed Release Mortgaged Property, at a closing to be held
at offices designated by Lender and reasonably acceptable to the applicable
Collateral Pool Borrower on a Closing Date proposed by such Borrower and
approved by Lender, and occurring —


 


(i) if the
Substitution of the proposed Substitute Mortgaged Property is to occur
simultaneously with the release of the proposed Release Mortgaged Property,
within thirty (30) days after Lender’s receipt of the applicable Collateral
Pool Borrower’s election (or on such other date to which the applicable
Collateral Pool Borrower and Lender may agree); or


 


(ii) if the
Substitution of a proposed Substitute Mortgaged Property is to occur subsequent
to the release of the Release Mortgaged Property, within ninety (90) days after
the release of the Release Mortgaged Property (the “Property Delivery Deadline”), provided
that such Property Delivery Deadline may be extended by one (1) additional
ninety (90) day period in the event the applicable Collateral Pool Borrower
provides evidence to Lender’s satisfaction that it is diligently pursuing a
1031 exchange with respect to the proposed Substitute Mortgaged Property in
accordance with the terms of this Section 3.03(d), provided that, on a
case by case basis, Lender may consent in its sole discretion to extend the
Property Delivery Deadline by one (1) additional ninety (90) day period (for a
total of one hundred eighty (180) days if the applicable Collateral Pool
Borrower is diligently pursuing the acquisition of a proposed Substitute
Mortgaged Property that is not in connection with a 1031 exchange.


 


(e)           Substitution Deposit.


 


(i)            The Deposit. If the addition
of a proposed Substitute Mortgaged Property is to occur subsequent to the
release of the Release Mortgaged Property pursuant to Section 3.03(d),
at the Closing Date of the release of the Release Mortgaged Property, Borrower
(or in the case of a Collateral Pool with only one (1) Mortgaged Property prior
to the release, Guarantor) shall deposit with Lender the “Substitution Deposit” described in Section
3.03(e)(ii) in the form of cash or, in lieu of (and/or in addition to)
depositing cash for the Substitution Deposit, Borrower may post a Letter of
Credit in accordance with the terms of Section 4.08 of this Agreement,
having a face amount equal to the Substitution Deposit (or such lesser amount
that has been deposited in cash). In the event the Release Mortgaged Property
is intended to be sold as part of a like-kind exchange permitted under Section
1031 of the Internal Revenue Code, such Substitution Deposit shall be held by a
qualified intermediary, provided such qualified intermediary enters into
documents reasonably required by Lender assigning such Substitution Deposit to
the Lender, and providing that such qualified intermediary shall distribute the
Substitution Deposit in accordance with this Agreement. In the case of a
Collateral Pool with only one (1) Mortgaged Property prior to the release, if
the relevant Borrower is not able to remain as the obligor on the Note
evidencing the related Loan, the relevant Borrower shall provide a replacement
Borrower acceptable to Lender, which replacement Borrower shall join into the
Note until the earlier of (A) such time that the Substitute Mortgaged Property
is added to the Collateral Pool and the Additional Borrower owning such
Substitute Mortgaged Property has


 


17

















 


joined into
the Note and other related Collateral Pool Loan Documents, and (B) the date the
Note is paid in full together with all prepayment premiums due thereunder.


 


(ii)           Substitution Deposit Amount.
The “Substitution Deposit”
for each proposed Substitution shall be an amount equal to, for a Fixed Loan,
the Release Price relating to such proposed Release Mortgaged Property;
provided that in the event that the applicable Collateral Pool shall contain
only one (1) Mortgaged Property after the completion of the Substitution, the
Substitution Deposit shall be the sum of (1) all Outstanding Loans for such
Collateral Pool, plus (2) any and all of the yield maintenance or prepayment
premium for a Fixed Loan through the end of the month in which the Property
Delivery Deadline occurs as if the Fixed Loan were to be prepaid in such month,
plus (3) interest on the Fixed Loan through the end of the month in which the
Property Delivery Deadline occurs.


 


(iii)          Continued Payments on Outstanding
Notes. Such Collateral Pool Borrower shall also be obligated to make any
regularly scheduled payments of principal and interest due under the applicable
Note during any period between the closing of the Release Mortgaged Property
and the earlier of the closing of the Substitute Mortgaged Property and the
date of prepayment of the Note.


 


(iv)          Failure to Close Substitution.
If the addition of the proposed Substitute Mortgaged Property does not occur by
the Property Delivery Deadline in accordance with Section 3.03(d)(ii),
then:


 


(A)          such Collateral Pool
Borrower shall have irrevocably waived its right to substitute such Release
Mortgaged Property with a proposed Substitute Mortgaged Property, and the
release of the Release Mortgaged Property shall be deemed to require a
prepayment (or partial prepayment) of the portion of the Note equal to the
Release Price relating to the Release Mortgaged Property, together with all
yield maintenance, fee maintenance or prepayment premium then due in connection
with such payment; and


 


(B)           the applicable
Collateral Pool Borrower shall comply with the requirements set forth in Section
3.02(d) not previously satisfied with respect to the Release Mortgaged
Property, including payment of the Release Price. Such Release Price, or the
applicable portion thereof, shall be applied in the manner set forth in Section
3.02(d) and the Letter of Credit, if applicable, delivered by such Borrower
pursuant to Section 3.03(e) and Section 4.08 of this Agreement
shall be returned to Borrower. However, if such Borrower fails to timely pay
the Release Price, Lender may draw upon the Substitution Deposit in
satisfaction of such obligation.


 


(v)           Substitution Deposit Disbursement.
At closing of the Substitution, Lender shall disburse the Substitution Deposit
(including any interest accrued on such Substitution Deposit) directly to the
applicable Collateral Pool Borrower at such time as the conditions precedent
for the Substitution have been satisfied, which must occur no later than the
Property Delivery Deadline. Notwithstanding the foregoing, in the event that
the applicable Collateral Pool Borrower adds a Substitute Mortgaged Property to
such Collateral Pool prior to the Property Delivery Deadline but the addition
of such Substitute Mortgaged Property has not in


 


18

















 


and of itself
satisfied the requirements to close the Substitution, the Substitution Deposit
shall be reduced by the Allocable Loan Amount of such Substitute Mortgaged
Property as determined by Lender, and such reduction in the Substitution
Deposit shall be returned to the applicable Collateral Pool Borrower, or in the
case of a Letter of Credit, such Letter of Credit shall be reduced by such
reduction in the Substitution Deposit.


 


(f)            Conditions Precedent to
Substitutions. The obligation of Lender to make a requested Substitution is
subject to Lender’s determination that each of the conditions precedent set
forth in Section 4.01 and Section 4.04 of this Agreement have
been satisfied.


 


(g)           Restriction on Borrowings. If
the addition of the Substitute Mortgaged Property to such Collateral Pool and
the release of the Release Mortgaged Property from such Collateral Pool does
not occur simultaneously then, until the addition of the Substitute Mortgaged
Property to such Collateral Pool, the aggregate principal balance of Loans
Outstanding with respect to such Collateral Pool shall not exceed the amount of
the (i) Loans Outstanding immediately prior to the release of such Release
Mortgaged Property minus (ii) the Allocable Loan Amount of the Release
Mortgaged Property, unless the applicable Collateral Pool Borrower has
delivered additional Collateral reasonably acceptable to Lender (including
cash, letters of credit, and/or Cash Equivalents) in an amount at least equal
to such Allocable Loan Amount. If the aggregate unpaid principal balance of
Loans Outstanding exceeds the amount resulting from subtracting (i) minus (ii)
in the preceding sentence (and additional Collateral reasonably acceptable to
Lender (including cash, letters of credit, and/or Cash Equivalents) has not
been delivered by the applicable Collateral Pool Borrower to Lender), such
Collateral Pool Borrower shall repay the necessary amount as a condition precedent
to the addition of a Substitute Mortgaged Property. Any payment received by
Lender under this Section 3.03 shall be applied against Loans
Outstanding in the manner prescribed for Release Prices pursuant to Section
3.02(d). The additional Collateral shall be released to the applicable
Collateral Pool Borrower upon the addition of the applicable Substitute
Mortgaged Property to such Collateral Pool.


 


ARTICLE 4


CONDITIONS PRECEDENT TO ALL REQUESTS


 


Section
4.01.        Conditions Applicable to
All Requests.


 


The obligation
of Lender to close the transaction requested in a Request by a Collateral Pool
Borrower shall be subject to Lender’s determination that all of the following
general conditions precedent (“General
Conditions”) have been satisfied, in addition to any other
conditions precedent contained in this Agreement:


 


(a)           Payment of Expenses. The
payment by the applicable Collateral Pool Borrower of Lender’s and Fannie Mae’s
reasonable third-party out-of-pocket fees and expenses payable (without
duplication) in accordance with this Agreement, including, but not limited to,
the legal fees and expenses described in Section 8.04.


 


(b)           No Material Adverse Effect.
There has been no Material Adverse Effect on the financial condition, business
or prospects of the applicable Collateral Pool Borrower,


 


19

















 


IDOT Guarantor
or Guarantor or in the physical condition, operating performance or value of
any of the Mortgaged Properties in such Collateral Pool since the date of the
most recent Compliance Certificate (or, with respect to the Initial Loan, from
the condition, business or prospects reflected in the financial statements,
reports and other information obtained by Lender during its review of such
Borrower, IDOT Guarantor and Guarantor and the Initial Mortgaged Properties in
such Collateral Pool).


 


(c)           No Default. There shall have
been no monetary or material non-monetary Event of Default (as determined in
Lender’s sole and absolute discretion) under such Collateral Pool and there
shall exist no Event of Default or Potential Event of Default with respect to
such Collateral Pool on or before the Closing Date for the Request and, after
giving effect to the transaction requested in the Request, no Event of Default
or Potential Event of Default with respect to such Collateral Pool shall have
occurred.


 


(d)           No Insolvency. Receipt by
Lender on the Closing Date for the Request of evidence satisfactory to Lender
that none of the applicable Collateral Pool Borrower, IDOT Guarantor nor
Guarantor is insolvent (within the meaning of any applicable federal or state
laws relating to bankruptcy or fraudulent transfers) or will be rendered
insolvent by the transactions contemplated by the Loan Documents, including the
making of an Additional Fixed Loan, or, after giving effect to such
transactions, will be left with an unreasonably small amount of capital with
which to engage in its business or undertakings, or will have intended to
incur, or believe that it has incurred, debts beyond its ability to pay such
debts as they mature or will have intended to hinder, delay or defraud any
existing or future creditor.


 


(e)           Accuracy of Information. No
information, statement or report furnished in writing to Lender by the
applicable Collateral Pool Borrower or IDOT Guarantor in connection with this
Agreement or any other Loan Document with respect to such Collateral Pool or in
connection with the consummation of the transactions contemplated hereby
contains any statement which is incorrect in any material respect.


 


(f)            Representations and Warranties.
All representations and warranties made by the applicable Collateral Pool
Borrower, IDOT Guarantor and Guarantor in the Loan Documents shall be true and
correct in all material respects on the Closing Date for the Request with the
same force and effect as if such representations and warranties had been made
on and as of the Closing Date for the Request; provided, however,
that in the case of any Request occurring after the Initial Closing Date, the
date-down of such representations and warranties shall exclude Section 9
(financing information) in the Certificate of Borrower related to such
Collateral Pool and any representation or warranty contained in any of the
other Loan Documents that is solely related to an earlier date. On the Closing
Date of any Request, the applicable representations and warranties as referred
to in this Section 4.01(f) shall be deemed remade by the applicable
Collateral Pool Borrower or IDOT Guarantor.


 


(g)           No Condemnation or Casualty.
There shall not be pending or threatened any condemnation or other taking,
whether direct or indirect, against any Mortgaged Property (other than a
Release Mortgaged Property) in the applicable Collateral Pool and there shall
not have occurred any casualty to any improvements located on the Mortgaged
Property (other than a Release Mortgaged Property) in the applicable Collateral
Pool, which condemnation or


 


20

















 


casualty would
have, or reasonably may be expected to have, a Material Adverse Effect on the
Mortgaged Properties (other than the Release Mortgaged Property) in the
applicable Collateral Pool taken as a whole.


 


(h)           Delivery of Closing Documents.
The receipt by Lender of the following, each dated as of the Closing Date for
the Request, in form and substance satisfactory to Lender in all respects:


 


(i)            Fully executed original copies of
each Loan Document for such Collateral Pool required to be executed in
connection with the Request, duly executed and delivered by the parties thereto
(other than Lender), each of which shall be in full force and effect;


 


(ii)           Other than in connection with a
Release Request, a Certificate of Borrower or Certificate of IDOT Guarantor, as
applicable;


 


(iii)          A Compliance Certificate;


 


(iv)          An Organizational Certificate;


 


(v)           Such other documents, instruments,
approvals (and, if requested by Lender, certified duplicates of executed copies
thereof) and opinions as Lender may reasonably request; and


 


(vi)          Other than in connection with a
Release Request, a Confirmation of Guaranty.


 


(i)            Covenants. The applicable
Collateral Pool Borrower or IDOT Guarantor is in full compliance with each of
the covenants contained in Article 6 and Article 7 of this
Agreement, without giving effect to any notice and cure rights of Borrower.


 


(j)            Lehman Mezzanine Debt and Bank
Debt Lender Approval. The approval, to the extent required under the loan
documents evidencing the Lehman Mezzanine Debt and Bank Debt, has been
obtained.


 


Section 4.02.           Conditions
Precedent to Initial Loan.


 


The obligation
of Lender to make an Initial Loan to a Collateral Pool Borrower is subject to
Lender’s determination that each of the following conditions precedent has been
satisfied:


 


(a)           Receipt by Lender of a fully executed
Loan Request by such Collateral Pool Borrower;


 


(b)           The Coverage and LTV Tests for such
Collateral Pool are satisfied;


 


(c)           If the Initial Loan is a Variable
Loan to such Collateral Pool Borrower, receipt by Lender at least three (3)
days prior to the Initial Closing Date, of the confirmation of an Interest Rate
Hedge commitment, in accordance with the Hedge Security Agreement,


 


21

















 


effective as
of the Initial Closing Date with a term ending no earlier than the Variable
Loan maturity date;


 


(d)           If the Initial Loan to such
Collateral Pool Borrower is a Variable Loan, receipt by Lender of Interest Rate
Hedge Documents and an executed Hedge Security Agreement, each effective as of
the Initial Closing Date with a term ending no earlier than the Variable Loan
maturity date;


 


(e)           Delivery to the Title Company, for
filing and/or recording in all applicable jurisdictions, of all applicable Loan
Documents required by Lender, including duly executed and delivered original
copies of the Variable Loan Note (if applicable for such Collateral Pool),
and/or a Fixed Loan Note (if applicable for such Collateral Pool), a Guaranty,
the Initial Security Instruments covering the Initial Mortgaged Properties in
such Collateral Pool and UCC-1 Financing Statements covering the portion of the
Collateral in such Collateral Pool comprised of personal property, and other
appropriate instruments, in form and substance reasonably satisfactory to
Lender and in form proper for recordation, as may be necessary in the
reasonable opinion of Lender to perfect the Liens created by the applicable
Security Instruments and any other Loan Documents for such Collateral Pool
creating a Lien in favor of Lender, and the payment of all taxes, fees and
other charges payable in connection with such execution, delivery, recording
and filing;


 


(f)            Intentionally Omitted


 


(g)           Receipt by Lender of all reasonable
legal fees and expenses payable by the applicable Collateral Pool Borrower in
connection with the Initial Loan;


 


(h)           Receipt by Lender of evidence that
the Bank Debt and Lehman Mezzanine Debt or an equivalent amount of equity is in
place and has been advanced to the extent necessary to effect the transactions
contemplated hereby and under the documents evidencing the Bank Debt and the
Lehman Mezzanine Debt;


 


(i)            Receipt by Lender of an acceptable
Intercreditor Agreement on a Fannie Mae approved form with respect to the
Lehman Mezzanine Debt and the Bank Debt;


 


(j)            If required by Lender, receipt by
Lender of an acceptable cash management agreement on a Fannie Mae approved
form.


 


Section 4.03.           Conditions
Precedent to Additional Fixed Loans.


 


The obligation
of Lender to make a requested Additional Fixed Loan to a Collateral Pool
Borrower is subject to each of the following conditions precedent:


 


(a)           Such request shall not be applicable
to any Collateral Pool that secures a Variable Loan;


 


(b)           Receipt by Lender of the fully
executed Loan Request;


 


22
















 


(c)           Delivery by Lender to
the applicable Collateral Pool Borrower of the Rate Form for the Additional
Fixed Loan;


 


(d)           After giving effect to
the requested Additional Fixed Loan, the Aggregate Debt Service Coverage Ratio
and Aggregate Loan to Value Ratio tests set forth in Section 2.05 shall
be satisfied;


 


(e)           Delivery of a Fixed
Loan Note, duly executed by Collateral Pool Borrower, in the amount and
reflecting all of the terms of the Additional Fixed Loan;


 


(f)            Receipt by Lender of
the Re-Underwriting Fee;


 


(g)           Receipt by Lender of
the Origination Fee;


 


(h)           Receipt by Lender of
all reasonable legal fees and expenses payable by the applicable Collateral
Pool Borrower in connection with the Loan Request;


 


(i)            No Governmental
Approval not already obtained or made is required for the execution and
delivery of the documents to be delivered in connection with the Additional Fixed
Loan;


 


(j)            The applicable
Collateral Pool Borrower, IDOT Guarantor or Guarantor is not under any cease or
desist order or other orders of a similar nature, temporary or permanent of any
Governmental Authority which would have the effect of preventing or hindering performance
of the terms and provisions of the Agreement or any other Loan Documents for such
Collateral Pool, nor are there any proceedings presently in progress or, to its
knowledge, contemplated which, if successful, would lead to the issuance of any
such order;


 


(k)           Receipt by Lender of a
Confirmation of Guaranty; and


 


(l)            Receipt by Lender of
an endorsement to each Title Insurance Policy, amending the effective date of
the Title Insurance Policy to the Closing Date, increasing the limits of
liability to the total aggregate Loans Outstanding secured by such Collateral
Pool (or such other amount agreed by Lender) showing no additional exceptions
to coverage other than the exceptions shown on the Initial Closing Date (or, if
applicable, the last Closing Date with respect to which the Title Insurance
Policy was endorsed) and other than Permitted Liens and other exceptions
approved by Lender, together with any reinsurance agreements required by Lender.


 


Section 4.04.            Conditions
Precedent to Release of Property from the Collateral Pool.


 


The obligation
of Lender to release a Mortgaged Property from a Collateral Pool by executing
and delivering the Release Documents on the Closing Date is subject to Lender’s
determination that each of the following conditions precedent has been
satisfied:


 


(a)           The requirements of Section
3.03(c), as applicable, will be satisfied;


 


23

















 


(b)           Receipt by Lender of
the Re-Underwriting Fee;


 


(c)           Receipt by Lender of
the Release Price;


 


(d)           Receipt by Lender of
the Release Fee;


 


(e)           Receipt by Lender on
the Closing Date of one (1) or more counterparts of each Release Document,
dated as of the Closing Date, signed by each of the parties (other than Lender)
who is a party to such Release Document;


 


(f)            If required by Lender,
amendments to the Notes and the Security Instruments, reflecting the release of
the Release Mortgaged Property from the applicable Collateral Pool and, as to
any Security Instrument so amended, the receipt by Lender of an endorsement to
the Title Insurance Policy insuring the Security Instrument, amending the effective
date of the Title Insurance Policy to the Closing Date and showing no
additional exceptions to coverage other than Permitted Liens;


 


(g)           If Lender determines
the Release Mortgaged Property to be one (1) phase of a project, and one (1) or
more other phases of the project are Mortgaged Properties which will remain in
such Collateral Pool (“Remaining Mortgaged
Properties”), Lender must determine that the Remaining Mortgaged
Properties can be operated separately from the Release Mortgaged Property and
any other phases of the project which are not Mortgaged Properties in such
Collateral Pool and whether any cross use agreements or easements are
necessary. In making this determination, Lender shall evaluate access,
utilities, marketability, community services, ownership and operation of the
Release Mortgaged Properties and any other issues identified by Lender in
connection with similar loans anticipated to be sold to Fannie Mae;


 


(h)           Receipt by Lender of
endorsements to the tie-in endorsements of the Title Insurance Policies, if
deemed necessary by Lender, to reflect the release. Notwithstanding anything to
the contrary herein, no release of any Mortgaged Property in a Collateral Pool
shall be made unless the applicable Collateral Pool Borrower has provided title
insurance to Lender in respect of each of the Remaining Mortgaged Properties in
such Collateral Pool in an amount equal to (i) one hundred ten percent (110%)
of the Initial Valuation of such Mortgaged Properties (taking into account the
title insurance coverage provided by “tie-in” endorsements, if available) and,
(ii) in the case of the Mortgaged Properties located in states where tie-in endorsements
are not available, one hundred ten (110%) of the Valuation of such Mortgaged Properties;


 


(i)            Receipt by Lender on
the Closing Date of a Confirmation of Obligations, dated as of the Closing
Date, signed by the applicable Collateral Pool Borrower, IDOT Guarantor and
Guarantor, pursuant to which such Borrower, IDOT Guarantor and Guarantor confirm
their obligations under the Loan Documents to which they are a party; and


 


(j)            Receipt by Lender of
all reasonable legal fees and expenses payable by the applicable Collateral
Pool Borrower in connection with the Release Request.


 


24

















 


Section 4.05.             Conditions
Precedent to Substitution of a Substitute Mortgaged Property to the Collateral
Pool.


 


Each
Substitution is subject to Lender’s determination that each of the following conditions
precedent has been satisfied:


 


(a)           The Underwriting
Requirements will be satisfied with respect to the Substitute Mortgaged
Property;


 


(b)           The requirements of Section
3.03(c), as applicable, will be satisfied;


 


(c)           Receipt by Lender of
the Substitution Fee;


 


(d)           Receipt by Lender of
all reasonable legal fees and expenses payable by the applicable Collateral
Pool Borrower in connection with the Substitution Request;


 


(e)           Receipt by Lender of
the Re-Underwriting Fee;


 


(f)            Delivery to the Title
Company, with fully executed instructions directing the Title Company to file
and/or record in all applicable jurisdictions, all applicable Substitution Loan
Documents for such Collateral Pool required by Lender, including duly executed
and delivered original copies of any Security Instruments and UCC-1 Financing
Statements covering the portion of the Substitute Mortgaged Property comprised
of personal property, and other appropriate documents, in form and substance
reasonably satisfactory to Lender and in form proper for recordation, as may be
necessary in the reasonable opinion of Lender to perfect the Lien created by
the applicable additional Security Instrument, and any other Substitute Loan Document
for such Collateral Pool creating a Lien in favor of Lender, and the payment of
all taxes, fees and other charges payable in connection with such execution,
delivery, recording and filing;


 


(g)           If required by Lender,
amendments to the Notes and the Security Instruments, reflecting the addition
of any Additional Borrower, Additional IDOT Guarantor and/or the Substitute
Mortgaged Property to such Collateral Pool and, as to any Security Instrument
so amended, the receipt by Lender of an endorsement to the Title Insurance
Policy insuring the Security Instrument, amending the effective date of the
Title Insurance Policy to the Closing Date and showing no additional exceptions
to coverage other than Permitted Liens; and


 


(h)           If the Title Insurance
Policy for the Substitute Mortgaged Property contains a tie-in endorsement, an
endorsement to each other Title Insurance Policy for the Mortgaged Properties
in the same Collateral Pool containing a tie-in endorsement, adding a reference
to the Substitute Mortgaged Property.


 


Section 4.06.           Delivery of Opinion
Relating to Loan Request or Substitution Request.


 


With respect
to the closing of a Loan Request or a Substitution Request, it shall be a condition
precedent that Lender receives each of the following, each dated as of the
Closing Date for the Request, in form and substance satisfactory to Lender in
all respects, opinions of counsel


 


25

















 


(including
local counsel, as applicable) to the applicable Collateral Pool Borrower, IDOT Guarantor
and Guarantor, as to the due organization and qualification of the applicable
Collateral Pool Borrower, IDOT Guarantor and Guarantor, the due authorization,
execution, delivery and enforceability of each Loan Document for such
Collateral Pool executed in connection with the Request and such other matters
as Lender may reasonably require, each dated as of the Closing Date for the
Request, in form and substance satisfactory to Lender in all respects.


 


Section 4.07.            Delivery of
Property-Related Documents.


 


With respect
to each of the Initial Mortgaged Properties or a Substitute Mortgaged Property,
it shall be a condition precedent that Lender receive from the applicable
Collateral Pool Borrower or IDOT Guarantor each of the documents and reports
required by Lender pursuant to the Underwriting Requirements in connection with
the pledge of such Mortgaged Property and, each of the following, each dated
(where possible) as of the Closing Date for the Initial Mortgaged Property or a
Substitute Mortgaged Property, as the case may be, in form and substance
satisfactory to Lender in all respects:


 


(a)           A commitment for the
Title Insurance Policy applicable to the Mortgaged Property and a pro forma
Title Insurance Policy based on such commitment.


 


(b)           The Insurance Policy
(or a certified copy of the Insurance Policy) applicable to the Mortgaged
Property.


 


(c)           The Survey applicable
to the Mortgaged Property (which shall be last revised no less than ninety (90)
days prior to the Closing Date).


 


(d)           Evidence reasonably
satisfactory to Lender of compliance of the Mortgaged Property with Property
Laws.


 


(e)           An Appraisal of the
Mortgaged Property.


 


(f)            A Replacement Reserve
Agreement, providing for the establishment of a replacement reserve account, to
be pledged to Lender, in which the owner shall (unless waived by Lender)
periodically deposit amounts for replacements for improvements at the Mortgaged
Property and as additional security for the applicable Collateral Pool Borrower’s
or IDOT Guarantor’s, if applicable, obligations under the Loan Documents.


 


(g)           A Completion/Repair and
Security Agreement, if required by Lender, together with required escrows, on
the standard form required by Lender.


 


(h)           An Assignment of
Management Agreement, on the standard form required by Lender.


 


(i)            An Assignment of
Leases and Rents, if Lender determines one to be necessary or desirable,
provided that the provisions of any such assignment shall be substantively identical
to those in the Security Instrument covering the Collateral, with such
modifications as may be necessitated by applicable state or local law.


 


26

















 


(j)            A Certificate of
Borrower.


 


(k)           If applicable, a fully
executed Master Lease and an estoppel certificate and subordination agreement
with respect to each Master Lease, each in substantially the form attached to
this Agreement as EXHIBIT Q.


 


(l)            If applicable, a fully
executed ground lease and an estoppel certificate with respect to each ground
lease, each in form and substance acceptable to Lender.


 


(m)          Copies of each
commercial lease affecting a Mortgaged Property and, if required by Lender, a
tenant estoppel certificate and subordination, non-disturbance and attornment
agreement, each in form and substance satisfactory to Lender.


 


(n)           Copies of homeowners
associations, easement, declarations and similar agreements affecting any
Mortgaged Property and, if required by Lender, an estoppel certificate with
respect to such agreements in form and substance satisfactory to Lender.


 


Section
4.08.        Conditions
Precedent to Letters of Credit.


 


The right or
requirement of a Collateral Pool Borrower to provide a Letter of Credit in connection
with this Agreement is subject to Lender’s determination that each of the
following conditions precedent has been satisfied:


 


(a)           Letter of Credit
Requirements. If such Collateral Pool Borrower provides Lender with a
Letter of Credit pursuant to this Agreement, the Letter of Credit shall be in
form and substance satisfactory to Lender and Lender shall be entitled to draw
under such Letter of Credit solely upon presentation of a sight draft to the
LOC Bank. Any Letter of Credit shall be for a term of at least three hundred
sixty-four (364) days (provided that in connection with a Substitution, the
term of any Letter of Credit shall be at least until the Property Delivery Deadline).
Any Letter of Credit shall be issued by a financial institution satisfactory to
Lender and shall have its long-term debt obligations rated at least “A” or an
equivalent rating by S&P and Moody’s and its short-term debt obligations
rated “A-1” / “P-1” or an equivalent rating by S&P and by Moody’s (the “Issuer”).


 


(b)           Draws Under Letter
of Credit. Lender shall have the right in its sole discretion to draw
monies under the Letter of Credit:


 


(i)            upon the occurrence of
an Event of Default under such Collateral Pool;


 


(ii)           if thirty (30) days
prior to the expiration of the Letter of Credit, either the Letter of Credit
has not been extended for a term of at least three hundred sixty-four (364)
days (provided that in connection with a Substitution, the term of any Letter
of Credit shall be at least until the Property Delivery Deadline) or such
Collateral Pool Borrower has not replaced the Letter of Credit with substitute
cash collateral in the amount required by Lender; or


 


(iii)          upon the downgrading of
the long-term obligations of the LOC Bank below “A” or an equivalent rating by
either Rating Agency or short-term debt below “A-


 


27

















 


1”/”P-1” or an
equivalent rating by either Rating Agency; provided that Borrower shall have
ten (10) Business Days after notice of such downgrading to deliver to Lender
either (A) an acceptable replacement Letter of Credit or (B) substitute cash
collateral in the amount required by Lender.


 


(c)           Deposit to Cash
Collateral Agreement. If Lender draws under the Letter of Credit pursuant
to Section 4.08(b)(ii) or (iii) above, Lender shall deposit
such draw monies into the Cash Collateral Account provided any interest thereon
shall inure to the benefit of Borrower.


 


(d)           Default Draws.
If Lender draws under the Letter of Credit pursuant to Section 4.08(b)(i)
above, Lender may in its sole discretion use monies drawn under the Letter of Credit
for any of the following purposes:


 


(i)            to pay any amounts
required to be paid by the applicable Collateral Pool Borrower under the Loan
Documents (including, without limitation, any amounts required to be paid to
Lender under this Agreement);


 


(ii)           to (on such Collateral
Pool Borrower’s behalf, or on its own behalf if Lender becomes the owner of the
Mortgaged Property) pre-pay any Note;


 


(iii)          to make repairs required
to address emergency or life and safety conditions to any Mortgaged Property in
such Collateral Pool; or


 


(iv)          deposit monies into the
Cash Collateral Account.


 


(e)           Legal Opinion.
Prior to or simultaneous with the delivery of any new Letter of Credit (but not
the extension of any existing Letter of Credit), such Collateral Pool Borrower
shall cause the LOC Bank’s counsel to deliver a legal opinion in a customary
form satisfactory to Lender.


 


ARTICLE 5


REPRESENTATIONS AND WARRANTIES


 


Section
5.01.        Representations
and Warranties of Borrower.


 


The
representations and warranties of each Borrower, IDOT Guarantor and Guarantor
are contained in various Certificates of Borrower, the form of which is
attached to this Agreement as Exhibit L and Guaranty.


 


Section
5.02.        Representations
and Warranties of Lender.


 


Lender hereby
represents and warrants to each Borrower as follows:


 


(a)           Due Organization.
Lender is a corporation duly organized, validly existing and in good standing
under the laws of Delaware.


 


28

















 


(b)           Power and Authority.
Lender has the requisite power and authority to execute and deliver this
Agreement and to perform its obligations under this Agreement.


 


(c)           Due Authorization.
The execution and delivery by Lender of this Agreement, and the consummation by
it of the transactions contemplated thereby, and the performance by it of its
obligations thereunder, have been duly and validly authorized by all necessary
action and proceedings by it or on its behalf.


 


ARTICLE 6


AFFIRMATIVE COVENANTS OF BORROWER


 


Each Borrower
agrees and covenants with Lender that, at all times during the Term of this
Agreement:


 


Section
6.01.        Compliance
with Agreements.


 


Each Borrower,
IDOT Guarantor and Guarantor shall comply with all the terms and conditions of
each Loan Document to which it is a party or by which it is bound; provided, however,
that Borrower’s, IDOT Guarantor’s or Guarantor’s failure to comply with such
terms and conditions shall not be an Event of Default until the expiration of
the applicable notice and cure periods, if any, specified in the applicable
Loan Document.


 


Section
6.02.        Maintenance
of Existence.


 


Each Borrower
Party shall maintain its existence and continue to be duly organized under the
laws of the state of its organization. Each Borrower Party shall continue to be
duly qualified to do business in each jurisdiction in which such qualification
is necessary to the conduct of its business and where the failure to be so
qualified would adversely affect the validity of, the enforceability of, or the
ability to perform, its obligations under this Agreement or any other Loan
Document to which it is a party or by which it is bound.


 


Section
6.03.        Financial
Statements; Accountants’ Reports; Other Information.


 


Each Borrower,
IDOT Guarantor and Guarantor shall keep and maintain at all times complete and
accurate books of accounts and records in sufficient detail to correctly
reflect (i) all of Borrower’s, IDOT Guarantor’s and Guarantor’s financial
transactions and assets and (ii) the results of the operation of each Mortgaged
Property in the applicable Collateral Pool and copies of all written contracts,
Leases and other instruments which affect each Mortgaged Property in the
applicable Collateral Pool (including all bills, invoices and contracts for
electrical service, gas service, water and sewer service, waste management
service, telephone service and management services). In addition, each
Borrower, IDOT Guarantor and Guarantor shall furnish, or cause to be furnished,
to Lender:


 


(a)           Annual Combined
Financial Statements. As soon as available, and in any event within ninety
(90) days after the close of its fiscal year during the Term of this Agreement,
the audited combined balance sheet of the Guarantors as of the end of such
fiscal year, the audited combined statement of operations and the audited
combined statement of cash flows of each Guarantor for such fiscal year, all in
reasonable detail and, commencing in the second fiscal


 


29

















 


year during
the Term of this Agreement, stating in comparative form (solely to the extent
such previous year ended after the Initial Closing Date) the respective figures
for the corresponding date and period in the prior fiscal year, prepared in
accordance with GAAP consistently applied and accompanied by an independent
auditor’s report stating that the referenced financial statements present
fairly, in all material respects, the combined financial position, results of operations
and cash flows as of and for the applicable periods in conformity with GAAP,
with such certification to be free of exceptions and qualifications as to the
scope of the audit as to the going concern nature of the business. Such
combined audited financial statements will be accompanied by an audited
combined supplemental schedule of real estate by property as of the end of the
fiscal year and a combined supplemental schedule of rental revenues and rental expenses
by property. The combined totals of these supplemental schedules will reconcile
to the audited balance sheet and statement of operations for the fiscal year,
respectively.


 


(b)           Quarterly Financial
Statements. As soon as available, and in any event within sixty (60) days
after each of the first three fiscal quarters of each fiscal year during the Term
of this Agreement, the unaudited combined balance sheet of the Guarantors as of
the end of such fiscal quarter, the unaudited statement of operations and the
unaudited statements of cash flows of each Guarantor for the portion of the
fiscal year ended with the last day of such quarter, all prepared in accordance
with GAAP and in reasonable detail and, commencing in the second fiscal year
during the Term of this Agreement, stating in comparative form (solely to the
extent such previous year ended after the Initial Closing Date) the respective
figures for the corresponding date and period in the previous fiscal year,
accompanied by a certificate of an authorized representative of the Guarantor,
stating that the referenced financial statements present fairly, in all
material respects and subject to year-end adjustments, the financial position, results
of operations and cash flows for the applicable periods in conformity with
GAAP.


 


(c)           Quarterly Property
Statements. As soon as available, and in any event within sixty (60) days
after each of the first three Calendar Quarters, a statement of income and expenses
of each Mortgaged Property in such Collateral Pool prepared in accordance with GAAP
and accompanied by a certificate of an authorized representative of each
Borrower, each IDOT Guarantor and each Guarantor reasonably acceptable to
Lender to the effect that each such statement of income and expenses fairly,
accurately and completely presents the operations of each such Mortgaged
Property for the period indicated.


 


(d)           Annual Property
Statements. On an annual basis within ninety (90) days after the close of
its fiscal year, an annual statement of income and expenses of each Mortgaged Property
in such Collateral Pool prepared in accordance with GAAP and accompanied by a certificate
of an authorized representative of each Borrower, each IDOT Guarantor and each Guarantor
reasonably acceptable to Lender to the effect that each such statement of
income and expenses fairly, accurately and completely presents the operations
of each such Mortgaged Property for the period indicated.


 


(e)           Updated Rent Rolls.
Upon Lender’s request (but not more frequently than quarterly), a current Rent
Roll for each Mortgaged Property owned by such Borrower or IDOT Guarantor,
showing the name of each tenant, and for each tenant, the space occupied, the
lease expiration date, the rent payable, the rent paid and any other
information requested by Lender and accompanied by a certificate of an
authorized representative of each Borrower, each IDOT


 


30

















 


Guarantor and
each Guarantor reasonably acceptable to Lender to the effect that each such
Rent Roll fairly, accurately and completely presents the information required
therein as of its date.


 


(f)            Security Deposit
Information; Operating Accounts Information. Upon Lender’s request (but not
more frequently than once each Calendar Quarter) an accounting of all security
deposits held in connection with any Lease of any part of any Mortgaged
Property in such Collateral Pool, 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 and telephone number of the person to contact at such financial
institution, along with any authority or release necessary for Lender to access
information regarding such accounts.


 


(g)           Accountants’
Reports; Other Reports. Promptly upon receipt or preparation thereof: (i)
copies of any final reports and management letters submitted to Borrower, IDOT
Guarantor or Guarantor by its independent certified public accountants in connection
with the examination of its financial statements made by such accountants
(except for reports otherwise provided pursuant to subsection (a) above);
provided, however, that Borrower, IDOT Guarantor or Guarantor shall only be
required to deliver such reports and management letters to the extent that they
relate to Borrower, IDOT Guarantor or Guarantor or any Mortgaged Property in
such Collateral Pool; and (ii) all schedules, financial statements or other
similar reports delivered by Borrower, IDOT Guarantor or Guarantor pursuant to
the Loan Documents or requested by Lender with respect to Borrower Parties’
business affairs or condition (financial or otherwise) or any of the Mortgaged
Properties in such Collateral Pool.


 


(h)           Annual Budgets.
Promptly, and in any event within sixty (60) days after the start of its fiscal
year, an annual budget for each Mortgaged Property in such Collateral Pool for
such fiscal year, setting forth an estimate of all of the costs and expenses,
including capital expenses, of maintaining and operating each such Mortgaged
Property.


 


(i)            Security Law Reporting
Information. If any Borrower Party is or becomes a public company, promptly
upon the mailing thereof, (A) copies of all financial statements, reports and
proxy statements sent or made available generally by such Borrower Party, or
any of their Affiliates, to their respective security holders, and (B) all
press releases and other statements made available generally by such Borrower
Party, or any of their Affiliates, to the public concerning material
developments in the business of Borrower Party or other party. Promptly upon
the filing thereof, all regular and periodic reports and all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or a similar form) and prospectuses, if any, filed by Borrower Party,
or any of their Affiliates, with the Securities and Exchange Commission or
other Governmental Authorities. Notwithstanding the foregoing, for so long as
the statements, reports, filings, and prospectus required pursuant to this Section
6.03(i) are available for public review, Borrower Parties shall not be
required to separately deliver such items to Lender.


 


(j)            Confidentiality of
Certain Information. Borrower Parties shall not disclose any terms,
conditions, underwriting requirements or underwriting procedures of the Credit
Facility or any of the Loan Documents; provided, however, that such
confidential information may be disclosed (A) as required by law or pursuant to
generally accepted 


 


31

















 


accounting procedures,
(B) to direct or indirect owners of any Borrower Party, officers, directors, employees,
agents, partners, attorneys, accountants, engineers and other consultants of
Borrower Parties who need to know such information, provided such Persons are
instructed to treat such information confidentially, (C) to any regulatory
authority having jurisdiction over a Borrower Party, (D) in connection with any
filings with the Securities and Exchange Commission or other Governmental
Authorities, or (E) to any other Person to which such delivery or disclosure
may be necessary or appropriate (1) in compliance with any law, rule,
regulation or order applicable to a Borrower Party, (2) in response to any
subpoena or other legal process or information investigative demand or (3) in
connection with any litigation to which such Borrower Party is a party.


 


(k)           Ownership Interests.
Within one hundred twenty (120) days after the end of each fiscal year of each
Borrower, each IDOT Guarantor and each Guarantor and at any other time upon
Lender’s request, a statement that identifies all owners of any interest in
each Borrower, each IDOT Guarantor and each Guarantor and the interest held by
each, if Borrower or IDOT Guarantor is a corporation, all officers and
directors of Borrower or IDOT Guarantor, and if Borrower, IDOT Guarantor or
Guarantor is a limited liability company, all managers who are not members;
provided, however, that Borrower, IDOT Guarantor and Guarantor shall not be required
to identify limited partners or non-managing members of such Borrower, IDOT Guarantor
and Guarantor, and provided further that nothing in this Section 6.03(k)
shall affect the obligations to provide disclosure and obtain Lender consents
in connection with transfers of Ownership Interests as set forth in Section
6.13.


 


(l)            Federal Tax Returns.
Within thirty (30) days of filing, the Federal Tax Return of Borrower, IDOT
Guarantor and Guarantor.


 


Section
6.04.        Access
to Records; Discussions With Officers and Accountants.


 


To the extent
permitted by law and in addition to the applicable requirements of the Security
Instruments, each Borrower shall permit Lender to and shall cause IDOT
Guarantor to:


 


(a)           inspect, make copies
and abstracts of, and have reviewed or audited, such of Borrower’s, IDOT Guarantor’s
or Guarantor’s books and records as may relate to the Obligations or any
Mortgaged Property;


 


(b)           at any time discuss
Borrower’s or IDOT Guarantor’s affairs, finances and accounts with Senior
Management or Borrower’s or IDOT Guarantor’s property managers and independent
public accountants, provided that a responsible officer of ASOT has been given
the opportunity to be a party to such discussions; after an Event of Default,
discuss Borrower’s or IDOT Guarantor’s affairs, finances and account with Guarantor’s
officers, partners and employees;


 


(c)           discuss the Mortgaged
Properties’ conditions, operations or maintenance with the property managers of
such Mortgaged Properties, provided that a responsible officer of ASOT has been
given the opportunity to be a party to such discussions, and the officers and employees
of Borrower, IDOT Guarantor and Guarantor; and


 


32

















 


(d)           receive any other
information that Lender reasonably deems necessary or relevant in connection
with any Loan, any Loan Document or the Obligations from the officers of
Borrower or IDOT Guarantor or officers and employees of Property Manager,
provided that a responsible officer of ASOT has been given the opportunity to
be a party to such discussions. Notwithstanding the foregoing, prior to an
Event of Default or Potential Event of Default under such Collateral Pool and
in the absence of an emergency, all inspections shall be conducted at reasonable
times during normal business hours upon reasonable notice to the applicable Collateral
Pool Borrower.


 


Section
6.05.        Certificate
of Compliance.


 


The applicable
Collateral Pool Borrower shall deliver to Lender concurrently with the delivery
of the financial statements and/or reports required by Section 6.03(a)
and Section 6.03(b) a certificate signed by an authorized representative
(provided that such authorized representative shall have no personal liability
in connection with such certificate) of such Borrower or Guarantor reasonably
acceptable to Lender (i) setting forth in reasonable detail the calculations
required to establish whether such Collateral Pool Borrower and Guarantor were
in compliance with the requirements of Article 6 of this Agreement on
the date of such financial statements, and (ii) stating that, to the best
knowledge of such individual following reasonable inquiry, no Event of Default
or Potential Event of Default has occurred with respect to such Collateral
Pool, or if an Event of Default or Potential Event of Default has occurred with
respect to such Collateral Pool, specifying the nature thereof in reasonable
detail and the action such Collateral Pool Borrower is taking or proposes to
take. Any certificate required by this Section 6.05 shall run directly
to and be for the benefit of Lender and Fannie Mae.


 


Section
6.06.        Maintain
Licenses, Permits, Etc.


 


Each Borrower
and IDOT Guarantor shall procure and maintain in full force and effect all
licenses, Permits, charters and registrations which are material to the conduct
of its business.


 


Section
6.07.        Inform
Lender of Material Events.


 


Each Borrower
shall promptly inform Lender in writing of any of the following (and shall deliver
to Lender copies of any related written communications, complaints, orders,
judgments and other documents relating to the following) of which such Borrower
has actual knowledge:


 


(a)           Defaults. The
occurrence of any Event of Default or any Potential Event of Default by such
Collateral Pool Borrower or IDOT Guarantor under this Agreement or any other
Loan Document with respect to its Collateral Pool;


 


(b)           Regulatory
Proceedings. The commencement of any rulemaking or disciplinary proceeding
or the promulgation of any proposed or final rule which would have, or may
reasonably be expected to have, a Material Adverse Effect; the receipt of
notice from any Governmental Authority having jurisdiction over such Borrower,
IDOT Guarantor or Guarantor that (i) such Borrower, IDOT Guarantor, or
Guarantor is being placed under regulatory supervision, (ii) any license,
Permit, charter, membership or registration material to the conduct of such
Borrower’s, IDOT Guarantor’s or Guarantor’s business or the Mortgaged
Properties in


 


33

















 


such
Collateral Pool is to be suspended or revoked or (iii) such Borrower, IDOT
Guarantor or Guarantor is to cease and desist any practice, procedure or policy
employed by such Borrower, IDOT Guarantor or Guarantor in the conduct of its
business, and with respect to (i), (ii) or (iii) the same would have, or may
reasonably be expected to have, a Material Adverse Effect;


 


(c)           Bankruptcy
Proceedings. The commencement of any proceedings by or against such
Borrower, IDOT Guarantor or Guarantor under any applicable bankruptcy, reorganization,
liquidation, insolvency or other similar law now or hereafter in effect or of
any proceeding in which a receiver, liquidator, trustee or other similar
official is sought to be appointed for it;


 


(d)           Environmental Claim.
The receipt from any Governmental Authority or other Person of any notice of
violation, claim, demand, abatement, order or other order or direction
(conditional or otherwise) for any damage, including personal injury (including
sickness, disease or death), tangible or intangible property damage,
contribution, indemnity, indirect or consequential damages, damage to the
environment, pollution, contamination or other adverse effects on the
environment, removal, cleanup or remedial action or for fines, penalties or restrictions,
resulting from or based upon (i) the existence or occurrence, or the alleged
existence or occurrence, of a Hazardous Substance Activity on any Mortgaged
Property in the applicable Collateral Pool in violation of any law or (ii) the
violation, or alleged violation, of any Hazardous Materials Laws in connection
with any Mortgaged Property in such Collateral Pool or any of the other assets
of such Borrower or IDOT Guarantor;


 


(e)           Material Adverse
Effects. The occurrence of any act, omission, change or event (including
the commencement of any proceedings by or against such Borrower, IDOT Guarantor
or Guarantor in any Federal, state or local court, or before any Governmental Authority,
or before any arbitrator), which has, or may reasonably be expected to have, a Material
Adverse Effect, subsequent to the date of the most recent audited financial
statements of Guarantor, Borrower or IDOT Guarantor delivered to Lender
pursuant to Section 6.03; and


 


(f)            Accounting Changes.
Any material change in such Borrower’s, IDOT Guarantor’s or Guarantor’s accounting
policies or financial reporting practices not already reported in the financial
statements delivered pursuant to Section 6.03.


 


Section
6.08.        Compliance
with Applicable Laws.


 


Each
Collateral Pool Borrower or IDOT Guarantor shall comply in all material
respects with all Applicable Laws now or hereafter affecting any Mortgaged
Property in such Collateral Pool or any part of any Mortgaged Property in such
Collateral Pool or requiring any alterations, repairs or improvements to any
Mortgaged Property in such Collateral Pool. The applicable Collateral Pool
Borrower or IDOT Guarantor shall comply with all written notices from Governmental
Authorities.


 


Section
6.09.        Alterations
to the Mortgaged Properties.


 


Except as
otherwise provided in the applicable Loan Documents, Borrower and IDOT Guarantor
shall have the right to undertake any alteration, improvement, demolition,
removal or


 


34

















 


construction
(collectively, “Alterations”)
to the Mortgaged Property which it owns without the prior consent of Lender; provided,
however, that in any case, no such Alteration shall be made to any
Mortgaged Property without the prior written consent of Lender if (i) such
Alteration could reasonably be expected to adversely affect the value of such
Mortgaged Property or its operation as a Multifamily Residential Property in
substantially the same manner in which it is being operated on the date such
property became Collateral, (ii) the construction of such Alteration could
reasonably be expected to result in interference to the occupancy of tenants of
such Mortgaged Property such that tenants in occupancy with respect to five
percent (5%) or more of the Leases (or Residential Agreements, if applicable)
would be permitted to terminate their Leases (or Residential Agreements, if
applicable) or to abate the payment of all or any portion of their rent, or
(iii) such Alteration will be completed in more than twelve (12) months from
the date of commencement or in the last year of the Term of this Agreement.
Notwithstanding the foregoing, unless required by law or court order, Borrower
or IDOT Guarantor must obtain Lender’s prior written consent to construct
Alterations with respect to the Mortgaged Property costing in excess of, with
respect to any Mortgaged Property, $500,000. Borrower or IDOT Guarantor must
give prior written notice to Lender of its intent to construct any Alterations required
by law or court order (regardless of cost) or Alterations with respect to such
Mortgaged Property costing in excess of $200,000 (the Lender shall be deemed to
have received such notice from Borrower or IDOT Guarantor with respect to any
Alteration costing in excess of $200,000 up to and including $500,000 if
Borrower includes such Alteration in the budget for the applicable fiscal year
required to be delivered by Borrower or IDOT Guarantor pursuant to Section
6.03(h)); provided, however, that the preceding requirements shall not be
applicable to Alterations made, conducted or undertaken by Borrower or IDOT
Guarantor as part of Borrower’s or IDOT Guarantor’s routine maintenance and
repair of the Mortgaged Properties as required by the Loan Documents. Borrower
or IDOT Guarantor may, on an annual basis, obtain the prior consent of Lender
to undertake, during a fiscal year, Alterations that require Lender’s consent
pursuant to this Section 6.09 by including in the annual budget for such
fiscal year delivered by Borrower or IDOT Guarantor pursuant to Section 6.03
the following information: (A) the identity of the Mortgaged Property or
Properties affected by such Alterations, a description of the Alterations to be
undertaken, a proposed time schedule for the performance of such Alterations,
and a description of the expenses shown in the annual budget that pertain to such
Alterations; (B) a description of the number of units that will be affected by
such Alterations, the time period that any or all of such units will not be
available for occupancy, and an estimate of the loss revenue that will result
therefrom; and (C) a request, in writing that Lender consent, in advance, to
the undertaking of such specified Alterations. Within twenty (20) days after
receipt of any such request, Lender shall approve or disapprove such request in
writing and, if Lender disapproves such request, it will provide Borrower or
IDOT Guarantor with a brief statement of the reasons for such disapproval. If
Lender does not either approve or disapprove such request within such twenty
(20) day period, such request shall be deemed approved.


 


Section
6.10.        Loan
Document Taxes.


 


If any tax,
assessment or Imposition (other than an income tax, franchise tax or excise tax
imposed on or measured by, the net income or capital (including branch profits
tax) of Lender (or any transferee or assignee thereof, including a
participation holder)) (“Loan Document Taxes”)
is levied, assessed or charged by the United States, or any State in the United
States, or


 


35

















 


any political
subdivision or taxing authority thereof or therein upon any of the Loan
Documents or the obligations secured thereby, the interest of Lender in the
Mortgaged Properties, or Lender by reason of or as holder of the Loan
Documents, the applicable Collateral Pool Borrower or IDOT Guarantor shall pay
all such Loan Document Taxes to, for, or on account of Lender (or provide funds
to Lender for such payment, as the case may be) as they become due and payable and
shall promptly furnish proof of such payment to Lender, as applicable. In the
event of passage of any law or regulation permitting, authorizing or requiring
such Loan Document Taxes to be levied, assessed or charged, which law or
regulation in the opinion of counsel to Lender may prohibit the applicable
Collateral Pool Borrower or IDOT Guarantor from paying the Loan Document Taxes
to or for Lender, such Borrower or IDOT Guarantor shall enter into such further
instruments as may be permitted by law to obligate such Borrower or IDOT
Guarantor to pay such Loan Document Taxes.


 


Section
6.11.        Further
Assurances.


 


Each
Collateral Pool Borrower or IDOT Guarantor, at the request of Lender, shall execute
and deliver and, if necessary, file or record such statements, documents,
agreements, UCC financing and continuation statements and such other instruments
and take such further action as Lender from time to time may request as
reasonably necessary, desirable or proper to carry out more effectively the
purposes of this Agreement or any of the other Loan Documents for such
Collateral Pool or to subject the Collateral to the lien and security interests
of the Loan Documents for such Collateral Pool or to evidence, perfect or
otherwise implement, to assure the lien and security interests intended by the
terms of the Loan Documents for such Collateral Pool or in order to exercise or
enforce its rights under the Loan Documents for such Collateral Pool.


 


Section
6.12.        Ownership.


 


At all times
during the Term of this Agreement:


 


(a)           Each Borrower and IDOT
Guarantor shall be a Delaware limited liability company.


 


(b)           The Managing Member and
sole owner of each Borrower shall be a Delaware limited liability company 100%
owned, directly or indirectly, by ASOT and the day to day operation of each
Borrower and IDOT Guarantor shall be controlled by one or more Lehman Entities
and/or Tishman Speyer Control Persons.


 


(c)           ASOT shall be 100%
owned (exclusive of preferred unit interests existing on the Initial Closing
Date), directly or indirectly, by one or more Guarantors (other than ASOT).


 


(d)           The Guarantors shall be
owned, directly or indirectly, at least 9.7%, in the aggregate, by Lehman
Entities and/or Tishman Speyer Control Persons.


 


(e)           The day to day
operations of each Guarantor shall be controlled by one or more Lehman Entities
and/or Tishman Speyer Control Persons.


 


36

















 


Section
6.13.        Transfer
of Ownership Interests in Borrower Parties.


 


(a)           Prohibition on
Transfers. Subject to paragraph (b) of this Section 6.13, no Borrower Party
shall cause or permit a Transfer or a Change of Control.


 


(b)           Permitted Transfers.
Notwithstanding the provisions of paragraph (a) of this Section 6.13,
the following Transfers are permitted without the consent of Lender:


 


(i)            A Transfer of direct
or indirect interest in any Borrower Party; provided, however, that no Change
in Control occurs as the result of such Transfer.


 


(ii)           The issuance by a
Borrower Party of additional membership interests or stock and the subsequent
direct or indirect Transfer of such interests or stock; provided, however, that
no Change in Control occurs as the result of such Transfer.


 


(iii)          A merger with or
acquisition of another entity by a Borrower Party, provided that (A) each such
Borrower Party is the surviving entity after such merger or acquisition, (B) no
Change in Control occurs, and (C) such merger or acquisition does not otherwise
result in an Event of Default other than an Event of Default arising out of the
breach of Section 6.13(a) of this Agreement.


 


(iv)          A transfer of an
interest by a Guarantor, provided that, concurrently with such transfer, the
transferee of such interest becomes an Additional Guarantor; provided that (a)
any Transferee that is a subsidiary of any Guarantor shall not be required to become
an Additional Guarantor and (b) any Transferee that is not wholly-owned by
Guarantor, collectively (e.g., a
joint venture or fund that is controlled by Guarantor or an Affiliate thereof),
shall not be required to become an Additional Guarantor, but the Affiliate of
Guarantor that owns the interest in the Transferee in question, if such
Affiliate is not itself a subsidiary of any Guarantor, shall become an
Additional Guarantor.


 


(v)           Transfers from one
Guarantor to another Guarantor. Notwithstanding the foregoing, no Transfer
shall be permitted if the proposed transferee is identified on any of the lists
referenced in (iii) of the definition of Prohibited Person.


 


(c)           Consent to
Prohibited Transfers. Lender may, in its sole discretion, consent to a
Transfer that would otherwise violate this Section 6.13 if, prior to the
Transfer, the relevant Borrower Party has satisfied each of the following
requirements:


 


(i)            the submission to
Lender of all information required by Lender to make the determination required
by Section 6.13;


 


(ii)           the absence of any
Event of Default;


 


(iii)          the transferee meets all
of the eligibility (including the requirement that the proposed transferee is
not a Prohibited Person), credit, management and other standards (including any
standards with respect to previous relationships between Lender or Fannie Mae and
the transferee and the organization of the transferee) customarily applied by
Lender or


 


37

















 


Fannie Mae at
the time of the proposed Transfer to the approval of borrowers or guarantors, as
the case may be, in connection with the origination or purchase of similar
mortgages, deeds of trust or deeds to secure debt on Multifamily Residential
Properties; 


 


(iv)          in the case of a
Transfer of direct or indirect Ownership Interests in Borrower Party, as the
case may be, if transferor or any other person has obligations under any Loan
Documents, the execution by the transferee or one (1) or more individuals or
entities acceptable to Lender and Fannie Mae of an assumption agreement that is
acceptable to Lender and Fannie Mae and that, among other things, requires the
transferee to perform all obligations of transferor or such person set forth in
such Loan Document, and may require that the transferee comply with any
provisions of this Instrument or any other Loan Document which previously may
have been waived by Lender;


 


(v)           in the event such
Transfer of direct or indirect Ownership Interests in Borrower, IDOT Guarantor
or Guarantor results in (i) a Change of Control or (ii) a Transfer of a
Mortgaged Property, (such Transfer must include all Mortgaged Properties in a
Collateral Pool);


 


(vi)          Lender’s receipt of all
of the following:


 


(A)          in
the case of a Transfer or assumption of an entire Collateral Pool or Pools, but
not the Transfer or full assumption of the Credit Facility, a transfer fee
equal to one percent (1%) of the Loans Outstanding under such Collateral Pool
or Pools immediately prior to the Transfer, and in all other cases, a transfer
fee equal to 25 basis points (0.25%) of the Loans Outstanding under this
Agreement immediately prior to the Transfer.


 


(B)           Borrower
shall reimburse on demand Lender for all of Lender’s reasonable out-of-pocket
costs (including reasonable attorneys’ fees) incurred in reviewing the Transfer
request.


 


Section
6.14.        Transfer
of Ownership of Mortgaged Property.


 


(a)           Prohibition on
Transfers. Subject to paragraph (b) of this Section 6.14, none of
Borrower, IDOT Guarantor or Guarantor shall cause or permit a Transfer of all
or any part of a Mortgaged Property.


 


(b)           Permitted Transfers.
Notwithstanding provision (a) of this Section 6.14, the following
Transfers of a Mortgaged Property by Borrower, IDOT Guarantor or Guarantor are permitted
without the consent of Lender:


 


(i)            The grant of a
leasehold interest in individual dwelling units or commercial spaces in
accordance with the Security Instrument.


 


(ii)           A sale or other
disposition of obsolete or worn out personal property which is
contemporaneously replaced by comparable personal property of equal or greater
value which is free and clear of liens, encumbrances and security interests
other than those created by the Loan Documents or Permitted Liens.


 


38

















 


(iii)          The creation of a
mechanic’s or materialmen’s lien or judgment lien against a Mortgaged Property
which is released of record, bonded over, or otherwise remedied to Lender’s
satisfaction within thirty (30) days of the date of creation. 


 


(iv)          The grant of an easement
if, prior to the granting of the easement, Borrower causes to be submitted to
Lender all information required by Lender to evaluate the easement, and if
Lender consents to such easement based upon Lender’s determination that the easement
will not materially affect the operation of the Mortgaged Property or Lender’s
interest in the Mortgaged Property and Borrower or IDOT Guarantor pays to
Lender, on demand, all reasonable third-party out-of-pocket costs and expenses
incurred by Lender in connection with reviewing Borrower’s request. Lender
shall not unreasonably withhold its consent to or withhold its agreement to
subordinate the lien of a Security Instrument to (A) the grant of a utility easement
serving a Mortgaged Property to a publicly operated utility, or (B) the grant
of an easement related to expansion or widening of roadways, provided that any
such easement is in form and substance reasonably acceptable to Lender and does
not materially and adversely affect the access, use or marketability of a
Mortgaged Property.


 


(v)           The creation of a
Permitted Lien.


 


(c)           Consent to
Prohibited Transfers. Lender may, in its sole and absolute discretion,
consent to a Transfer that would otherwise violate this Section 6.14 if,
prior to the Transfer, Borrower has satisfied each of the following
requirements: 


 


(i)            the submission to
Lender of all information required by Lender to make the determination required
by this Section 6.14;


 


(ii)           the absence of any
Event of Default;


 


(iii)          the transferee meets all
of the eligibility (including the requirement that the proposed transferee is
not a Prohibited Person), credit, management and other standards (including any
standards with respect to previous relationships between Lender and the transferee
and the organization of the transferee) customarily applied by Lender at the
time of the proposed Transfer to the approval of Borrower, IDOT Guarantor or
Guarantor, as the case may be, in connection with the origination or purchase
of similar mortgages, deeds of trust or deeds to secure debt on Multifamily
Residential Properties;


 


(iv)          if transferor or any
other person has obligations under any Loan Documents, the execution by the
transferee or one (1) or more individuals or entities acceptable to Lender of
an assumption agreement that is acceptable to Lender and that, among other
things, requires the transferee to perform all obligations of transferor or
such person set forth in such Loan Document, and may require that the
transferee comply with any provisions of this Instrument or any other Loan
Document which previously may have been waived by Lender;


 


(v)           the Mortgaged Property,
at the time of the proposed Transfer, meets all standards as to its physical
condition that are customarily applied by Lender at the time of the proposed
Transfer to the approval of properties in connection with the origination or purchase
of similar mortgages on multifamily properties; 


 


39

















 


(vi)          such Transfer applies to
all Mortgaged Properties in a Collateral Pool (except with respect to a
Collateral Pool with one (1) Mortgaged Property, no individual Mortgaged
Property may be Transferred subject to the lien of the Security Instrument);


 


(vii)         Lender’s receipt of all
of the following:


 


(A)          in the case of a
Transfer or assumption of an entire Collateral Pool or Pools, but not the
Transfer or full assumption of the Credit Facility, a transfer fee equal to one
percent (1%) of the Loans Outstanding under such Collateral Pool or Pools
immediately prior to the Transfer, and in all other cases, a transfer fee equal
to 25 basis points (0.25%) of the Loans Outstanding under this Agreement
immediately prior to the Transfer.


 


(B)           Borrower shall
reimburse Lender on demand for all of Lender’s reasonable out-of-pocket costs
(including reasonable attorneys’ fees) incurred in reviewing the Transfer
request.


 


Section
6.15.        Change
in Senior Management.


 


Borrower shall
give Lender notice of any change in the identity of Senior Management within
ten (10) Business Days of the occurrence thereof.


 


Section
6.16.        Date-Down
Endorsements.


 


At any time
and from time to time, a Lender may obtain an endorsement to each Title Insurance
Policy containing a Revolving Credit Endorsement, amending the effective date
of the Title Insurance Policy to the date of the title search performed in
connection with the endorsement. The applicable Collateral Pool Borrower shall
pay for the cost and expenses incurred by Lender to the Title Company in
obtaining such endorsement, provided that, for each Title Insurance Policy, it
shall not be liable to pay for more than one (1) such endorsement in any consecutive
twelve (12) month period (including if such Borrower has paid for such endorsements
in connection with a Substitution or Release).


 


Section
6.17.        Ownership
of Mortgaged Properties.


 


Applicable
Borrower or IDOT Guarantor shall be the sole owner of its Mortgaged Properties
free and clear of any Liens other than Permitted Liens.


 


Section
6.18.        Change
in Property Manager.


 


Collateral
Pool Borrower shall give Lender notice of any change in the identity of the Property
Manager of each Mortgaged Property in such Collateral Pool, and no such change
shall be made without the prior consent of Lender, which shall not be
unreasonably withheld, conditioned or delayed based on the criteria for
approval of Property Managers as required by Lender for similar loans
anticipated to be sold to Fannie Mae. Notwithstanding the foregoing, so long as
no Event of Default has occurred and is continuing, such Collateral Pool
Borrower may change the Property Manager to an Affiliate of Borrower without
prior consent of Lender, provided such Collateral Pool Borrower gives Lender
prior written notice of such change. As of


 


40

















 


the date
hereof, Archstone Property Management LLC, a Delaware limited liability company
(“Manager LLC”) and
Archstone Property Management (California) Incorporated, a Delaware corporation
and Tishman, Speyer Properties, L.P. (or any Affiliate thereof) (“Manager Corporation”) are hereby
approved as the Property Manager.


 


Section
6.19.        ADA
Litigation.


 


Borrower
acknowledges that that certain Equal Rights Center v. Archstone
litigation (Civil Action No. 04-03975 (AMD), U.S. Dist. Ct., D. Md.) (the “ADA Litigation”) identifies various
properties (which properties may include the Mortgaged Properties), owned by Borrower,
IDOT Guarantor or other entities affiliated with ASOT, as having potential construction/design
violations under the Fair Housing Act and the Americans with Disabilities Act.
Borrower and IDOT Guarantor shall abide by all terms, provisions, requirements
and conditions resulting from a final adjudication, settlement, resolution or
other disposition of the ADA Litigation, including, but not limited to, the
Consent Decree.


 


Section
6.20.        Special
Covenant Regarding Newport Village.


 


The Borrower
acknowledges that, with respect to the Mortgaged Property commonly known as
Newport Village, having an address at 4757 W. Braddock Road, Alexandria,
Virginia, such Mortgaged Property has or had an underground storage tank that
may not have been properly closed. The Phase II Environmental Study with
respect to such Mortgaged Property recommended that the relevant Borrower
report the environmental findings with respect to such underground storage tank
closure to the appropriate regulatory authorities. Borrower shall promptly make
such report to the appropriate regulatory authorities and take any action recommended
or required by the relevant regulatory authorities. This covenant is in
addition to, and not instead of, any other environmental covenants, obligations
and indemnifications set forth in the Loan Documents.


 


Section
6.21.        Special
Covenant Regarding The Bennington.


 


The Borrower
acknowledges that, with respect to the Mortgaged Property commonly known as The
Bennington, having an address at 1201 S. Eads Street, Arlington, Virginia, such
Mortgaged Property has or had an underground storage tank that may not have
been properly closed. The Phase II Environmental Study with respect to such
Mortgaged Property recommended that the relevant Borrower report the
environmental findings with respect to such underground storage tank closure to
the appropriate regulatory authorities. Borrower shall promptly make such
report to the appropriate regulatory authorities and take any action recommended
or required by the relevant regulatory authorities. This covenant is in
addition to, and not instead of, any other environmental covenants, obligations
and indemnifications set forth in the Loan Documents.


 


Section
6.22.        Special
Covenant Regarding Oakwood Long Beach Marina.


 


The Borrower
acknowledges that various activities have taken place on the Mortgaged Property
commonly known as Oakwood Long Beach Marina, having an address at 333 First Street,
Seal Beach, California, that may have resulted in damage or other requirements
with


 


41

















 


respect to
environmental matters relating to such Mortgaged Property. Borrower has
represented to Lender it is seeking a no further action letter from the
California Environmental Protection Agency and/or other appropriate regulatory
authorities. Borrower hereby agrees to use commercially reasonable efforts to
promptly obtain such no action letter or other regulatory approval with respect
to such Mortgage Property and, if required, take any and all remedial or other
action recommended or required by any applicable regulatory authority. This
covenant is in addition to, and not instead of, any other covenants,
obligations and indemnifications set forth in the Loan Documents.


 


Section
6.23.        Special
Covenant Regarding Archstone del Rey and Oakwood Marina del Rey.


 


(a)           The Borrower
acknowledges that, with respect to the Mortgaged Property commonly known as
Archstone Marina del Rey and having an address at 4157 Via Marina, Marina del
Rey, California, a default currently exists under the ground lease related to
such property. Borrower hereby agrees that it will use commercially reasonable
efforts to cure such default promptly, and shall provide evidence to Lender
that such cure has been accepted and acknowledged by the landlord under such
Ground Lease and any other applicable regulatory authority. Borrower’s
obligation under this Section 6.23(a) shall be in addition to, and not
in lieu of, any other covenants, obligations and indemnifications set forth in
the Loan Documents.


 


(b)           The Borrower
acknowledges that, with respect to the Mortgaged Property commonly known as
Oakwood Marina del Rey and having an address at 4111 Via Marina, Marina del
Rey, California, a default currently exists under the ground lease related to
such property. Borrower hereby agrees that it will use commercially reasonable
efforts to cure such default promptly, and shall provide evidence to Lender
that such cure has been accepted and acknowledged by the landlord under such
Ground Lease and any other applicable regulatory authority. Borrower’s
obligation under this Section 6.23(b) shall be in addition to, and not
in lieu of, any other covenants, obligations and indemnifications set forth in
the Loan Documents.


 


Section
6.24.        Special
Covenant Regarding The Statesman.


 


The Borrower
acknowledges that, with respect to the Mortgaged Property commonly known as The
Statesman, having an address at 2020 F Street, N.W., Washington, D.C., such Mortgaged
Property has or had an underground storage tank that has been designated as “permanently
out of use.” The Phase I Environmental Study with respect to such Mortgaged Property
recommended that the relevant Borrower perform a Phase II Environmental Study
on such Mortgaged Property. Borrower shall promptly perform such Phase II
Environmental Study and take any action recommended or required by such Phase
II Environmental Study. This covenant is in addition to and not instead of, any
other environmental covenants, obligations and indemnifications set forth in
the Loan Documents.


 


Section
6.25.        Special
Covenant Regarding Connecticut Heights.


 


The Borrower
acknowledges that, with respect to the Mortgaged Property commonly known as
Connecticut Heights, having an address at 4850 Connecticut Avenue, N.W., Washington,
D.C., such Mortgaged Property has an active underground storage tank. The Phase


 


42

















 


I
Environmental Study with respect to such Mortgaged Property recommended that
the relevant Borrower perform a Phase II Environmental Study on such Mortgaged
Property. Borrower shall promptly perform such Phase II Environmental Study and
take any action recommended or required by such Phase II Environmental Study.
This covenant is in addition to and not instead of, any other environmental
covenants, obligations and indemnifications set forth in the Loan Documents.


 


Section
6.26.        Special
Covenant Regarding Line of Credit Availability.


 


Borrower
shall, within fifteen (15) days of the end of each fiscal quarter, report in
writing to Lender the amount of Line of Credit Availability and whether a Line
of Credit Triggering Event has occurred.


 


Section
6.27.        Special
Covenant Regarding Key West and The Westmont.


 


The Mortgaged
Property known as Key West, having an address at 750 Columbus Avenue, New York,
New York, and the Mortgaged Property commonly known as The Westmont, having an
address at 730 Columbus Avenue, New York, New York, are each subject to certain
regulatory agreements with the New York City Housing Development Corporation
(the “HDC”). Pursuant to
those agreements, consent of the HDC to the transfer of certain interests related
to the consummation of the transactions described herein is required from HDC,
and consent to permit Lender to foreclose on the Security Instruments with
respect to such Mortgaged Properties is also required from HDC. Borrower has
received certain assurances from in-house legal counsel for the HDC with
respect to approval of the transactions contemplated hereby. Borrower hereby
agrees that it will use commercially reasonable efforts to obtain consent to
the transaction contemplated hereby, and consent to foreclosure by Lender under
its security instrument in form and substance satisfactory to Lender.


 


ARTICLE 7


NEGATIVE COVENANTS OF BORROWER


 


Borrower
agrees and covenants with Lender that, at all times during the Term of this Agreement:


 


Section
7.01.        Other
Activities.


 


No Borrower
Party shall:


 


(a)           in the case of any
Borrower, IDOT Guarantor or managing member or general partner of a Borrower or
an IDOT Guarantor, amend its Organizational Documents in any material respect
without the prior written consent of Lender;


 


(b)           in the case of any
Borrower Party not described in (a) of this Section 7.01, amend its
Organizational Documents in any way that would have a material adverse effect
on any Borrower Party’s ability to perform its obligations under the Loan
Documents without the prior written consent of Lender;


 


43

















 


(c)           dissolve or liquidate
in whole or in part (except for the sale of Mortgaged Properties in the
ordinary course of business);


 


(d)           in the case of any
Borrower, IDOT Guarantor or managing member or general partner of a Borrower or
an IDOT Guarantor, except as otherwise provided in this Agreement, without the
prior written consent of Lender, merge or consolidate with any Person;


 


(e)           in the case of any
Borrower Party not described in (d) of this Section 7.01, if such merger
or consolidation would have a Material Adverse Effect on any Borrower Party’s ability
to perform its obligations under the Loan Documents, merge or consolidate with
any other Person without the prior written consent of Lender;


 


(f)            use, or permit to be
used, any Mortgaged Property in the applicable Collateral Pool for any uses or
purposes other than as a Multifamily Residential Property and ancillary uses
consistent with Multifamily Residential Properties;


 


(g)           in the case of any
Borrower, IDOT Guarantor or managing member or general partner of a Borrower or
an IDOT Guarantor, convert from one type of legal entity to another type of
legal entity; or


 


(h)           in the case of any
Borrower Party not described in (g) of this Section 7.01, if such
conversion would have a Material Adverse Effect on any Borrower Party’s ability
to perform its obligations under the Loan Documents, convert from one type of
legal entity to another type of legal entity.


 


Each Borrower
Party shall promptly provide Lender with notice and a copy of any amendment of
its Organizational Documents that does not require prior written consent of Lender.


 


Section
7.02.        Liens.


 


Neither
Borrower nor IDOT Guarantor shall create, incur, assume or suffer to exist any Lien
on Borrower’s or IDOT Guarantor’s, as applicable, interest in any Mortgaged
Property in its Collateral Pool or any part of any Mortgaged Property, except
the Permitted Liens.


 


Section
7.03.        Indebtedness.


 


Neither
Borrower nor IDOT Guarantor shall incur or be obligated at any time with respect
to any Indebtedness (other than Loans) in connection with or secured by any of
the Mortgaged Properties. None of Borrower, IDOT Guarantor, any mezzanine
borrower under the Lehman Mezzanine Debt, or any entity whose sole asset is a
direct or indirect ownership interest in Borrower or IDOT Guarantor shall incur
any “mezzanine debt,” issue any preferred equity or incur any similar
Indebtedness or equity with respect to any Mortgaged Property other than the Lehman
Mezzanine Debt and the Bank Debt. Notwithstanding the foregoing, in connection
with the operation of the Mortgaged Properties, each Borrower and each IDOT
Guarantor, without duplication, shall each be permitted to incur Indebtedness
in the maximum aggregate amount of $150,000 provided such Borrower or IDOT
Guarantor shall not incur or assume any Indebtedness (a) that is not paid when
due nor within any applicable grace period in any  


 


44

















 


agreement or
instrument relating to such Indebtedness, or (b) that becomes due and payable before
its normal maturity by reason of a default or event of default, however
described, or any other event of default shall occur and continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Indebtedness.


 


Section
7.04.        Principal
Place of Business.


 


Neither
Borrower nor IDOT Guarantor shall change its principal place of business or the
location of its books and records, each as set forth in Borrower’s Certificate
or IDOT Guarantor’s Certificate, as applicable, without first giving thirty
(30) days’ prior written notice to Lender.


 


Section
7.05.        Condominiums.


 


Neither
Borrower nor IDOT Guarantor shall submit any Mortgaged Property in its Collateral
Pool to a condominium regime during the Term of this Agreement. Notwithstanding
the foregoing, the Mortgaged Properties commonly known as Archstone Columbia
Crossing, having an address at 1957 Columbia Pike, Arlington, Virginia;
Archstone 2000 Commonwealth, having an address at 2000 Commonwealth Avenue,
Brighton, Massachusetts; San Mateo, having an address at 1101 Park Place, San
Mateo, California; Parc Vista, having an address at 801 15th Street South,
Arlington, Virginia; and Archstone Sierra del Oro, having an address at 1456 Serfas
Club Drive, Corona, California are subject to a condominium regime and shall be
permitted to be subject to such regime during the term of this Agreement. In
addition, such Mortgaged Properties shall be subject to the terms of the
Security Instrument with respect to the operation of such condominium regime.


 


Section
7.06.        Restrictions
on Distributions.


 


Neither
Borrower nor IDOT Guarantor shall make any distributions of any nature or kind whatsoever
to the owners of its Ownership Interests as such if, at the time of such
distribution, an Event of Default has occurred and remains uncured.


 


Section
7.07.        Master
Leases.


 


No Mortgaged
Property may be master leased or otherwise leased in whole or in bulk, provided
that the Mortgaged Properties identified on Exhibit M shall be master
leased to Master Tenant pursuant to a Master Lease in the form approved by
Lender prior to the Initial Closing Date. Borrower shall not, without the prior
written consent of Lender, which consent shall be given in Lender’s reasonable
discretion, agree to any material modification or amendment to any Master Lease
and shall not terminate any Master Lease without Lender’s prior written
consent, unless after such termination all Residential Agreements related to
the relevant Mortgaged Property shall remain in full force and effect with
Borrower becoming a landlord under such Resident Agreements, provided that
Lender’s consent shall no longer be required after a Mortgaged Property is
released from a Collateral Pool. In the event that any Master Lease matures
earlier than the Termination Date, no later than ninety (90) days prior to
expiration of such Master Lease Borrower shall extend the term of such Master
Lease, and provide written evidence to Lender of the same, on the terms
substantially similar to the form as in effect on the


 


45

















 


date hereof.
In the event Master Tenant terminates the Master Lease, Borrower shall promptly
provide notice of such termination to Lender.


 


Section
7.08.        Cash
Management.


 


Except as
provided herein, no Borrower, IDOT Guarantor or any direct or indirect owner of
any Borrower or IDOT Guarantor shall enter into any lockbox or cash management arrangement
involving rents or proceeds of any Mortgaged Property or distributions of any
kind from Borrower or IDOT Guarantor with any party. If the lender under the
Lehman Mezzanine Debt or the Bank Debt requests that any Borrower or IDOT
Guarantor enter into any cash management arrangement, each Borrower, IDOT
Guarantor or any direct or indirect owner of any Borrower or IDOT Guarantor, prior
to entering into any such arrangement, shall enter into a lockbox or cash
management agreement reasonably acceptable to Lender (prepared by Lender) and
is in substantially the form of Fannie Mae’s then current standard form of
lockbox and/or cash management agreement. Such cash management agreement shall
authorize Lender to terminate distribution of amounts otherwise distributable
by Borrower and IDOT Guarantor upon the occurrence of an Event of Default under
any Loan.


 


ARTICLE 8


FEES


 


Section
8.01.        Re-Underwriting
Fee.


 


On the Closing
Date of any Extension, Release, Additional Fixed Loan, or Substitution (on the
Closing Date of the Release of the Release Mortgaged Property under such
Substitution), the applicable Collateral Pool Borrower shall pay to Lender a
re-underwriting fee equal to the product of $5,000 multiplied by the number of
Mortgaged Properties in such Collateral Pool at the time of such Extension,
Release Request, Substitution Request or Loan Request, as applicable (the “Re-Underwriting Fee”).


 


Section
8.02.        Origination
Fee.


 


On the Closing
Date of any Additional Fixed Loan, the applicable Collateral Pool Borrower
shall pay to Lender an origination fee (the “Origination Fee”) equal to the product of 100 basis points
(1.0%) multiplied by the amount of such Additional Fixed Loan.


 


Section
8.03.        Due
Diligence Fees.


 


Initial Due
Diligence Fees. The applicable Collateral Pool
Borrower shall pay to Lender actual due diligence fees for each Mortgaged
Property in such Collateral Pool (including reasonable legal fees and expenses
relating to due diligence and the closing of this Agreement) (“Initial Due Diligence Fees”) with
respect to the Initial Mortgaged Properties in such Collateral Pool. On or
prior to the Initial Closing Date, Lender shall notify such Borrower of the
actual amount of the Initial Due Diligence Fees and such Borrower shall pay to
Lender such Initial Due Diligence Fees on the Initial Closing Date.


 


(a)           Additional Due
Diligence Fees for Substitute Mortgaged Properties. The applicable
Collateral Pool Borrower shall pay to Lender actual due diligence fees
including the 


 


46

















 


Fannie Mae
review fee of $1,500 for each Mortgaged Property (the “Additional Due Diligence Fees”) with
respect to each proposed Substitute Mortgaged Property anticipated to be added
to a Collateral Pool. In connection with any Substitution Request, Borrower
shall pay to Lender a deposit equal to the product obtained by multiplying


 


(i)            $12,000 by


 


(ii)           the number of Substitute
Mortgaged Properties (such amount to be allocated to Lender for its due
diligence expenses).


 


Any Additional
Collateral Due Diligence Fees not covered by the deposit shall be paid by Borrower
on the Closing Date (or if the proposed Substitute Mortgaged Property does not become
part of the Collateral Pool, on demand) for the Substitute Mortgaged Property.
Any portion of the Additional Collateral Due Diligence Fee paid to Lender not
actually used by Lender to cover reasonable due diligence expenses shall be
promptly refunded to the applicable Collateral Pool Borrower. 


 


Section
8.04.        Legal
Fees and Expenses.


 


(a)           Initial Legal Fees.
The applicable Collateral Pool Borrower shall pay, or reimburse Lender for, all
reasonable out-of-pocket third-party legal fees and expenses incurred by Lender
and by Fannie Mae in connection with the preparation, review and negotiation of
this Agreement and any other Loan Documents executed on the date of this
Agreement. 


 


(b)           Fees and Expenses
Associated with Requests. The applicable Collateral Pool Borrower shall
pay, or reimburse Lender for, all reasonable out-of-pocket third-party costs and
expenses incurred by Lender, including the out-of-pocket legal fees and
expenses incurred by Lender in connection with the preparation, review and
negotiation of all documents, instruments and certificates to be executed and
delivered in connection with each Request for such Collateral Pool Borrower,
the performance by Lender of any of its obligations with respect to the
Request, the satisfaction of all conditions precedent to such Borrower’s rights
or Lender’s obligations with respect to the Request, and all transactions
related to any of the foregoing, including the cost of title insurance premiums
and applicable recordation and transfer taxes and charges and all other
reasonable costs and expenses in connection with a Request. The obligations of
the applicable Borrower under this subsection shall be absolute and
unconditional, regardless of whether the transaction requested in the Request
actually occurs. The applicable Collateral Pool Borrower shall pay such costs
and expenses to Lender on the Closing Date for the Request, or, as the case may
be, after demand by Lender when Lender determines that such Request will not
close.


 


Section
8.05.        Failure
to Close any Request.


 


If a Collateral Pool Borrower makes a Request and fails to close on the
Request for any reason other than the default by Lender, then such Borrower
shall pay to Lender and Fannie Mae all actual cost and expenses (including any
breakage costs) incurred by Lender and Fannie Mae in connection with the
failure to close.  


 


47
















 


ARTICLE 9


EVENTS OF DEFAULT


 


Section
9.01.        Events
of Default.


 


Each of the
following events shall constitute an “Event of Default”
under this Agreement, whatever the reason for such event and whether it shall
be voluntary or involuntary, or within or without the control of Borrower, IDOT
Guarantor or Guarantor or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority, provided that, except with respect to the Loans secured
by the Mortgaged Properties comprising a Collateral Pool (as set forth in Recitals
B and F of this Agreement, each Loan in a Collateral Pool is
cross-defaulted to each other Loan in such Collateral Pool), an Event of
Default that relates solely to any Collateral Pool shall not be an Event of
Default under any other Loan or Collateral Pool:


 


(a)           the occurrence of a
default under any Loan Document related to such Borrower’s Collateral Pool
beyond the cure period, if any, set forth therein; or


 


(b)           the failure by Borrower
to pay within thirty (30) days of its due date or request by Lender, as
applicable, when due any amount payable by Borrower under any Note, any
Security Instrument, this Agreement or any other Loan Document, including any
fees, costs or expenses; provided, however, that (i) such thirty (30) day grace
period shall not apply to: (A)  regularly
scheduled monthly payments of principal, interest, discount (if any) or any
payment upon the Maturity Date (as defined in the Note) or the applicable Pool
Termination Date or (B)  any fees, costs
or expenses due and payable on the Initial Closing Date or any fees, costs or expenses
due and payable on the Closing Date of any Request; and (ii) such thirty (30)
day grace period shall not be more than (or in addition to) any other grace
period provided in the Note, any Security Instrument, this Agreement or any
other Loan Document; or


 


(c)           the failure by Borrower
or IDOT Guarantor to perform or observe any covenant set forth in Section
6.07 (Inform Lender of Material Events), Section 6.09 (Alterations to
Mortgaged Properties), Section 6.12 (Ownership), Section 6.13 (Transfer
of Ownership Interest in Borrower Parties), Section 6.14 (Transfer of
Ownership of Mortgaged Property), Section 6.17 (Ownership of Mortgaged
Properties), Section 6.18 (Change in Property Manager), Section 7.01
(Other Activities), Section 7.02 (Liens), Section 7.03
(Indebtedness), Section 7.06  (Restrictions
on Distributions), Section 7.07 (Master Leases); or


 


(d)           the failure by Borrower
or IDOT Guarantor to perform or observe any covenant contained in Article 6
or Article 7 (other than those sections specifically referenced in Section
9.01(c) above) for thirty (30) days after receipt of notice of such failure
by such Borrower or IDOT Guarantor from Lender, provided that such period shall
be extended for up to thirty (30) additional days if such Borrower or IDOT
Guarantor, in the discretion of Lender, is diligently pursuing a cure of such
default within thirty (30) days after receipt of notice from Lender; or


 


(e)           any warranty,
representation or other written statement made by or on behalf of Borrower,
IDOT Guarantor or Guarantor contained in this Agreement, any other Loan


 


48

















 


Document or in
any instrument furnished in compliance with or in reference to any of the foregoing,
is false or misleading in any material respect on any date when made or deemed
made and, in the case of any warranty, representation or other written
statement that was not intentionally false or misleading when made, and in
Lender’s reasonable judgment is curable, remains uncured for thirty (30) days
after notice of such false or misleading statement shall have been given to
Borrower; or


 


(f)            (i) any Borrower Party
or any Tishman-Lehman Bankruptcy Person shall (A) commence a voluntary case,
whether of such entity or an Affiliate thereof, under the Federal bankruptcy
laws (as now or hereafter in effect), (B) file a petition seeking to take
advantage of any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, debt adjustment, winding up or composition or
adjustment of debts, (C) consent to or fail to contest in a timely and
appropriate manner any petition filed against it in an involuntary case under
such bankruptcy laws or other laws, (D) apply for or consent to, or fail to
contest in a timely and appropriate manner, the appointment of, or the taking
of possession by, a receiver, custodian, trustee or liquidator of itself or of
a substantial part of its property, domestic or foreign, (E) admit in writing
its inability to pay, or generally not be paying, its debts as they become due,
(F) make a general assignment for the benefit of creditors, (G) assert that any
Borrower Party (but with respect to any Guarantor, solely with respect to the
Guaranty) has no liability or obligations under this Agreement or any other
Loan Document to which it is a party; (H) take any action, petition to or cause
or permit any of its assets to be partitioned, or (I) take any action for the purpose
of effecting any of the foregoing; or (ii) a case or other proceeding shall be
commenced against any Borrower Party or any Tishman-Lehman Bankruptcy Person in
any court of competent jurisdiction seeking (A) relief under the Federal
bankruptcy laws (as now or hereafter in effect) or under any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding upon or composition or adjustment of debts, or (B) the appointment of a
trustee, receiver, custodian, liquidator or the like of any Borrower Party or
any Tishman-Lehman Bankruptcy Person, whether by such entity or an Affiliate
thereof, for all or a substantial part of the property, domestic or foreign, of
any Borrower Party or any Tishman-Lehman Bankruptcy Person, whether by such
entity or an Affiliate thereof, and any such case or proceeding shall continue
undismissed or unstayed for a period of ninety (90) consecutive days, or any
order granting the relief requested in any such case or proceeding against any
Borrower Party or any Tishman-Lehman Bankruptcy Person, whether by such entity
or an Affiliate thereof (including an order for relief under such Federal
bankruptcy laws), shall be entered; or


 


(g)           if any provision of
this Agreement or any other Loan Document or the lien and security interest
purported to be created hereunder or under any Loan Document shall at any time
for any reason cease to be valid and binding in accordance with its terms on
Borrower, IDOT Guarantor or Guarantor, or shall be declared to be null and
void, or the validity or enforceability hereof or thereof or the validity or
priority of the lien and security interest created hereunder or under any other
Loan Document shall be contested by Borrower, IDOT Guarantor or Guarantor seeking
to establish the invalidity or unenforceability hereof or thereof, or Borrower,
IDOT Guarantor or Guarantor (only with respect to the Guaranty) shall deny that
it has any further liability or obligation hereunder or thereunder; or


 


(h)           (i) the execution by
Borrower or IDOT Guarantor of a chattel mortgage or other security agreement on
any materials, fixtures or articles used in the construction or


 


49

















 


operation of
the improvements located on any Mortgaged Property or on articles of personal property
located therein (other than in connection with any Permitted Liens), or (ii) if
any such materials, fixtures or articles are purchased pursuant to any
conditional sales contract or other security agreement or otherwise so that the
Ownership thereof will not vest unconditionally in Borrower or IDOT Guarantor
free from encumbrances, or (iii) if Borrower or IDOT Guarantor does not furnish
to Lender upon request the contracts, bills of sale, statements, receipted vouchers
and agreements, or any of them, under which Borrower or IDOT Guarantor claims
title to such materials, fixtures, or articles; or


 


(i)            the failure by
Borrower or IDOT Guarantor to comply with any requirement of any Governmental
Authority within thirty (30) days after written notice of such requirement
shall have been given to Borrower or IDOT Guarantor by such Governmental Authority;
provided that, if the required action is commenced and diligently pursued by Borrower
or IDOT Guarantor within such thirty (30) days, then Borrower or IDOT Guarantor
shall have such additional time to comply with such requirement as permitted by
the Governmental Authority; or


 


(j)            a dissolution or
liquidation for any reason (whether voluntary or involuntary) of any Borrower
Party or any Tishman-Lehman Bankruptcy Person, except the sale of Mortgaged
Properties in the ordinary course of business; or


 


(k)           any final and
nonappealable judgment against Borrower Party, any attachment or other levy
against any portion of Borrower Party’s assets with respect to a claim or claims
in an amount in excess of $250,000 individually and/or $500,000 in the
aggregate remains unpaid, unstayed on appeal undischarged, unbonded, not fully
insured or undismissed for a period of ninety (90) days; or


 


(l)            the failure by
Borrower, IDOT Guarantor or Guarantor to perform or observe any material term,
covenant, condition or agreement hereunder, other than as contained in
subsections (a) through (k) above, or in any other Loan Document, within thirty
(30) days after receipt of notice from Lender identifying such failure,
provided such period shall be extended for up to thirty (30) additional days if
Borrower or IDOT Guarantor, in the discretion of Lender, is diligently pursuing
a cure of such default within thirty (30) days after receipt of notice from
Lender and corrective action is instituted by Borrower or IDOT Guarantor within
such period and pursued diligently and in good faith, then such failure shall
not constitute an Event of Default unless such failure is not cured by Borrower
or IDOT Guarantor within sixty (60) days after receipt of notice from Lender
identifying such failure.


 


ARTICLE 10


REMEDIES


 


Section
10.01.      Remedies;
Waivers.


 


Upon the
occurrence of an Event of Default, Lender may do any one or more of the following
with respect to any Loan secured by a Collateral Pool to which the Event of
Default (or the Borrower causing such Event of Default) relates (without
presentment, protest or notice of protest, all of which are expressly waived by
each Borrower Party):


 


50

















 


(a)           by
written notice to the defaulting Collateral Pool Borrower, to be effective upon
dispatch and declare the principal of, and interest on, the Loans and all other
sums owing by such Borrower to Lender under any of the Loan Documents for such
Collateral Pool forthwith due and payable, whereupon the principal of, and
interest on, the Loans and all other sums owing by such Collateral Pool
Borrower to Lender under any of the Loan Documents for such Collateral Pool
will become forthwith due and payable.


 


(b)           Lender
shall have the right to pursue any other remedies available to it under any of
the Loan Documents for such Collateral Pool.


 


(c)           Lender
shall have the right to pursue all remedies available to it at law or in
equity, including obtaining specific performance and injunctive relief with
respect to such Collateral Pool.


 


Section
10.02.      Waivers;
Rescission of Declaration.


 


Lender shall
have the right, to be exercised in its complete discretion, to waive any breach
hereunder (including the occurrence of an Event of Default), by a writing
setting forth the terms, conditions, and extent of such waiver signed by Lender
and delivered to the applicable Collateral Pool Borrower. Unless such writing
expressly provides to the contrary, any waiver so granted shall extend only to
the specific event or occurrence which gave rise to the waiver and not to any
other similar event or occurrence which occurs subsequent to the date of such
waiver.


 


Section
10.03.      Lender’s
Right to Protect Collateral and Perform Covenants and Other Obligations.


 


If any
Borrower, IDOT Guarantor or Guarantor fails to perform the covenants and agreements
contained in this Agreement or any of the other Loan Documents for the
applicable Collateral Pool, after all applicable grace periods, if any, then
Lender at Lender’s option may make such appearances, disburse such sums and
take such action as Lender deems necessary, in its sole discretion, to protect
Lender’s interest, including (i) disbursement of reasonable attorneys’ fees,
(ii) entry upon the Mortgaged Property to make repairs and replacements, (iii)  procurement of satisfactory insurance as
provided in Section 5 of the Security Instrument encumbering the Mortgaged Property
in such Collateral Pool, and (iv) if the Security Instrument is on a leasehold,
exercise of any option to renew or extend the ground lease on behalf of Borrower
or IDOT Guarantor and the curing of any default of Borrower or IDOT Guarantor
in the terms and conditions of the ground lease. Any amounts disbursed by
Lender pursuant to this Section 10.03, with interest thereon, shall
become additional Indebtedness of Collateral Pool Borrower secured by the
applicable Collateral Pool Loan Documents. Unless the applicable Collateral
Pool Borrower and Lender agree to other terms of payment, such amounts shall be
immediately due and payable and shall bear interest from the date of
disbursement at the weighted average, as determined by Lender, of the interest
rates in effect from time to time for each Loan unless collection from such
Borrower of interest at such rate would be contrary to Applicable Law, in which
event such amounts shall bear interest at the highest rate which may be
collected from such Borrower under Applicable Law. Nothing contained in this Section
10.03 shall require Lender to incur any expense or take any action
hereunder.


 


51

















 


Section
10.04.      No
Remedy Exclusive.


 


Unless
otherwise expressly provided, no remedy herein conferred upon or reserved is intended
to be exclusive of any other available remedy, but each remedy shall be
cumulative and shall be in addition to other remedies given under the Loan
Documents or existing at law or in equity.


 


Section
10.05.      No
Waiver.


 


No delay or
omission to exercise any right or power accruing under any Loan Document upon
the happening of any Event of Default or Potential Event of Default shall
impair any such right or power or shall be construed to be a waiver thereof,
but any such right and power may be exercised from time to time and as often as
may be deemed expedient.


 


Section
10.06.      No
Notice.


 


To entitle
Lender to exercise any remedy reserved to Lender in this Article 10, it
shall not be necessary to give any notice, other than such notice as may be
required under the applicable provisions of this Agreement or any of the other
Loan Documents.


 


ARTICLE 11


IMPOSITION DEPOSITS


 


Section
11.01.      Insurance
and Water/Sewer Waived; Other Imposition Deposits Required.


 


Each
Collateral Pool Borrower or IDOT Guarantor shall establish funds for taxes, insurance
premiums and certain other charges for each Mortgaged Property in such
Collateral Pool in accordance with Section 7(a) of the Security Instrument for
each such Mortgaged Property. Notwithstanding the foregoing and the provisions
of Subsection 7(a) of the Security Instrument for each such Mortgaged Property,
and subject to the conditions of this Article 11, provided that no Event
of Default has occurred and is continuing and Collateral Pool Borrower or IDOT
Guarantor has timely delivered to Lender any insurance bills or premium notices
that it has received pursuant to the requirements of this Section, Lender shall
not require Collateral Pool Borrower or IDOT Guarantor to deposit with Lender
any sums for Imposition Deposits ONLY to the extent they relate to (x) any
water and sewer charges, and (y) the premiums for fire and other hazard
insurance, rent loss insurance and such other insurance as Lender may require under
Section 19 of the Security Instrument. Such Collateral Pool Borrower or IDOT
Guarantor must (1) pursuant to the terms of Section 19 of the Security
Instrument, provide Lender with proof of payment (e.g., paid receipts or
cancelled checks) of all such premiums for fire and other hazard insurance,
rent loss insurance and such other insurance required under Section 19 of the Security
Instrument, (2) pursuant to the terms of Section 19 of the Security Instrument,
deliver to Lender the original (or a duplicate original) of a renewal policy in
form satisfactory to Lender, and (3) to the extent not covered in (1) or (2)
above, pay Impositions for which Lender is not collecting Imposition Deposits
no later than the date sixty (60) days after the date such Impositions are due
and before the addition of any interest, fine, penalty or cost for nonpayment.  In the event that (i) an Event of Default has
occurred and is continuing or (ii) Such Collateral


 


52

















 


Pool Borrower
or IDOT Guarantor does not timely pay any of the Impositions as described in Section
7(a) of the Security Instrument and this Section 11.01, or fails to
provide Lender with proof of such payment as set forth in Section 7(a) of the
Security Instrument and this Section 11.01, or (iii) a Line of Credit
Triggering Event has occurred, Lender may immediately thereafter require such
Collateral Pool Borrower or IDOT Guarantor to deposit with Lender all of the
Imposition Deposits as provided in this Article 11 and in Section 7(a)
of the Security Instrument. The terms and provisions of this Article 11
shall be applicable only so long as the current Borrower or IDOT Guarantor
remains as the record title owner of the Mortgaged Property, and shall
immediately terminate and have no further force or effect upon a sale or exchange
of the Mortgaged Property to a third-party purchaser in which the Indebtedness secured
by the Security Instrument is assumed by such third-party purchaser. Nothing in
this Article 11 or Section 7(a) of the Security Instrument shall be
deemed to waive Imposition Deposits with respect to Taxes, which deposits shall
be required pursuant to the terms of Section 7(a) of the Security Instrument
and this Article 11.


 


Section
11.02.      Imposition
Deposits.


 


Notwithstanding
the provision of Section 7(d) of the Security Instrument, on or before the first
day of each Loan Year after the Initial Closing Date, and on or before the
Closing Date of a Substitution Request or a Release Request, if Lender
determines, based on the foregoing methodology, that a modified amount is
required to be deposited with Lender as Imposition Deposits, applicable
Collateral Pool Borrower or IDOT Guarantor shall deposit any deficiency with
Lender, or Lender shall release any overage to such Collateral Pool Borrower or
IDOT Guarantor, provided that, in the case of the latter, no Event of Default
or Potential Event of Default then exists hereunder. The applicable Collateral
Pool Borrower or IDOT Guarantor shall, subject to such Collateral Pool Borrower’s
or IDOT Guarantor’s right to contest under Section 15(d) of the Security
Instruments, pay each Imposition relating to a Mortgaged Property before the
last date upon which such payment may be made without any penalty or interest charge
being added. Subject to such Collateral Pool Borrower’s or IDOT Guarantor’s
right to contest under Section 15(d) of the Security Instruments, such
Collateral Pool Borrower or IDOT Guarantor shall deliver to Lender evidence
that such Borrower or IDOT Guarantor has paid each Imposition within thirty (30) days after making such payment.


 


Section
11.03.      Replacement
Reserves.


 


Each
Collateral Pool Borrower and IDOT Guarantor, as applicable, shall execute a Replacement
Reserve Agreement for each of the Mortgaged Properties in the respective Collateral
Pool and shall (unless waived by the Lender) make all deposits for replacement reserves
in accordance with the terms of the Replacement Reserve Agreement.


 


Section
11.04.      Completion/Repair
Reserves.


 


If required by
Lender, each Collateral Pool Borrower and IDOT Guarantor, as applicable, shall
execute a Completion/Repair and Security Agreement for each of the Mortgaged
Properties in the respective Collateral Pool and shall (unless waived by the
Lender) make all deposits for completion reserves in accordance with the terms
of the Completion/Repair and Security Agreement.


 


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ARTICLE 12


LIMITS ON PERSONAL LIABILITY


 


Section
12.01.      Personal
Liability to Borrower.


 


(a)           Limits on Personal
Liability. Except as otherwise provided in this Article 12, neither
Borrower nor any partner, member, shareholder, employee, director, agent or Affiliate
of Borrower, or any partner, member, shareholder, employee, director, agent, or
Affiliate of any heir, legal representative or successor or assign of the
foregoing (the “Exculpated Parties”)
shall have any personal liability under this Agreement, the Note, the Security
Instruments or any other Loan Document for the performance of any Obligations
of Borrower under the Loan Documents, and Lender’s only recourse for the
payment and performance of the Obligations shall be Lender’s exercise of its
rights and remedies with respect to the Mortgaged Property and any other
Collateral held by Lender as security for the Obligations. This limitation on
the Exculpated Parties’ liability shall not limit or impair Lender’s
enforcement of its rights against Guarantor under the Guaranty.


 


(b)           Exceptions to Limits
on Personal Liability. Each Collateral Pool Borrower shall be personally
liable to Lender for the repayment of a portion of the Loans and other amounts
due under the Loan Documents evidencing such Collateral Pool Borrower’s Loan equal
to any actual loss or actual damage suffered by Lender as a result of (i)
failure of such Borrower to pay to Lender, upon demand after an Event of
Default, all Rents to which Lender is entitled under Section 3(a) of the
Security Instrument encumbering the Mortgaged Property and the amount of all
security deposits collected by such Borrower or IDOT Guarantor from tenants then
in residence; (ii) failure of such Borrower or IDOT Guarantor to apply all
insurance proceeds, condemnation proceeds or security deposits from tenants as
required by the Security Instrument encumbering the Mortgaged Property; (iii)
failure of such Borrower or IDOT Guarantor to comply with its obligations under
the Loan Documents with respect to the delivery of books and records and
financial statements; (iv) fraud or written material misrepresentation by such
Borrower or IDOT Guarantor or any officer, director, partner or member of
Borrower or IDOT Guarantor in connection with the application for or creation
of the Obligations or any request for any action or consent by Lender; (v)
failure to comply with any and all indemnification obligations contained in
Section 18 (environmental) of any Security Instrument; (vi) distribution by the
Borrower or IDOT Guarantor of any Rents in any Calendar Quarter to the extent
that all amounts due and payable to third parties by such Borrower or IDOT
Guarantor, including but not limited to all operating expenses, capital
expenditures and amounts payable under the Loan Documents have not been paid in
full (except that such Borrower or IDOT Guarantor will not be personally liable
to the extent that such Borrower or IDOT Guarantor lacks the legal right to
direct the disbursement of such sums because of a bankruptcy, receivership or similar
judicial proceeding; (vii) the acquisition by any Borrower or IDOT Guarantor of
any property or operation of any business not permitted by Section 33 (single
purpose) of any Security Instrument securing such Borrower’s Loan; (viii)
failure to obtain an estoppel and/or subordination agreement with respect to
any Master Lease as required by Section 4.07(k) of this Agreement; (ix)
the structuring of the Security Instruments which encumber the Mortgaged Properties
subject to a Master Lease; (x) failure of such Borrower to cure the default
under the ground lease affecting the Mortgaged Property commonly known as
Oakwood Marina Del Rey (having an address of 4111 Via Marina, Marina Del Rey, California); (xi) failure of
such Borrower to


 


54

















 


cure the
default under the ground lease affecting the Mortgaged Property commonly known
as Archstone Marina Del Rey (having an address of 4157 Via Marina, Marina Del Rey, California);
(xii) failure to obtain an estoppel certificate with respect to any Mortgaged
Property that is subject to a ground lease as required by Section 4.07(l);
(xiii) failure to deliver a final survey for any Mortgaged Property as required
by Section 4.07(c) of this Agreement; (xiv) failure to deliver any
commercial lease and/or, to the extent required by Lender, delivery any tenant
estoppel certificate and subordination, non-disturbance and attornment
agreement with respect to any such commercial lease in accordance with Section
4.07(m); (xv) failure to deliver any consent required by Lender in
accordance with Section 4.07(n) of this Agreement, including but not limited
to a consent of the New York City Housing Development Corporation (“HDC”) with respect to the Mortgaged
Property commonly known as Key West, having an address of 750  Columbus Avenue, New York, New York, or the
Mortgaged Property commonly known as The Westmont, having an address of 730
Columbus Avenue, New York, New York, satisfactory to Lender, to the effect that
(A) the transactions contemplated by the Borrower and its Affiliates on the
date hereof have been consented to by the HDC, (B) the foreclosure by Lender
under the Security Instruments relating to such Mortgaged Properties has been
consented to by the HDC, and (C) transfer of such Mortgaged Properties to a
“qualified transferee” reasonably acceptable to Lender in connection with a
foreclosure by Lender under the Security Instruments relating to such Mortgaged
Properties has been consented to by the HDC; or (xvi) failure to comply (or any
allegations of a failure to comply) with Subchapter IV of The Rental Housing
Conversion and Sale Act of 1980, as amended, D.C Law 3-86.


 


(c)           Full Recourse.
Each Collateral Pool Borrower shall be personally liable to Lender for the
payment and performance of all Obligations upon the occurrence of any of the following
Events of Default: (i) a Transfer that is an Event of Default under Section 21  (transfers) of any Security Instrument
securing such Borrower’s Loan; or (ii) a Bankruptcy Event. As used in this
subparagraph, the term “Bankruptcy Event”
means any one or more of the following events which occurs during the Term of
the Agreement:


 


(i)            The Borrower or IDOT
Guarantor (A) commences a voluntary case (or, if applicable, a joint case)
under any chapter of the Bankruptcy Code, (B) institutes (by petition,
application, answer, consent or otherwise) any other bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, dissolution, liquidation or similar
proceeding relating to it under the laws of any jurisdiction, (C) makes a
general assignment for the benefit of creditors, (D) applies for, consents to
or acquiesces in the appointment of any receiver, liquidator, custodian,
sequestrator, trustee or similar officer for it or for all or any substantial
part of the Mortgaged Property or (E) admits in writing its inability to pay
its debts generally as they mature.


 


(ii)           Guarantor or any
Affiliate of Guarantor files an involuntary petition against the Borrower or
IDOT Guarantor under any chapter of the Bankruptcy Code or under any other
bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution,
liquidation or similar proceeding relating to the Borrower or IDOT Guarantor
under the laws of any jurisdiction.


 


(iii)          Both (A) an involuntary
petition under any chapter of the Bankruptcy Code is filed against the Borrower
or IDOT Guarantor or the Borrower or IDOT


 


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Guarantor
directly or indirectly becomes the subject of any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, dissolution, liquidation or similar
proceeding relating to it under the laws of any jurisdiction, or in equity, and
(B) the Borrower or IDOT Guarantor or any Affiliate of the Borrower or IDOT
Guarantor has acted in concert or conspired with such creditors of the Borrower
or IDOT Guarantor (other than the Lender) to cause the filing thereof with the
intent to interfere with enforcement rights of the Lender after the occurrence
of an Event of Default.


 


(d)           Permitted Transfer
Not Release. No Transfer by any party of its Ownership Interests in the
Borrower or IDOT Guarantor shall release the party from liability under this Article
12, this Agreement or any other Loan Document, unless Lender shall have approved
the Transfer in accordance with this Agreement, or such Transfer is otherwise permitted
in this Agreement, and shall have expressly released the party in connection
with the Transfer.


 


(e)           Miscellaneous.
To the extent that any Borrower or IDOT Guarantor has personal liability under
this Section 12.01, or Guarantor has liability under the Guaranty,
such liability shall be joint and several and Lender may exercise its rights
against such Borrower, IDOT Guarantor or Guarantor personally without regard to
whether Lender has exercised any rights against any Mortgaged Property securing
the Loan to such Borrower or any other security, or pursued any rights against
any guarantor, or pursued any other rights available to Lender under the Loan
Documents or Applicable Law. For purposes of this Article 12, the term “Mortgaged Property” shall not include any
funds that (i) have been applied by Borrower or IDOT Guarantor as required or
permitted by the Loan Documents prior to the occurrence of an Event of Default,
or (ii) are owned by Borrower, IDOT Guarantor or Guarantor and which Borrower
or IDOT Guarantor was unable to apply as required or permitted by the Loan Documents
because of a bankruptcy, receivership, or similar judicial proceeding.


 


Section
12.02.      Additional
Borrowers.


 


If the owner
of a Substitute Mortgaged Property is an Additional Borrower or Additional IDOT
Guarantor, the owner of such Substitute Mortgaged Property must demonstrate to
the satisfaction of Lender that:


 


(i)            the Additional
Borrower or IDOT Guarantor is a Single-Purpose entity; and


 


(ii)           the Additional Borrower
or IDOT Guarantor shall be owned as described in Section 6.12.


 


In addition,
on the Closing Date of the addition of a Substitute Mortgaged Property, the owner
of such Substitute Mortgaged Property, if such owner is an Additional Borrower
or Additional IDOT Guarantor, shall become a party to a contribution agreement
in a manner satisfactory to Lender, shall deliver a Certificate of Borrower in
form and substance satisfactory to Lender, and execute and deliver, along with
the other applicable Collateral Pool Borrowers, any other Loan Documents
required by Lender. Any Additional Borrower or Additional IDOT Guarantor of a
Substitute Mortgaged Property which becomes added to a Collateral Pool shall be


 


56

















 


a Borrower or
IDOT Guarantor for purposes of this Agreement and shall execute and deliver to Lender
an amendment adding such Additional Borrower or Additional IDOT Guarantor as a party
to this Agreement and revising the Exhibits hereto, as applicable, to reflect
the Substitute Mortgaged Property, identify the applicable Collateral Pool, and
add the Additional Borrower or Additional IDOT Guarantor, in each case
satisfactory to Lender.


 


Upon the
release of a Mortgaged Property, the Borrower or IDOT Guarantor which owns such
Release Mortgaged Property shall automatically without further action be
released from its obligations under this Agreement and the other Loan
Documents, except for any liabilities or obligations of such Borrower or IDOT
Guarantor which arose prior to the Closing Date of such release, and except as
specifically set forth in Section 18 of the Security Instrument.


 


Section
12.03.      Borrower
Agency Provisions.


 


(a)           Each Borrower, IDOT
Guarantor, Additional Borrower and Additional IDOT Guarantor hereby irrevocably
designates ASOT as the borrower agent (the “Borrower  Agent”)
to be its agent and in such capacity to receive on behalf of Borrower or IDOT
Guarantor all proceeds, receive all notices on behalf of Borrower or IDOT
Guarantor under this Agreement, make all Requests under this Agreement, and
execute, deliver and receive all instruments, certificates, Requests,
documents, amendments, writings and further assurances now or hereafter required
hereunder, on behalf of such Borrower or IDOT Guarantor, and hereby authorizes Lender
to pay over all loan proceeds hereunder in accordance with the direction of
Borrower Agent. Each Borrower and IDOT Guarantor hereby acknowledges that all
notices required to be delivered by Lender to any Borrower or IDOT Guarantor
shall be delivered to Borrower Agent and thereby shall be deemed to have been
received by such Borrower or IDOT Guarantor.


 


(b)           The handling of this credit facility
as a co-borrowing facility with a Borrower Agent in the manner set forth in
this Agreement is solely as an accommodation to Borrower and IDOT Guarantor and
is at their request. Lender shall not incur liability to Borrower or IDOT
Guarantor as a result thereof. To induce Lender to do so and in consideration thereof,
each Borrower and IDOT Guarantor hereby indemnifies the Lender and holds Lender
harmless from and against any and all liabilities, expenses, losses, damages
and claims of damage or injury asserted against Lender by any Person arising
from or incurred by reason of Borrower Agent handling of the financing arrangements
of Borrower or IDOT Guarantor as provided herein, reliance by Lender on any
request or instruction from Borrower Agent or any other action taken by Lender
with respect to this Section 12.03 except due to willful misconduct or
gross negligence of the indemnified party.


 


Section
12.04.      Waivers
With Respect to Other Borrower Secured Obligation.


 


To the extent
that a Security Instrument or any other Loan Document executed by one (1)  Collateral Pool Borrower or IDOT Guarantor
secures an Obligation of another Collateral Pool Borrower or IDOT Guarantor
(the “Other Borrower Secured Obligation”),
and/or to the extent that a Collateral Pool Borrower or IDOT Guarantor has
guaranteed the debt of another Borrower or IDOT Guarantor subject to such
Collateral Pool pursuant to Article 12, the Borrower or IDOT Guarantor
who executed such Loan Document and/or guaranteed such debt (the “Waiving  Borrower”) hereby agrees to the provisions of this Section
12.04. To the extent that any


 


57

















 


Mortgaged
Properties are located in California, the references to the California Code
below shall apply to this Agreement and any California Security Instrument
securing a California Mortgaged Property, otherwise the California Code shall
have no effect on this Agreement or any other Loan Document.


 


(a)           The Waiving Borrower
hereby waives any right it may now or hereafter have to require the
beneficiary, assignee or other secured party under such Loan Document, as a condition
to the exercise of any remedy or other right against it thereunder or under any
other Loan Document executed by the Waiving Borrower in connection with the
Other Borrower Secured Obligation: (i) to proceed against the other Borrower or
IDOT Guarantor or any other person, or against any other collateral assigned to
Lender by either Borrower, IDOT Guarantor or any other person; (ii) to pursue
any other right or remedy in Lender’s power; (iii) to give notice of the time,
place or terms of any public or private sale of real or personal property
collateral assigned to Lender by the other Borrower, IDOT Guarantor or any
other person (other than the Waiving Borrower), or otherwise to comply with
Section 9615 of the California Commercial Code (as modified or recodified from
time to time) with respect to any such personal property collateral located in
the State of California; or (iv) to make or give (except as otherwise expressly
provided in the Security Documents) any presentment, demand, protest, notice of
dishonor, notice of protest or other demand or notice of any kind in connection
with the Other Borrower Secured Obligation or any collateral (other than the
Collateral described in such Security Document) for the Other Borrower Secured
Obligation.


 


(b)           The Waiving Borrower
hereby waives any defense it may now or hereafter have that relates to: (i) any
disability or other defense of the other Borrower, IDOT Guarantor or any other
person; (ii) the cessation, from any cause other than full performance, of the
Other Borrower Secured Obligation; (iF) the application of the proceeds of the
Other Borrower Secured Obligation, by the other Borrower, IDOT Guarantor or any
other person, for purposes other than the purposes represented to the Waiving
Borrower by the other Borrower or IDOT Guarantor or otherwise intended or
understood by the Waiving Borrower or the other Borrower or IDOT Guarantor;
(iv) any act or omission by Lender which directly or indirectly results in or contributes
to the release of the other Borrower, IDOT Guarantor or any other person or any
collateral for any Other Borrower Secured Obligation; (v) the
unenforceability or invalidity of any Security Document or other Borrower or
IDOT Guarantor Loan Document (other than the Security Instrument or
Reimbursement Mortgage executed by the Waiving Borrower that secures the Other
Borrower Secured Obligation) or guaranty with respect to any Other Borrower
Secured Obligation, or the lack of perfection or continuing perfection or lack
of priority of any Lien (other than the Lien of such Security Instrument) which
secures any Other Borrower Secured Obligation; (vi) any failure of Lender to
marshal assets in favor of the Waiving Borrower or any other person; (vii) any
modification of any Other Borrower Secured Obligation, including any renewal,
extension, acceleration or increase in interest rate; (viii) any and all rights
and defenses arising out of an election of remedies by Lender, even though that
election of remedies, such as a nonjudicial foreclosure with respect to
security for a guaranteed obligation, has destroyed the Waiving Borrower’s
rights of subrogation and reimbursement against the principal by the operation
of Section 580d of the California Code of Civil Procedure or otherwise; (ix)
any law which provides that the obligation of a surety or guarantor must
neither be larger in amount nor in other respects more burdensome than that of
the principal or which reduces a surety’s or guarantor’s obligation in
proportion to the principal obligation; (x) any failure of Lender to file


 


58

















 


or enforce a
claim in any bankruptcy or other proceeding with respect to any person; (xi)
the election by Lender, in any bankruptcy proceeding of any person, of the
application or non-application of Section 1111(b)(2) of the Bankruptcy Code;
(xii) any extension of credit or the grant of any lien under Section 364 of the
Bankruptcy Code; (xiii) any use of cash collateral under Section 363 of the
Bankruptcy Code; or (xiv) any agreement or stipulation with respect to the
provision of adequate protection in any bankruptcy proceeding of any person.
The Waiving Borrower further waives any and all rights and defenses that it may
have because the Other Borrower Secured Obligation is secured by real property;
this means, among other things, that:  (A)
Lender may collect from the Waiving Borrower without first foreclosing on any
real or personal property collateral pledged by the other Borrower or IDOT
Guarantor; (B) if Lender forecloses on any real property collateral pledged by
the other Borrower or IDOT Guarantor, then (1) the amount of the Other Borrower
Secured Obligation may be reduced only by the price for which that collateral
is sold at the foreclosure sale, even if the collateral is worth more than the
sale price, and (2) Lender may foreclose on the real property encumbered by the
Security Instrument executed by the Waiving Borrower and securing the Other
Borrower Secured Obligation even if Lender, by foreclosing on the real property
collateral of the Other Borrower, has destroyed any right the Waiving Borrower
may have to collect from the Other Borrower. 
Subject to the last sentence of Section 12.03, the foregoing
sentence is an unconditional and irrevocable waiver of any rights and defenses
the Waiving Borrower may have because the Other Borrower Secured Obligation is
secured by real property. These rights and defenses being waived by the Waiving
Borrower include, but are not limited to, any rights or defenses based upon
Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
Without limiting the generality of the foregoing or any other provision hereof,
the Waiving Borrower further expressly waives, except as provided in Section
12.04(g) below, to the extent permitted by law any and all rights and
defenses, which might otherwise be available to it under California Civil Code
Sections 2787 to 2855, inclusive, 2899 and 3433, or under California Code of
Civil Procedure Sections 580a, 580b, 580d and 726, or any of such sections.


 


(c)           The Waiving Borrower
hereby waives any and all benefits and defenses under California Civil Code
Section 2810 and agrees that by doing so the Security Instrument executed by
the Waiving Borrower and securing the Other Borrower Secured Obligation shall
be and remain in full force and effect even if the other Borrower or IDOT
Guarantor had no liability at the time of incurring the Other Borrower Secured
Obligation, or thereafter ceases to be liable. 
The Waiving Borrower hereby waives any and all benefits and defenses
under California Civil Code Section 2809 and agrees that by doing so the
Waiving Borrower’s liability may be larger in amount and more burdensome than
that of the other Borrower or IDOT Guarantor. The Waiving Borrower hereby
waives the benefit of all principles or provisions of law, which are or might
be in conflict with the terms of any of its waivers, and agrees that the
Waiving Borrower’s waivers shall not be affected by any circumstances, which
might otherwise constitute a legal or equitable discharge of a surety or a
guarantor. The Waiving Borrower hereby waives the benefits of any right of
discharge and all other rights under any and all statutes or other laws
relating to guarantors or sureties, to the fullest extent permitted by law,
diligence in collecting the Other Borrower Secured Obligation, presentment,
demand for payment, protest, all notices with respect to the Other Borrower
Secured Obligation, which may be required by statute, rule of law or otherwise
to preserve Lender’s rights against the Waiving Borrower hereunder, including
notice of acceptance, notice of any amendment of the Loan Documents evidencing
the Other Borrower Secured Obligation, notice of the occurrence of any default
or Event of Default, notice of intent


 


59

















 


to accelerate,
notice of acceleration, notice of dishonor, notice of foreclosure, notice of
protest, notice of the incurring by the other Borrower or IDOT Guarantor of any
obligation or indebtedness and all rights to require Lender to (i) proceed
against the other Borrower or IDOT Guarantor, (ii) proceed against any general
partner of the other Borrower or IDOT Guarantor, (iii) proceed against or
exhaust any collateral held by Lender to secure the Other Borrower Secured
Obligation, or (iv) if the other Borrower or IDOT Guarantor is a partnership,
pursue any other remedy it may have against the other Borrower or IDOT
Guarantor, or any general partner of the other Borrower or IDOT Guarantor,
including any and all benefits under California Civil Code Sections 2845, 2849
and 2850.


 


(d)           The Waiving Borrower
understands that the exercise by Lender of certain rights and remedies
contained in a Security Instrument executed by the other Borrower or IDOT Guarantor
(such as a nonjudicial foreclosure sale) may affect or eliminate the Waiving Borrower’s
right of subrogation against the other Borrower or IDOT Guarantor and that the Waiving
Borrower may therefore incur a partially or totally nonreimburseable liability.  Nevertheless, the Waiving Borrower hereby
authorizes and empowers Lender to exercise, in its sole and absolute
discretion, any right or remedy, or any combination thereof, which may then be available,
since it is the intent and purpose of the Waiving Borrower that its waivers shall
be absolute, independent and unconditional under any and all circumstances.


 


(e)           In accordance with
Section 2856 of the California Civil Code, the Waiving Borrower also waives any
right or defense based upon an election of remedies by Lender, even though such
election (e.g., nonjudicial foreclosure with respect to any collateral held by
Lender to secure repayment of the Other Borrower Secured Obligation) destroys
or otherwise impairs the subrogation rights of the Waiving Borrower to any
right to proceed against the other Borrower for reimbursement, or both, by
operation of Section 580d of the California Code of Civil Procedure or
otherwise.


 


(f)            In accordance with
Section 2856 of the California Civil Code, the Waiving Borrower waives any and
all other rights and defenses available to the Waiving Borrower by reason of
Sections 2787 through 2855, inclusive, of the California Civil Code, including
any and all rights or defenses the Waiving Borrower may have by reason of
protection afforded to the other Borrower or IDOT Guarantor with respect to the
Other Borrower Secured Obligation pursuant to the antideficiency or other laws
of the State of California limiting or discharging the Other Borrower Secured
Obligation, including Sections 580a, 580b, 580d, and 726 of the California Code
of Civil Procedure.


 


(g)           In accordance with
Section 2856 of the California Civil Code and pursuant to any other Applicable
Law, the Waiving Borrower agrees to withhold the exercise of any and all
subrogation, contribution and reimbursement rights against Borrower or IDOT
Guarantor, against any other person, and against any collateral or security for
the Other Borrower Secured Obligation, including any such rights pursuant to
Sections 2847 and 2848 of the California Civil Code, until the Other Borrower
Secured Obligation has been indefeasibly paid and satisfied in full, all
obligations owed to Lender under the Loan Documents have been fully performed,
and Lender have released, transferred or disposed of all of their right, title
and interest in such collateral or security.


 


60

















 


(h)           Each Borrower and IDOT
Guarantor hereby irrevocably and unconditionally agrees that in the event that,
notwithstanding Section 12.04(g) hereof, to the extent its agreement and
waiver set forth in Section 12.04(g) is found by a court of competent jurisdiction
to be void or voidable for any reason and such Borrower or IDOT Guarantor has
any subrogation or other rights against any other Borrower or IDOT Guarantor,
any such claims, direct or indirect, that such Borrower or IDOT Guarantor may
have by subrogation rights or other form of reimbursement, contribution or
indemnity, against any other Borrower or IDOT Guarantor or to any security or
any such Borrower or IDOT Guarantor, shall be and such rights, claims and
indebtedness are hereby deferred, postponed and fully subordinated in time and
right of payment to the prior payment, performance and satisfaction in full of
the Obligations. Until payment and performance in full with interest (including
post-petition interest in any case under any chapter of the Bankruptcy Code) of
the Obligations, each Borrower and IDOT Guarantor agrees not to accept any
payment, or satisfaction of any kind, of Indebtedness of any other Borrower or
IDOT Guarantor in respect of any such subrogation rights arising by virtue of payments
made pursuant to this Article 12, and hereby assigns such rights or
indebtedness to Lender, including the right to file proofs of claim and to vote
thereon in connection with any case under any chapter of the Bankruptcy Code,
including the right to vote on any plan of reorganization. In the event that
any payment on account of any such subrogation rights shall be received by any
Borrower or IDOT Guarantor in violation of the foregoing, such payment shall be
held in trust for the benefit of Lender, and any amount so collected should be
turned over to Lender for application to the Obligations.


 


(i)            At any time without
notice to the Waiving Borrower, and without affecting or prejudicing the right
of Lender to proceed against the Collateral described in any Loan Document
executed by the Waiving Borrower and securing the Other Borrower Secured Obligation,
(i) the time for payment of the principal of or interest on, or the performance
of, the Other Borrower Secured Obligation may be extended or the Other Borrower
Secured Obligation may be renewed in whole or in part; (ii) the time for the
other Borrower’s or IDOT Guarantor’s performance of or compliance with any
covenant or agreement contained in the Loan Documents evidencing the Other
Borrower Secured Obligation, whether presently existing or hereinafter entered
into, may be extended or such performance or compliance may be waived; (iii)
the maturity of the Other Borrower Secured Obligation may be accelerated as
provided in the related Note or any other related Loan Document; (iv) the
related Note or any other related Loan Document may be modified or amended by
Lender and the other Borrower or IDOT Guarantor in any respect, including an
increase in the principal amount; and (v) any security for the Other Borrower
Secured Obligation may be modified, exchanged, surrendered or otherwise dealt
with or additional security may be pledged or mortgaged for the Other Borrower
Secured Obligation.


 


(j)            It is agreed among
each Borrower, IDOT Guarantor and Lender that all of the foregoing waivers are
of the essence of the transaction contemplated by this Agreement and the Loan
Documents and that but for the provisions of this Article 12 and such
waivers Lender would decline to enter into this Agreement. 


 


(k)           Waiving Borrower
represents and warrants having established with other Borrower adequate means
of obtaining, on an ongoing basis, such information as waiving Borrower may
require concerning all matters bearing on the risk of nonpayment or nonperformance
of the Obligations. Waiving Borrower assumes sole, continuing responsibility


 


61

















 


for obtaining
such information from sources other than from Lender. Lender has no duty to provide
any information to Waiving Borrower.


 


Section
12.05.      Joint
and Several Obligation; Cross-Guaranty.


 


Notwithstanding
anything contained in this Agreement or the other Borrower Documents to the
contrary (but subject to the last sentence of Section 12.02 and the
provisions of Section 12.12), each Borrower shall have joint and several
liability for all Obligations of the Loan secured by such Borrower’s Collateral
Pool. Notwithstanding the intent of all of the parties to this Agreement that
all Obligations of each Borrower with respect to a Collateral Pool under this Agreement
and the other Borrower Loan Documents shall be joint and several Obligations of
each Borrower subject to such Collateral Pool, each Borrower, on a joint and
several basis, hereby irrevocably guarantees to Lender and its successors and
assigns, the full and prompt payment of the Loan secured by such Borrower’s
Collateral Pool (whether at stated maturity, by acceleration or otherwise) and
performance of, all Obligations secured by such Borrower’s Collateral Pool owed
or hereafter owing to Lender by each other Borrower owning a Mortgaged Property
subject to the same Collateral Pool. Similarly, each IDOT Guarantor, on a joint
and several basis, hereby irrevocably guarantees to Lender and its successors
and assigns, the full and prompt payment of the Loan secured by such Borrower’s
Collateral Pool (whether at stated maturity, by acceleration or otherwise) and
performance of all Obligations secured by such Borrower’s Collateral Pool owed
or hereafter owing to Lender by each other Borrower and IDOT Guarantor owning a
Mortgaged Property subject to the same Collateral Pool, on a secondary, and not
a primary, basis provided that each IDOT Guarantor’s liability shall be effective
only upon the occurrence of a default by each Borrower. Each Borrower or IDOT Guarantor
agrees that its guaranty obligation hereunder is an unconditional guaranty of
payment and performance and not merely a guaranty of collection. The Obligations
of each Borrower or IDOT Guarantor under this Agreement shall not be subject to
any counterclaim, set-off, recoupment, deduction, cross-claim or defense based
upon any claim any Borrower or IDOT Guarantor may have against Lender or any
other Borrower or IDOT Guarantor.


 


Section
12.06.      No
Impairment.


 


Each Borrower
and IDOT Guarantor agrees that the provisions of this Article 12 are for
the benefit of Lender and their successors, transferees, endorsees and assigns,
and nothing herein contained shall impair, as between any other Borrower or
IDOT Guarantor and Lender, the obligations of such other Borrower or IDOT
Guarantor under the Loan Documents.


 


Section
12.07.      Election
of Remedies.


 


(a)        Lender,
in its discretion, may (i) bring suit against any one or more Collateral Pool
Borrower, jointly and severally, without any requirement that Lender first proceed
against any other Borrower or IDOT Guarantor or any other Person; (ii) compromise
or settle with any one or more Borrower or IDOT Guarantor, or any other Person,
for such consideration as Lender may deem proper; (iii) release one or more
Borrower or IDOT Guarantor, or any other Person, from liability; and (iv)
otherwise deal with any Borrower or IDOT Guarantor and any other Person, or any
one or more of them, in any manner, or resort to any of the Collateral at any
time held by it for performance of the Obligations or any other


 


62

















 


source or
means of obtaining payment of the Obligations, and no such action shall impair
the rights of Lender to collect from any Borrower or IDOT Guarantor any amount
guaranteed by any Borrower or IDOT Guarantor under this Article 12.


 


(b)           If, in the exercise of
any of its rights and remedies, Lender shall forfeit any of its rights or
remedies, including its rights to enter a deficiency judgment against any
Collateral Pool Borrower or any other Person, whether because of any Applicable
Laws pertaining to “election of remedies” or the like, each Collateral Pool
Borrower hereby consents to such action by Lender and waives any claim based
upon such action, even if such action by Lender shall result in a full or
partial loss or any rights of subrogation which each such Borrower might otherwise
have had but for such action by Lender. Any election of remedies which results
in the denial or impairment of the right of Lender to seek a deficiency
judgment against any Collateral Pool Borrower shall not impair any other such
Collateral Pool Borrower’s obligation to pay the full amount of the Obligations
secured by the applicable Collateral Pool. In the event Lender shall bid at any
foreclosure or trustee’s sale or at any private sale permitted by law or any of
the Loan Documents, Lender may bid all or less than the amount of the
Obligations secured by the applicable Collateral Pool and the amount of such
bid need not be paid by Lender but shall be credited against the Obligations
secured by the applicable Collateral Pool. The amount of the successful bid at
any such sale, whether Lender or any other party is the successful bidder,
shall be conclusively deemed to be fair market value of the Collateral secured
by the applicable Collateral Pool and the difference between such bid amount
and the remaining balance of the Obligations secured by the applicable
Collateral Pool shall be conclusively deemed to be amount of the Obligations
secured by the applicable Collateral Pool guaranteed under this Article 12,
notwithstanding that any present or future law or court decision or ruling may
have the effect of reducing the amount of any deficiency claim to which Lender
might otherwise be entitled but for such bidding at any such sale.


 


Section
12.08.      Subordination
of Other Obligations.


 


(a)         Each
Borrower and IDOT Guarantor hereby irrevocably and unconditionally agrees that
all amounts payable from time to time to such Borrower or IDOT Guarantor by any
other Borrower or IDOT Guarantor pursuant to any agreement, whether secured or
unsecured, whether of principal, interest or otherwise, other than the amounts
referred to in this Article 12 (collectively, the “Subordinated Obligations”), shall be
and such rights, claims and indebtedness are, hereby deferred, postponed and
fully subordinated in time and right of payment to the prior payment,
performance and satisfaction in full of the Obligations; provided, however,
that payments may be received by any Borrower or IDOT Guarantor in accordance
with, and only in accordance with, the provisions of Section 12.08(b)
hereof.


 


(b)        Until
the Obligations under all the Loan Documents have been finally paid in full or
fully performed and all the Loan Documents for such Collateral Pool have been terminated,
each such Collateral Pool Borrower and IDOT Guarantor irrevocably and unconditionally
agrees it will not ask, demand, sue for, take or receive, directly or
indirectly, by set-off, redemption, purchase or in any other manner whatsoever,
any payment with respect to, or any security or guaranty for, the whole or any
part of the Subordinated Obligations, and in issuing documents, instruments or
agreements of any kind evidencing the Subordinated Obligations, each such
Collateral Pool Borrower and IDOT Guarantor hereby agrees that it will


 


63

















 


not receive
any payment of any kind on account of the Subordinated Obligations, so long as
any of the Obligations under all the Loan Documents are outstanding or any of
the terms and conditions of any of the Loan Documents are in effect; provided,
however, that, notwithstanding anything to the contrary contained herein, if no
Potential Event of Default or Event of Default or any other event or condition
which would constitute an Event of Default after notice or lapse of time or
both has occurred and is continuing under any of the Loan Documents pertaining
to such Collateral Pool, then (i) payments may be received by such Borrower or
IDOT Guarantor in respect of the Subordinated Obligations in accordance with
the stated terms thereof, and (ii) each such Borrower, IDOT Guarantor and
Guarantor shall be permitted to make distributions in accordance with the terms
of the applicable Organizational Documents. Except as aforesaid, each Borrower
and IDOT Guarantor agrees not to accept any payment or satisfaction of any kind
of indebtedness of any other Borrower or IDOT Guarantor in respect of the
Subordinated Obligations and hereby assigns such rights or indebtedness to
Fannie Mae, which assignment shall be of no further force and effect upon full
satisfaction of the Obligations, including the right to file proofs of claim
and to vote thereon in connection with any case under any chapter of the Bankruptcy
Code, including the right to vote on any plan of reorganization. In the event
that any payment on account of Subordinated Obligations shall be received by
any Borrower or IDOT Guarantor in violation of the foregoing, such payment
shall be held in trust for the benefit of Lender, and any amount so collected
shall be turned over to Lender upon demand.


 


Section
12.09.      Insolvency
and Liability of Other Borrower.


 


So long as any
of the Obligations are outstanding with respect to the applicable Collateral Pool,
if a petition under any chapter of the Bankruptcy Code is filed by or against
any Collateral Pool Borrower or IDOT Guarantor (the “Subject Borrower” for the purposes of Section
12.09, Section 12.10, Section 12.11 and Section 12.12
of this Agreement), each other Collateral Pool Borrower or IDOT Guarantor
subject to such Collateral Pool (each, an “Other
Borrower” for the purposes of Section 12.09, Section 12.10,
Section 12.11 and Section 12.12 of this Agreement) agrees to file
all claims against the Subject Borrower in any bankruptcy or other proceeding
in which the filing of claims is required by law in connection with
indebtedness owed by the Subject Borrower and to assign to Lender all rights
thereunder up to the amount of such indebtedness, which assignment shall be of
no further force and effect upon full satisfaction of the Obligations. In all
such cases, the Person or Persons authorized to pay such claims shall pay to
Lender the full amount thereof and Lender agrees to pay such Other Borrower any
amounts received in excess of the amount necessary to pay the Obligations of
the Loan secured by such Borrower’s or IDOT Guarantor’s Mortgaged Property.
Each Other Borrower hereby assigns to Lender all of such Borrower’s or IDOT
Guarantor’s rights to all such payments to which such Other Borrower would
otherwise be entitled but not to exceed the full amount of the Obligations.  In the event that, notwithstanding the foregoing,
any such payment shall be received by any Other Borrower before the Obligations
shall have been finally paid in full, such payment shall be held in trust for
the benefit of and shall be paid over to Lender upon demand. Furthermore, notwithstanding
the foregoing, the liability of each Borrower or IDOT Guarantor hereunder shall
in no way be affected by:


 


(a)           the release or
discharge of any Other Borrower in any creditors’, receivership, bankruptcy or
other proceedings; or


 


64

















 


(b)           the impairment,
limitation or modification of the liability of any Other Borrower or the estate
of any Other Borrower in bankruptcy resulting from the operation of any present
or future provisions of any chapter of the Bankruptcy Code or other statute or
from the decision in any court.


 


Section
12.10.      Preferences,
Fraudulent Conveyances, Etc.


 


If Lender is
required to refund, or voluntarily refunds, any payment received from any Borrower
or IDOT Guarantor because such payment is or may be avoided, invalidated,
declared fraudulent, set aside or determined to be void or voidable as a
preference, fraudulent conveyance, impermissible setoff or a diversion of trust
funds under the bankruptcy laws or for any similar reason, including without
limitation any judgment, order or decree of any court or administrative body
having jurisdiction over any Borrower or IDOT Guarantor or any of its property,
or upon or as a result of the appointment of a receiver, intervenor, custodian
or conservator of, or trustee or similar officer for, any Borrower or IDOT
Guarantor or any substantial part of its property, or otherwise, or any
statement or compromise of any claim effected by Lender with any Borrower or
IDOT Guarantor or any other claimant (a “Rescinded
Payment”), then each Other Borrower’s liability to Lender shall
continue in full force and effect, or each Other Borrower’s liability to Lender
shall be reinstated and renewed, as the case may be, with the same effect and to
the same extent as if the Rescinded Payment had not been received by Lender, notwithstanding
the cancellation or termination of any of the Loan Documents, and regardless of
whether Lender contested the order requiring the return of such payment. In
addition, each Other Borrower shall pay, or reimburse Lender for, all expenses
(including all reasonable attorneys’ fees, court costs and related
disbursements) incurred by Lender in the defense of any claim that a payment
received by Lender in respect of all or any part of the Obligations must be refunded.
The provisions of this Section 12.10 shall survive the termination of
the Borrower or IDOT Guarantor Loan Documents and any satisfaction and
discharge of any Borrower or IDOT Guarantor by virtue of any payment, court
order or any federal or state law.


 


Section
12.11.      Maximum
Liability of Each Borrower.


 


Notwithstanding
anything contained in this Agreement or any of the Loan Documents to the
contrary, if the obligations of any Borrower or IDOT Guarantor under this
Agreement or any of the other Loan Documents or any Security Instruments
granted by any Borrower or IDOT Guarantor are determined to exceed the
reasonably equivalent value received by such Borrower or IDOT Guarantor in
exchange for such obligations or grant of such Security Instruments under any
Fraudulent Transfer Law (as hereinafter defined), then such liability of such
Borrower or IDOT Guarantor shall be limited to a maximum aggregate amount equal
to the largest amount that would not render its obligations under this
Agreement or all the Other Borrower Documents subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of Title 11 of the United
States Code or any applicable provisions of comparable state law (collectively,
the “Fraudulent Transfer Laws”),
in each case after giving effect to all other liabilities of such Borrower or
IDOT Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Borrower or IDOT Guarantor in respect of Indebtedness to any Other Borrower or
any other Person that is an Affiliate of the Other Borrower to the extent that
such Indebtedness would be discharged in an amount equal to the amount paid by
such Borrower or IDOT Guarantor in respect of the


 


65

















 


Obligations)
and after giving effect (as assets) to the value (as determined under the
applicable provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, reimbursement, indemnification or contribution of such Borrower or
IDOT Guarantor pursuant to Applicable Law or pursuant to the terms of any
agreement including the Contribution Agreement.


 


Section
12.12.      Liability
Cumulative.


 


The liability
of each Borrower or IDOT Guarantor under this Article 12 is in addition
to and shall be cumulative with all liabilities of such Borrower or IDOT
Guarantor to Lender under this Agreement and all the other Loan Documents to
which such Borrower or IDOT Guarantor is a party or in respect of any Obligations
of any Other Borrower.


 


ARTICLE 13


MISCELLANEOUS PROVISIONS


 


Section
13.01.      Counterparts.


 


To facilitate
execution, this Agreement may be executed in any number of counterparts.  It shall not be necessary that the signatures
of, or on behalf of, each party, or that the signatures of all persons required
to bind any party, appear on each counterpart, but it shall be sufficient that
the signature of, or on behalf of, each party, appear on one (1) or more
counterparts. All counterparts shall collectively constitute a single
agreement. It shall not be necessary in making proof of this Agreement to
produce or account for more than the number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.


 


Section
13.02.      Amendments,
Changes and Modifications.


 


This Agreement
may be amended, changed, modified, altered or terminated only by written
instrument or written instruments signed by all of the parties hereto.


 


Section
13.03.      Payment
of Costs, Fees and Expenses.


 


The applicable
Collateral Pool Borrower shall pay, on demand, all reasonable third-party out-of-pocket
fees, costs, charges or expenses (including the reasonable fees and expenses of
attorneys, accountants and other experts) incurred by Lender in connection with:


 


(a)           Any amendment, consent,
review or waiver to or requested under this Agreement or any of the Loan
Documents (whether or not any such amendments, consents or waivers are entered
into) for such Collateral Pool.


 


(b)           Defending or
participating in any litigation arising from actions by third parties and
brought against or involving Lender with respect to (i) any Mortgaged Property
in such Collateral Pool, (ii) any event, act, condition or circumstance in
connection with any Mortgaged Property in such Collateral Pool, or (iii) the
relationship between Lender and such Borrower and Guarantor in connection with
this Agreement or any of the transactions contemplated by this Agreement.


 


66

















 


(c)           The administration or
enforcement of, or preservation of rights or remedies under, this Agreement or
any other Loan Documents or in connection with the foreclosure upon, sale of or
other disposition of any Collateral granted pursuant to the Loan Documents.


 


The applicable
Collateral Pool Borrower shall also pay, on demand, any transfer taxes, documentary
taxes, assessments or charges made by any Governmental Authority by reason of the
execution, delivery, filing, recordation, performance or enforcement of any of
the Loan Documents or the Loans. However, such Borrower will not be obligated
to pay any franchise, excise, estate, inheritance, income, excess profits or
similar tax on Lender. Any attorneys’ fees and expenses payable by such
Borrower pursuant to this Section 13.03 shall be recoverable separately
from and in addition to any other amount included in such judgment, and such obligation
is intended to be severable from the other provisions of this Agreement and to
survive and not be merged into any such judgment. Any amounts payable by
Borrower pursuant to this Section 13.03, with interest thereon if not
paid when due, shall become additional Indebtedness of such Borrower secured by
the Loan Documents evidencing the Loan secured by Borrower’s or IDOT
Guarantor’s Mortgaged Property. Such amounts shall bear interest from the date
such amounts are due until paid in full at the weighted average, as determined
by Lender, of the interest rates in effect from time to time for each Loan
unless collection from such Borrower of interest at such rate would be contrary
to Applicable Law, in which event such amounts shall bear interest at the
highest rate which may be collected from such Borrower under Applicable Law.
The provisions of this Section 13.03 are cumulative with, and do not exclude
the application and benefit to Lender of, any provision of any other Loan
Document relating to any of the matters covered by this Section 13.03.


 


Section
13.04.      Payment
Procedure.


 


All payments
to be made to Lender pursuant to this Agreement or any of the Loan Documents
shall be made in lawful currency of the United States of America and in
immediately available funds by wire transfer to an account designated by Lender
before 1:00 p.m. (Eastern Standard Time or Eastern Daylight Time, as
applicable) on the date when due.


 


Section
13.05.      Payments
on Business Days.


 


In any case in
which the date of payment to Lender or the expiration of any time period hereunder
occurs on a day which is not a Business Day, then, unless expressly otherwise provided,
such payment or expiration of such time period need not occur on such date but
may be made on the next succeeding Business Day with the same force and effect
as if made on the day of maturity or expiration of such period, except that
interest shall continue to accrue for the period after such date to the next
Business Day.


 


Section
13.06.      Choice
of Law; Consent to Jurisdiction; Waiver of Jury Trial.


 


NOTWITHSTANDING
ANYTHING IN THE NOTES, THE SECURITY DOCUMENTS OR ANY OF THE OTHER LOAN
DOCUMENTS TO THE CONTRARY, EACH OF THE TERMS AND PROVISIONS, AND RIGHTS AND
OBLIGATIONS OF BORROWER OR IDOT GUARANTOR UNDER THIS AGREEMENT AND THE NOTES,


 


67

















 


GUARANTOR
UNDER THE GUARANTY, AND BORROWER, IDOT GUARANTOR AND GUARANTOR UNDER THE OTHER
LOAN DOCUMENTS, SHALL BE GOVERNED BY, INTERPRETED, CONSTRUED AND ENFORCED
PURSUANT TO AND IN ACCORDANCE WITH THE LAWS OF THE DISTRICT OF COLUMBIA
(EXCLUDING THE LAW APPLICABLE TO CONFLICTS OR CHOICE OF LAW) EXCEPT TO THE EXTENT
OF PROCEDURAL AND SUBSTANTIVE MATTERS RELATING ONLY TO (i)  THE CREATION, PERFECTION AND FORECLOSURE OF
LIENS AND SECURITY INTERESTS, AND ENFORCEMENT OF THE RIGHTS AND REMEDIES,
AGAINST THE MORTGAGED PROPERTIES, WHICH MATTERS SHALL BE GOVERNED BY THE LAWS OF
THE JURISDICTION IN WHICH THE MORTGAGED PROPERTY IS LOCATED, (ii)  THE PERFECTION, THE EFFECT OF PERFECTION AND
NON-PERFECTION AND FORECLOSURE OF SECURITY INTERESTS ON PERSONAL PROPERTY
(OTHER THAN DEPOSIT ACCOUNTS), WHICH MATTERS SHALL BE GOVERNED BY THE LAWS OF THE
JURISDICTION DETERMINED BY THE CHOICE OF LAW PROVISIONS OF THE UNIFORM
COMMERCIAL CODE IN EFFECT FOR THE JURISDICTION IN WHICH THE MORTGAGED PROPERTY
IS LOCATED AND (iii) THE PERFECTION, THE EFFECT OF PERFECTION AND
NON-PERFECTION AND FORECLOSURE OF DEPOSIT ACCOUNTS, WHICH MATTERS SHALL BE
GOVERNED BY THE LAWS OF THE JURISDICTION IN WHICH THE DEPOSIT ACCOUNT IS
LOCATED. BORROWER, IDOT GUARANTOR AND GUARANTOR AGREE THAT ANY CONTROVERSY
ARISING UNDER OR IN RELATION TO THE NOTES, THE SECURITY DOCUMENTS (OTHER THAN
THE SECURITY INSTRUMENTS) OR ANY OTHER LOAN DOCUMENT SHALL BE, EXCEPT AS
OTHERWISE PROVIDED HEREIN, LITIGATED IN DISTRICT OF COLUMBIA. THE LOCAL AND
FEDERAL COURTS AND AUTHORITIES WITH JURISDICTION IN DISTRICT OF COLUMBIA SHALL,
EXCEPT AS OTHERWISE PROVIDED HEREIN, HAVE JURISDICTION OVER ALL CONTROVERSIES
WHICH MAY ARISE UNDER OR IN RELATION TO THE LOAN DOCUMENTS, INCLUDING THOSE
CONTROVERSIES RELATING TO THE EXECUTION, JURISDICTION, BREACH, ENFORCEMENT OR COMPLIANCE
WITH THE NOTES, THE SECURITY DOCUMENTS (OTHER THAN THE SECURITY INSTRUMENTS) OR
ANY OTHER ISSUE ARISING UNDER, RELATING TO, OR IN CONNECTION WITH ANY OF THE
LOAN DOCUMENTS. BORROWER, IDOT GUARANTOR AND GUARANTOR IRREVOCABLY CONSENT TO
SERVICE, JURISDICTION, AND VENUE OF SUCH COURTS FOR ANY LITIGATION ARISING FROM
THE NOTES, THE SECURITY DOCUMENTS OR ANY OF THE OTHER LOAN DOCUMENTS, AND
WAIVES ANY OTHER VENUE TO WHICH IT MIGHT BE ENTITLED BY VIRTUE OF DOMICILE,
HABITUAL RESIDENCE OR OTHERWISE.  NOTHING
CONTAINED HEREIN, HOWEVER, SHALL PREVENT LENDER FROM BRINGING ANY SUIT, ACTION
OR PROCEEDING OR EXERCISING ANY RIGHTS AGAINST BORROWER, IDOT GUARANTOR AND
GUARANTOR AND AGAINST THE COLLATERAL IN ANY OTHER JURISDICTION IN WHICH ANY
MORTGAGED PROPERTY IS LOCATED. INITIATING SUCH SUIT, ACTION OR PROCEEDING OR TAKING
SUCH ACTION IN ANY OTHER PERMITTED JURISDICTION SHALL IN NO EVENT CONSTITUTE A
WAIVER OF THE AGREEMENT CONTAINED HEREIN THAT THE LAWS OF DISTRICT OF COLUMBIA
SHALL GOVERN THE RIGHTS AND OBLIGATIONS OF BORROWER, IDOT GUARANTOR AND GUARANTOR
AND LENDER AS PROVIDED HEREIN OR THE SUBMISSION HEREIN BY BORROWER,


 


68

















 


IDOT GUARANTOR
AND GUARANTOR TO PERSONAL JURISDICTION WITHIN THE DISTRICT OF COLUMBIA.
BORROWER, IDOT GUARANTOR, GUARANTOR AND LENDER (I) COVENANT AND AGREE NOT TO
ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING UNDER ANY OF THE LOAN
DOCUMENTS TRIABLE BY A JURY AND (II) WAIVE ANY RIGHT TO TRIAL BY JURY TO THE EXTENT
THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST. THIS WAIVER IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A
JURY TRIAL WOULD OTHERWISE ACCRUE. FURTHER, BORROWER, IDOT GUARANTOR AND
GUARANTOR HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF LENDER (INCLUDING,
BUT NOT LIMITED TO, LENDER’S COUNSEL) HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
TO BORROWER, IDOT GUARANTOR OR GUARANTOR THAT LENDER WILL NOT SEEK TO ENFORCE
THE PROVISIONS OF THIS SECTION. THE FOREGOING PROVISIONS WERE KNOWINGLY,
WILLINGLY AND VOLUNTARILY AGREED TO BY BORROWER, IDOT GUARANTOR AND GUARANTOR
UPON CONSULTATION WITH INDEPENDENT LEGAL COUNSEL SELECTED BY BORROWER’S, IDOT
GUARANTOR’S AND GUARANTOR’S FREE WILL.


 


Section
13.07.      Severability.


 


In the event
any provision of this Agreement or in any other Loan Document shall be held
invalid, illegal or unenforceable in any jurisdiction, such provision will be
severable from the remainder hereof as to such jurisdiction and the validity,
legality and enforceability of the remaining provisions will not in any way be
affected or impaired in any jurisdiction.


 


Section
13.08.      Notices.


 


(a)           Manner of Giving
Notice. Each notice, direction, certificate or other communication
hereunder (in this Section 13.08 referred to collectively as “notices” and singly as a “notice”) which any party is required or
permitted to give to the other party pursuant to this Agreement shall be in
writing and shall be deemed to have been duly and sufficiently given if: 


 


(i)            personally delivered
with proof of delivery thereof (any notice so delivered shall be deemed to have
been received at the time so delivered);


 


(ii)           sent by Federal Express
(or other similar reputable overnight courier) designating morning delivery
(any notice so delivered shall be deemed to have been received on the Business
Day it is delivered by the courier);


 


(iii)          sent by telecopier or
facsimile machine which automatically generates a transmission report that
states the date and time of the transmission, the length of the document
transmitted, and the telephone number of the recipient’s telecopier or
facsimile machine (to be confirmed with a copy thereof sent in accordance with
paragraphs (i) or (ii) above within two (2) Business Days) (any notice so
delivered shall be deemed to have been received (A) on the date of transmission,
if so transmitted before 5:00 p.m. (local time of the recipient) on a Business
Day, or (B) on the next Business Day, if so transmitted on or after 5:00 p.m.
(local time of the recipient) on a Business Day or if transmitted on a day
other than a Business Day);


 


69

















 


addressed to the parties as follows:


 


	
  As to each
  Borrower

  	
  Archstone-Smith
  Operating Trust

  
	
  and IDOT
  Guarantor: 

  	
  9200 E.
  Panorama Circle

  
	
   

  	
  Suite 400

  
	
   

  	
  Englewood,
  Colorado 80112

  
	
   

  	
  Attention:

  	
  General
  Counsel

  
	
   

  	
  Telecopy:

  	
  (303)
  708-6954

  
	
   

  	
  Email:

  	
  treif@archstonesmith.com

  
	
   

  	
   

  	
   

  
	
  with a copy
  to:

  	
  Tishman
  Speyer

  
	
   

  	
  45
  Rockefeller Plaza

  
	
   

  	
  New York,
  New York 10111

  
	
   

  	
  Attention:

  	
  General
  Counsel

  
	
   

  	
  Telecopy:

  	
  (212)
  895-0353

  
	
   

  	
  Email:

  	
  mbenner@tishmanspeyer.com

  
	
   

  	
   

  	
   

  
	
  And to:

  	
  Schulte Roth
  & Zabel

  
	
   

  	
  919 Third
  Avenue

  
	
   

  	
  New York,
  New York 10022

  
	
   

  	
  Attention:

  	
  Andrew J.
  Dady, Esq.

  
	
   

  	
  Telecopy:

  	
  (212)
  593-5955

  
	
   

  	
  Email:

  	
  Andrew.dady@srz.com

  
	
   

  	
   

  	
   

  
	
  And to:

  	
  Tishman
  Speyer

  
	
   

  	
  45
  Rockefeller Plaza

  
	
   

  	
  New York,
  New York 10111

  
	
   

  	
  Attention:

  	
  Chief
  Financial Officer

  
	
   

  	
  Telecopy:

  	
  (212)
  895-0314

  
	
   

  	
  Email:

  	
  jrosenth@tishmanspeyer.com

  
	
   

  	
   

  	
   

  
	
  As to
  Lender:

  	
  Lehman
  Brothers Holdings Inc.

  
	
   

  	
  399 Park
  Avenue

  
	
   

  	
  New York,
  New York 10022

  
	
   

  	
  Attention:

  	
  Robert
  Ashmun

  
	
   

  	
  Telecopy:

  	
  (646)
  758-4376

  
	
   

  	
  Email:

  	
  rashmun@lehman.com

  
	
   

  	
   

  	
   

  
	
  And to:

  	
  Weil,
  Gotshal & Manges LLP

  
	
   

  	
  767 Fifth
  Avenue

  
	
   

  	
  New York,
  New York 10153

  
	
   

  	
  Attention:

  	
  W. Michael
  Bond, Esq.

  
	
   

  	
  Telecopy:

  	
  (212)
  310-8007

  
	
   

  	
  Email:

  	
  Michael.bond@weil.com

  
	
   

  	
   

  	
   

  
	
  provided
  that after

  	
   

  	
   

  
	
  the Initial
  Closing

  	
   

  	
   

  



 


70

















 


	
  Date, to:

  	
  Wachovia
  Multifamily Capital, Inc.

  
	
   

  	
  375 Park
  Avenue

  
	
   

  	
  Mail Code NY
  4060

  
	
   

  	
  New York,
  New York 10152

  
	
   

  	
  Attention:

  	
  David S.
  Kaplan

  
	
   

  	
  Telecopy:

  	
  (212)
  214-8461

  
	
   

  	
   

  	
   

  
	
  As to Fannie
  Mae:

  	
  Fannie Mae

  
	
   

  	
  3900
  Wisconsin Avenue, N.W.

  
	
   

  	
  Washington,
  D.C. 20016-2899

  
	
   

  	
  Attention:

  	
  Vice
  President for

  
	
   

  	
   

  	
  Multifamily
  Asset Management

  
	
   

  	
  Telecopy
  No.:

  	
  (301)
  280-2064

  
	
   

  	
   

  	
   

  
	
  with a copy
  to:

  	
  Venable LLP

  
	
   

  	
  575 7th
  Street, N.W.

  
	
   

  	
  Washington,
  D.C. 20004

  
	
   

  	
  Attention:

  	
  Stephanie L.
  DeLong, Esq.

  
	
   

  	
  Telecopy
  No.:

  	
  (202)
  344-8300

  



 


(b)           Change of Notice
Address. Any party may, by notice given pursuant to this Section 13.08,
change the person or persons and/or address or addresses, or designate an additional
person or persons or an additional address or addresses, for its notices, but
notice of a change of address shall only be effective upon receipt. Each party
agrees that it shall not refuse or reject delivery of any notice given
hereunder, that it shall acknowledge, in writing, receipt of the same upon request
by the other party and that any notice rejected or refused by it shall be deemed
for all purposes of this Agreement to have been received by the rejecting party
on the date so refused or rejected, as conclusively established by the records
of the U.S. Postal Service, the courier service or facsimile.


 


Section
13.09.      Further
Assurances and Corrective Instruments.


 


(a)           Further Assurances.
To the extent permitted by law, the parties hereto agree that they shall, from
time to time, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such supplements hereto and such further
instruments as Lender, Borrower or IDOT Guarantor may reasonably request and as
may be required in the opinion of Lender or its counsel to effectuate the
intention of or facilitate the performance of this Agreement or any Loan
Document.


 


(b)           Further
Documentation. Without limiting the generality of subsection (a), in the
event any further documentation or information is required by Lender to correct
patent mistakes in the Loan Documents, materials relating to the Title
Insurance Policies or the funding of the Loans, Borrower and IDOT Guarantor
shall provide, or cause to be provided to Lender, at its cost and expense, such
documentation or information. Borrower and IDOT Guarantor shall execute and
deliver to Lender such documentation, including any amendments, corrections,


 


71

















 


deletions or
additions to the Notes, the Security Instruments or the other Loan Documents as
is reasonably required by Lender.


 


Section
13.10.      Term
of this Agreement.


 


This Agreement
shall continue in effect until the Facility Termination Date.


 


Section
13.11.      Assignments;
Third-Party Rights.


 


No Borrower
shall assign this Agreement, or delegate any of its obligations hereunder, without
the prior written consent of Lender. Lender may assign its rights and
obligations under this Agreement separately or together, without Borrower’s
consent, only to Fannie Mae or other entity if such assignment is made with the
intent that such entity will further assign such rights and obligations to
Fannie Mae, but may not delegate its obligations under this Agreement unless it
first receives Fannie Mae’s written approval. Upon assignment to Fannie Mae, Fannie
Mae shall be permitted to further assign its rights and obligations under this
Agreement.


 


Section
13.12.      Headings.


 


Article and
Section headings used herein are for convenience of reference only, are not part
of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.


 


Section
13.13.      General
Interpretive Principles.


 


For purposes
of this Agreement, except as otherwise expressly provided or unless the context
otherwise requires, (i) the terms defined in Appendix I and elsewhere in
this Agreement have the meanings assigned to them in this Agreement and include
the plural as well as the singular, and the use of any gender herein shall be
deemed to include the other genders; (ii) 
accounting terms not otherwise defined herein have the meanings assigned
to them in accordance with GAAP; (iii) references herein to “Articles,”
“Sections,” “subsections,” “paragraphs” and other subdivisions without
reference to a document are to designated Articles, Sections, subsections,
paragraphs and other subdivisions of this Agreement; (iv) a reference to a subsection
without further reference to a Section is a reference to such subsection as
contained in the same Section in which the reference appears, and this rule
shall also apply to paragraphs and other subdivisions; (v) a reference to an
Exhibit or a Schedule without a further reference to the document to which the
Exhibit or Schedule is attached is a reference to an Exhibit or Schedule to this
Agreement; (vi) the words “herein,” “hereof,” “hereunder” and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and (vii) the word “including” means “including, but not limited
to.”


 


Section
13.14.      Interpretation.


 


The parties
hereto acknowledge that each party and their respective counsel have participated
in the drafting and revision of this Agreement and the Loan Documents.  Accordingly, the parties agree that any rule
of construction which disfavors the drafting party shall not apply in the
interpretation of this Agreement and the Loan Documents or any amendment or
supplement or exhibit hereto or thereto.


 


72

















 


Section
13.15.      Standards
for Decisions, Etc.


 


Unless otherwise
provided herein, if Lender’s approval is required for any matter hereunder,
such approval may be granted or withheld in Lender’s sole and absolute
discretion.  Unless otherwise provided
herein, if Lender’s designation, determination, selection, estimate, action or
decision is required, permitted or contemplated hereunder, such designation, determination,
selection, estimate, action or decision shall be made in Lender’s sole and
absolute discretion.


 


Section
13.16.      Decisions
in Writing.


 


Any approval,
designation, determination, selection, action or decision of Lender or Borrower
must be in writing to be effective.


 


Section
13.17.      Approval
of Waivers.


 


Unless
otherwise agreed by Lender, any modifications set forth in this Agreement and
the other Loan Documents which are modifications to or waivers from the terms
and conditions applicable to similar loans made by Lender and sold to Fannie
Mae shall remain in effect only for so long as such Borrower controlled by
Guarantor, are parties to this Agreement and such Loans are subject to this
Agreement.


 


Section
13.18.      USA
Patriot Act.


 


Lender hereby
notifies each Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)), it is
required to obtain, verify and record information that identifies each
Borrower, which information includes the name and address of each Borrower and
other information that will allow such Lender to identify each Borrower in
accordance with such Act.


 


Section
13.19.      All
Asset Filings.


 


If Lender
believes that an “all-asset” collateral description, as contemplated by Section
9-504(2) of the UCC, is appropriate as to any Collateral under any Loan
Document, the Lender is irrevocably authorized to use such a collateral description,
whether in one or more separate filings or as part of the collateral
description in a filing that particularly describes the Collateral.


 


Section
13.20.      Special
Provisions Regarding ASN Kendall Square LLC.


 


The parties
acknowledge that, on or about September 20, 2007, ASN Worthington Place LLC
merged with and into ASN Kendall Square LLC, and that ASN Kendall Square LLC is
the surviving entity. The parties acknowledge and agree that any reference in
any Loan Document to ASN Worthington Place LLC shall be deemed to be a
reference to ASN Kendall Square LLC and ASN Kendall Square LLC shall be
responsible for all of the obligations of such entity.


 


73

















 


Section
13.21.      Special
Provisions Regarding Payment of Interest on Imposition Deposits.


 


Notwithstanding
anything in the Loan Documents to the contrary, including but not limited to
Section 7(b) of each Security Instrument, Lender shall be required to pay
Borrower any interest, earnings or profits on the Imposition Deposits at a rate
per annum equal to the prevailing Federal Funds Target Rate less .25% and not
the Federal Funds Effective Rate, as otherwise set forth in the Security
Instruments. “Federal Funds Target Rate”
shall mean, for any day, the rate per annum announced by the Federal Reserve
Board as the “Federal Funds Target Rate.”


 


[Remainder of page intentionally left blank.]


 


74
















 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  Pool 1

  
	
   

  	
   

  
	
   

  	
  ARCHSTONE BEAR HILL BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN BEAR HILL LLC, a Delaware limited 

  
	
   

  	
  liability company 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ARCHSTONE CUPERTINO BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  CUPERTINO, L.L.C., a Delaware limited liability

  company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ARCHSTONE EMERALD PARK BORROWER:

  
	
   

  	
   

  
	
   

  	
  tishman speyer archstone-smith

  emerald park, l.l.c., a Delaware limited

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
					



 


S-1

















 


	
   

  	
  ARCHSTONE HACIENDA BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  HACIENDA, L.L.C., a Delaware limited liability 

  company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ARCHSTONE MOUNTAIN VIEW BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  MOUNTAIN VIEW,  L.L.C.,
  a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ARCHSTONE QUARRY HILLS BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN QUARRY HILLS LLC, a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ARCHSTONE REDWOOD SHORES 

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  REDWOOD SHORES, L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-2

















 


	
   

  	
  ARCHSTONE WATERTOWN SQUARE 

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN WATERTOWN LLC, a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Pool 2

  



 


	
   

  	
  ARCHSTONE LA JOLLA COLONY 

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN LA JOLLA COLONY LLC, a Delaware 

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ARCHSTONE LOS FELIZ BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN LOS FELIZ LLC, a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-3

















 


	
   

  	
  ARCHSTONE OLD TOWN PASADENA 

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  OLD TOWN PASADENA, L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ARCHSTONE PLAYA DEL REY BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  PLAYA DEL REY, L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ARCHSTONE REDMOND LAKEVIEW 

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN REDMOND LAKEVIEW LLC, a Delaware 

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-4

















 


	
   

  	
  ARCHSTONE SOUTH MARKET BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  SOUTH MARKET, L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ARCHSTONE THOUSAND OAKS BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  THOUSAND OAKS, L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ARCHSTONE WALNUT RIDGE BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN WALNUT RIDGE LLC, a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ARCHSTONE KENDALL SQUARE 

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN WORTHINGTON PLACE LLC, a 

  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


S-5

















 


	
   

  	
  ARCHSTONE SAN MATEO BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN SAN MATEO LLC, a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  CARMARGUE BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  
	
   

  	
  CARMARGUE I, L.L.C., a Delaware limited
  liability

  
	
   

  	
  company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  CARMARGUE II, L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  CARMARGUE III, L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-6

















 


	
   

  	
  Pool 3

  
	
   

  	
   

  
	
   

  	
  2201 WILSON BOULEVARD BORROWER:

  
	
   

  	
   

  
	
   

  	
  SMITH PROPERTY HOLDINGS WILSON 

  L.L.C., a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ARCHSTONE DEL MAR STATION 

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  DEL MAR STATION, L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ARCHSTONE SANTA MONICA BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN SANTA MONICA LLC, a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-7

















 


	
   

  	
  ARCHSTONE SANTA MONICA ON MAIN 

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  SANTA MONICA ON MAIN, L.L.C., a 

  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ARCHSTONE WESTSIDE BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  WESTSIDE, L.L.C., a Delaware limited liability
  company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


	
   

  	
  BALLSTON PLACE BORROWER:

  
	
   

  	
   

  
	
   

  	
  SMITH PROPERTY HOLDINGS BALLSTON 

  PLACE L.L.C., a Delaware limited liability 

  company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-8

















 


	
   

  	
  GALLERY AT ROSSLYN BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  GALLERY AT ROSSLYN, L.L.C., a Delaware 

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  PARC VISTA BORROWER:

  
	
   

  	
   

  
	
   

  	
  SMITH PROPERTY HOLDINGS PARC 

  VISTA L.L.C., a Delaware limited liability 

  company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  WATER PARK TOWERS BORROWER:

  
	
   

  	
   

  
	
   

  	
  SMITH PROPERTY HOLDINGS WATER 

  PARK TOWERS L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ARCHSTONE SANTA CLARA BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN SANTA CLARA LLC, a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-9

















 


	
   

  	
  ARCHSTONE OAK CREEK BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  OAK CREEK I, L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  OAK CREEK II, L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ARCHSTONE HOBOKEN BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN HOBOKEN I LLC, a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ASN HOBOKEN II LLC, a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-10

















 


	
   

  	
  ARCHSTONE STUDIO CITY BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN STUDIO CITY LLC, a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  STUDIO CITY III-A, L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  STUDIO CITY III-B, L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  STUDIO CITY III-C, L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-11

















 


	
   

  	
  CONNECTICUT HEIGHTS BORROWER:

  
	
   

  	
   

  
	
   

  	
  SMITH PROPERTY HOLDINGS SIX (D.C.) 

  L.P., a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Smith Six, Inc., a Delaware corporation, its

  
	
   

  	
   

  	
  Managing General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  
							



 


 


	
   

  	
  PARK CONNECTICUT BORROWER:

  
	
   

  	
   

  
	
   

  	
  SMITH PROPERTY HOLDINGS 4411 

  CONNECTICUT L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Archstone-Smith Operating Trust, a                

  
	
   

  	
   

  	
  Maryland real estate investment trust,

  
	
   

  	
   

  	
  Managing Member

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  
							



 


 


	
   

  	
  Pool 4

  
	
   

  	
   

  
	
   

  	
  CAMBRIDGE PARK PLACE BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN CAMBRIDGE PARK LLC, a Delaware 

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-12

















 


	
   

  	
  ARCHSTONE RESTON LANDING 

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  SMITH PROPERTY HOLDINGS RESTON 

  LANDING L.L.C., a Delaware limited liability 

  company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ARLINGTON COURTHOUSE PLACE 

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  COURTHOUSE HILL LLC, a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


	
   

  	
  ARCHSTONE JEFFERSON SIMI VALLEY 

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  SIMI VALLEY, L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-13

















 


	
   

  	
  ARCHSTONE TYSONS CORNER BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  TYSONS CORNER, L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ARCHSTONE CRONIN’S LANDING 

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  CRONIN’S LANDING, L.L.C., a Delaware limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ARLINGTON COURTHOUSE PLAZA 

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  ARLINGTON COURTHOUSE PLAZA, L.L.C., 

  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-14

















 


	
   

  	
  ARCHSTONE MARINA DEL REY BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  MARINA DEL REY-I, L.L.C., a Delaware 

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  MARINA DEL REY-II, L.L.C., a Delaware 

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


	
   

  	
  ALBAN TOWERS BORROWER:

  
	
   

  	
   

  
	
   

  	
  SMITH PROPERTY HOLDINGS ALBAN 

  TOWERS, L.L.C., a Delaware limited liability 

  company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Archstone-Smith Operating Trust, a

  
	
   

  	
   

  	
  Maryland real estate investment trust,

  
	
   

  	
   

  	
  Managing Member

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  
							



 


S-15

















 


	
   

  	
   

  	
  ALBAN TOWERS, L.L.C., a District of Columbia

  
	
   

  	
   

  	
  limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Smith Property Holdings Alban Towers,

  
	
   

  	
   

  	
   

  	
  L.L.C., a Delaware limited liability

  
	
   

  	
   

  	
   

  	
  company, its Sole Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Archstone-Smith Operating Trust, a

  
	
   

  	
   

  	
   

  	
   

  	
  Maryland real estate investment

  
	
   

  	
   

  	
   

  	
   

  	
  trust, Managing Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By

  	
  /s/ Gary Kravetz

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CALVERT WOODLEY BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CLEVELAND HOUSE BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2501 PORTER STREET BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SMITH PROPERTY HOLDINGS THREE (DC) 

  
	
   

  	
   

  	
  L.P., a Delaware limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Smith Property Holdings Three L.P., a

  
	
   

  	
   

  	
   

  	
  Delaware limited partnership, its Managing

  
	
   

  	
   

  	
   

  	
  General Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Smith Three, Inc., a Delaware

  
	
   

  	
   

  	
   

  	
   

  	
  corporation, its Managing General

  
	
   

  	
   

  	
   

  	
   

  	
  Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By

  	
  /s/ Gary Kravetz

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
							



 


S-16

















 


	
   

  	
  ARCHSTONE COLUMBIA CROSSING 

  
	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  
	
   

  	
  COLUMBIA CROSSING, L.L.C., a Delaware 

  
	
   

  	
  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Pool 5

  
	
   

  	
   

  
	
   

  	
  ARCHSTONE GLENDALE BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  
	
   

  	
  GLENDALE, L.L.C., a Delaware limited
  liability

  
	
   

  	
  company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ARCHSTONE PASADENA BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN PASADENA LLC, a Delaware limited 

  
	
   

  	
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
					



 


S-17
















 


	
   

  	
  ARCHSTONE THOUSAND OAKS PLAZA

  
	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN THOUSAND OAKS PLAZA LLC, a 

  
	
   

  	
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ARCHSTONE WALNUT CREEK BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH 

  
	
   

  	
  WALNUT CREEK, L.L.C., a Delaware limited 

  
	
   

  	
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ARCHSTONE WILLOW GLEN BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  WILLOW GLEN, L.L.C., a Delaware limited

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ARCHSTONE HARBORSIDE BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  HARBORSIDE, L.L.C., a Delaware limited

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-18

















 


	
   

  	
  Pool 6

  	 

	
   

  	
   

  	 

	
   

  	
  ARCHSTONE EMERY BAY BORROWER:

  	 

	
   

  	
   

  	 

	
   

  	
  ASN EMERYVILLE LLC, a Delaware limited

  liability company

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
  OAKWOOD ARLINGTON BORROWER:

  	 

	
   

  	
   

  	 

	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  OAKWOOD ARLINGTON, L.L.C., a Delaware

  limited liability company

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
  OAKWOOD BELLEVUE BORROWER:

  	 

	
   

  	
   

  	 

	
   

  	
  ASN BELLEVUE LLC, a Delaware limited

  liability company

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
  OAKWOOD BOSTON  BORROWER:

  	 

	
   

  	
   

  	 

	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  OAKWOOD BOSTON, L.L.C., a Delaware

  limited liability company

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
					



 


S-19

















 


	
   

  	
  OAKWOOD CHICAGO BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
  ASN CHICAGO LLC, a Delaware limited
  liability

  company

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  OAKWOOD LONG BEACH MARINA

  BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
  ASN LONG BEACH LLC, a Delaware limited

  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  OAKWOOD MARINA DEL REY BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
  ASN MARINA LLC, a Delaware limited liability

  company

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  OAKWOOD MOUNTAIN VIEW BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
  ASN MOUNTAIN VIEW LLC, a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
					



 


S-20

















 


	
   

  	
  OAKWOOD PHILADELPHIA BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  OAKWOOD PHILADELPHIA, L.L.C., a

  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OAKWOOD SAN FRANCISCO BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  OAKWOOD SAN FRANCISCO, L.L.C., a

  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OAKWOOD SAN JOSE SOUTH BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN SAN JOSE LLC, a Delaware limited
  liability

  company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OAKWOOD SEATTLE BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN SEATTLE LLC, a Delaware limited
  liability

  company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-21

















 


	
   

  	
  OAKWOOD TOLUCA HILLS BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  OAKWOOD TOLUCA HILLS, L.L.C., a

  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OAKWOOD WOODLAND HILLS BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN WOODLAND HILLS EAST LLC, a

  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ARCHSTONE FAIRCHASE BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN FAIRCHASE LLC, a Delaware limited

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  FAIRCHASE II, L.L.C., a Delaware limited

  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-22

















 


	
   

  	
  PACIFIC STRANDS (ARCHSTONE VENTURA)

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN VENTURA LLC, a Delaware limited
  liability

  company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASN VENTURA TWO LLC, a Delaware limited

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASN VENTURA FOUR LLC, a Delaware limited

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
  Pool 7

  
	
   

  	
   

  
	
   

  	
  ARCHSTONE 2000 COMMONWEALTH

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  SMITH PROPERTY HOLDINGS 2000

  COMMONWEALTH L.L.C., a Delaware limited

  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-23

















 


	
   

  	
  LONG BEACH HARBOR (BELLAMAR) 

  
	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN LONG BEACH HARBOR LLC, a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ARCHSTONE MONUMENT PARK

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN MONUMENT PARK LLC, a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ARCHSTONE QUINCY BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN QUINCY LLC, a Delaware limited liability
  

  company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ARCHSTONE WALNUT CREEK STATION

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN WALNUT CREEK STATION LLC, a

  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-24

















 


	
   

  	
  COLONY APARTMENTS (AT WESTON

  VILLAGE) BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN VENTURA COLONY LLC, a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CRYSTAL PLAZA BORROWER:

  
	
   

  	
   

  
	
   

  	
  SMITH PROPERTY HOLDINGS CRYSTAL

  PLAZA L.L.C., a Delaware limited liability

  company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LINCOLN TOWER BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  LINCOLN TOWERS, L.L.C., a Delaware limited

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BUCHANAN BORROWER:

  
	
   

  	
   

  
	
   

  	
  SMITH PROPERTY HOLDINGS BUCHANAN

  HOUSE L.L.C., a Delaware limited liability

  company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-25

















 


	
   

  	
  CHARTER OAK BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  CHARTER OAK, L.L.C., a Delaware limited

  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ARCHSTONE FREMONT CENTER

  BORROWER:

  
	
   

  	
   

  
	
   

  	
  ASN FREMONT LLC, a Delaware limited

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GATEWAY PLACE BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  GATEWAY PLACE, L.L.C., a Delaware limited

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CRYSTAL PLACE BORROWER:

  
	
   

  	
   

  
	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  CRYSTAL PLACE, L.L.C., a Delaware limited

  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-26

















 


	
   

  	
   

  	
  THE CONSULATE BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SMITH PROPERTY HOLDINGS

  CONSULATE, L.L.C., a Delaware limited liability

  company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Archstone-Smith Operating Trust, a

  
	
   

  	
   

  	
   

  	
  Maryland real estate investment trust,

  
	
   

  	
   

  	
   

  	
  Managing Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By

  	
  /s/ Gary Kravetz

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE STATESMAN BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CORCORAN HOUSE BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SMITH PROPERTY HOLDINGS ONE (D.C.)

  L.P., a Delaware limited partnership

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Archstone-Smith Operating Trust, a

  
	
   

  	
   

  	
   

  	
  Maryland real estate investment trust,

  
	
   

  	
   

  	
   

  	
  Managing General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By

  	
  /s/ Gary Kravetz

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
								



 


S-27

















 


	
   

  	
   

  	
  GALLERY AT VIRGINIA SQUARE

  BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  GALLERY AT VIRGINIA SQUARE I, L.L.C., a

  Delaware limited liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  GALLERY AT VIRGINIA SQUARE II, L.L.C.,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  GALLERY AT VIRGINIA SQUARE III,

  L.L.C., a Delaware limited liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Pool 8

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  APARTMENTS AT SUNSET BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  SUNSET, L.L.C., a Delaware limited liability

  company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
							



 


S-28

















 


	
   

  	
   

  	
  ARCHSTONE CEDAR RIVER BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  CEDAR RIVER, L.L.C., a Delaware limited

  liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARCHSTONE DULLES BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ASN DULLES LLC, a Delaware limited liability

  company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARCHSTONE SIERRA DEL ORO BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  SIERRA DEL ORO, L.L.C., a Delaware limited

  liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE MEADOWS AT RUSSETT BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  MEADOWS AT RUSSETT I, L.L.C., a Delaware

  limited liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-29

















 


	
   

  	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  MEADOWS AT RUSSETT (Borrower)  a

  Delaware limited liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Pool 9

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  POINSETTIA RIDGE BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ASN ENCINITAS LLC, a Delaware limited

  liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARCHSTONE MURRAY HILL BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ASN MURRAY HILL LLC, a Delaware limited

  liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CRYSTAL SQUARE BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  CRYSTAL SQUARE, L.L.C., a Delaware limited

  liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-30

















 


	
   

  	
   

  	
  THE ALBEMARLE BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SMITH PROPERTY HOLDINGS FIVE (D.C.)

  L.P., a Delaware limited partnership

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Archstone-Smith Operating Trust, a

  
	
   

  	
   

  	
   

  	
  Maryland real estate investment trust,

  
	
   

  	
   

  	
   

  	
  Managing General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TUNLAW GARDENS BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  VAN NESS SOUTH BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TUNLAW PARK BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SMITH PROPERTY HOLDINGS VAN NESS

  L.P., a Delaware limited partnership

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Archstone-Smith Operating Trust, a

  
	
   

  	
   

  	
   

  	
  Maryland real estate investment trust,

  
	
   

  	
   

  	
   

  	
  Managing General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  KEY WEST BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ASN KEY WEST LLC, a Delaware limited

  liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
									



 


S-31

















 


	
   

  	
   

  	
  THE WESTMONT BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ASN WESTMONT LLC, a Delaware limited

  liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARCHSTONE NEWPORT VILLAGE

  BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  NEWPORT VILLAGE I & II, L.L.C., a

  Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  NEWPORT VILLAGE III, L.L.C., a Delaware

  limited liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CRYSTAL TOWER AND LOFTS 590

  BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  CRYSTAL TOWERS & LOFTS 590, L.L.C., a

  Delaware limited liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-32

















 


	
   

  	
   

  	
  CRYSTAL HOUSES BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SMITH PROPERTY HOLDINGS CRYSTAL

  HOUSES L.L.C., a Delaware limited liability

  company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE BENNINGTON BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TISHMAN SPEYER ARCHSTONE-SMITH

  BENNINGTON, L.L.C., a Delaware limited

  liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Kravetz

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


S-33

















 


	
   

  	
   

  	
  IDOT
  GUARANTOR:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ASN
  SUNSET, L.L.C. a Delaware limited liability

  company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Bradley Turk

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Bradley Turk

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ASN
  MEADOWS AT RUSSET I, L.L.C. a

  Delaware limited liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Bradley Turk

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Bradley Turk

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ASN
  MEADOWS AT RUSSET II, L.L.C. a

  Delaware limited liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Bradley Turk

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Bradley Turk

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  



 


S-34
















 


Schedule I


 


BORROWERS


 


ASN Bear Hill
LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Cupertino, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Emerald Park, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Hacienda, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Mountain View, L.L.C., a Delaware limited liability company


 


ASN Quarry
Hills LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Redwood Shores, L.L.C., a Delaware limited liability company


 


ASN Watertown
LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Playa del Rey, L.L.C., a Delaware limited liability company


 


ASN La Jolla
Colony LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Old Town Pasadena, L.L.C., a Delaware limited liability company


 


ASN Walnut
Ridge LLC, a Delaware limited liability company


 


ASN Los Feliz
LLC, a Delaware limited liability company


 


ASN San Mateo
LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith South Market, L.L.C., a Delaware limited liability company


 


ASN Kendall
Square LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Camargue I, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Camargue II, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Camargue III, L.L.C., a Delaware limited liability company


 


ASN Redmond
Lakeview LLC, a Delaware limited liability company


 


Smith Property
Holdings Wilson L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Del Mar Station, L.L.C., a Delaware limited liability company


 


ASN Santa
Monica LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Santa Monica on Main, L.L.C., a Delaware limited liability
company


 


Tishman Speyer
Archstone-Smith Westside, L.L.C., a Delaware limited liability company


 


Smith Property
Holdings Ballston Place L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Gallery at Rosslyn, L.L.C., a Delaware limited liability
company


 


S-35

















 


Smith Property
Holdings Parc Vista L.L.C., a Delaware limited liability company


 


Smith Property
Holdings Water Park Towers L.L.C., a Delaware limited liability company


 


ASN Santa
Clara LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Oak Creek-I, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Oak Creek-II, L.L.C., a Delaware limited liability company


 


ASN Hoboken I
LLC, a Delaware limited liability company


 


ASN Hoboken II
LLC, a Delaware limited liability company


 


ASN Studio
City LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Studio City III-A, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Studio City III-B, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Studio City III-C, L.L.C., a Delaware limited liability company


 


Smith Property
Holdings Six (D.C.) L.P., a Delaware limited partnership


 


Smith Property
Holdings 4411 Connecticut L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Marina del Rey-I, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Marina del Rey-II, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Simi Valley, L.L.C., a Delaware limited liability company


 


Smith Property
Holdings Three (D.C.) L.P., a Delaware limited partnership


 


Smith Property
Holdings Alban Towers, L.L.C., a Delaware limited liability company


 


Alban Towers,
L.L.C., a District of Columbia limited liability company


 


Tishman Speyer
Archstone-Smith Cronin’s Landing, L.L.C., a Delaware limited liability company


 


ASN
CambridgePark LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Columbia Crossing, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Tysons Corner, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Arlington Courthouse Plaza, L.L.C., a Delaware limited
liability company


 


Courthouse
Hill LLC, a Delaware limited liability company


 


Smith Property
Holdings Reston Landing L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Walnut Creek, L.L.C., a Delaware limited liability company


 


S-36

















 


Tishman Speyer
Archstone-Smith Harborside, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Willow Glen, L.L.C., a Delaware limited liability company


 


ASN Pasadena
LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Glendale, L.L.C., a Delaware limited liability company


 


ASN Thousand
Oaks Plaza LLC, a Delaware limited liability company


 


ASN San Jose
LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Oakwood San Francisco, L.L.C., a Delaware limited liability
company


 


ASN Long Beach
LLC, a Delaware limited liability company


 


ASN Marina
LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Oakwood Toluca Hills, L.L.C.


 


ASN Woodland
Hills East LLC, a Delaware limited liability company


 


ASN Mountain
View LLC, a Delaware limited liability company


 


ASN Emeryville
LLC, a Delaware limited liability company


 


ASN Ventura
LLC, a Delaware limited liability company


 


ASN Ventura
Two LLC, a Delaware limited liability company


 


ASN Ventura
Four LLC, a Delaware limited liability company


 


ASN Chicago
LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Oakwood Boston, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Oakwood Philadelphia, L.L.C., a Delaware limited liability
company


 


Tishman Speyer
Archstone-Smith Oakwood Arlington, L.L.C., a Delaware limited liability company


 


ASN Fairchase
LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Fairchase II, L.L.C., a Delaware limited liability company


 


ASN Bellevue
LLC, a Delaware limited liability company


 


ASN Seattle
LLC, a Delaware limited liability company


 


ASN Walnut
Creek Station LLC, a Delaware limited liability company


 


ASN Fremont
LLC, a Delaware limited liability company


 


ASN Ventura
Colony LLC, a Delaware limited liability company


 


ASN Long Beach
Harbor 1031 LLC, a Delaware limited liability company


 


Smith Property
Holdings One (D.C.) L.P., a Delaware limited partnership


 


Smith Property
Holdings Consulate L.L.C., a Delaware limited liability company


 


S-37

















 


ASN Quincy
LLC, a Delaware limited liability company


 


Smith Property
Holdings 2000 Commonwealth L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Crystal Place, L.L.C., a Delaware limited liability company


 


Smith Property
Holdings Crystal Plaza L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Gateway Place, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Charter Oak, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Lincoln Towers, L.L.C., a Delaware limited liability company


 


Smith Property
Holdings Buchanan House L.L.C., a Delaware limited liability company


 


ASN Monument
Park LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Gallery at Virginia Square I, L.L.C., a Delaware limited
liability company


 


Tishman Speyer
Archstone-Smith Gallery at Virginia Square II, L.L.C., a Delaware limited
liability company


 


Tishman Speyer
Archstone-Smith Gallery at Virginia Square III, L.L.C., a Delaware limited
liability company


 


Tishman Speyer
Archstone-Smith Sierra del Oro, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Sunset, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Meadows at Russett (Borrower) I, L.L.C., a Delaware limited
liability company


 


Tishman Speyer
Archstone-Smith Meadows at Russett (Borrower) II, L.L.C., a Delaware limited
liability company


 


ASN Dulles
LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Cedar River, L.L.C., a Delaware limited liability company


 


ASN Encinitas
LLC, a Delaware limited liability company


 


Smith Property
Holdings Five (D.C.) L.P., a Delaware limited partnership


 


Smith Property
Holdings Van Ness L.P., a Delaware limited partnership


 


ASN Westmont
LLC, a Delaware limited liability company


 


ASN Murray
Hill LLC, a Delaware limited liability company


 


ASN Key West
LLC, a Delaware limited liability company


 


Smith Property
Holdings Crystal Houses LLC, a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Crystal Square, L.L.C., a Delaware limited liability company


 


Tishman Speyer
Archstone-Smith Crystal Towers & Lofts 590, L.L.C., a Delaware limited
liability company


 


Tishman Speyer
Archstone-Smith Newport Village I & II, L.L.C., a Delaware limited
liability company


 


S-38

















 


Tishman Speyer
Archstone-Smith Newport Village III, L.L.C., a Delaware limited liability
company


 


Tishman Speyer
Archstone-Smith Bennington, L.L.C., a Delaware limited liability company


 


S-39

















 


Schedule II


 


IDOT GUARANTORS


 


ASN Sunset LLC


 


ASN Meadows at
Russett I LLC


 


ASN Meadows at Russett II LLC


 


S-40

















 


	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

  	
  LEMAN
  BROTHERS HOLDINGS INC., a

  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Catherine Harnett

  	
   

  
	
   

  	
  Name:

  	
  Catherine Harnett

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signature

  	
   

  



 


S-41

















 


	
   

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

  association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James L. Levin

  	
   

  
	
   

  	
  Name:

  	
   

  	
  James L. Levin

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Principal

  	
   

  



 


S-42

















 


	
   

  	
  BARCLAYS
  CAPITAL REAL ESTATE INC., a 

  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ LoriAnn Rung

  	
   

  
	
   

  	
  Name:

  	
  LoriAnn Rung

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  



 


S-43






 












 


APPENDIX I


DEFINITIONS


 


For all
purposes of the Agreement, the following terms shall have the respective meanings
set forth below:


 


“Additional
Borrower” means the owner of a Substitute Mortgaged Property, which entity
has been approved by Lender and becomes a Borrower under the Agreement and the
applicable Loan Documents.


 


“Additional
Due Diligence Fees” means the due diligence fees paid by the applicable
Collateral Pool Borrower to Lender with respect to each Substitute Mortgaged
Property, as set forth in Section 8.03(a).


 


“Additional
Fixed Loan” means a Fixed Loan made pursuant to Section 2.05.


 


“Additional
Guarantor” shall mean any entity that enters into a confirmation and
joinder agreement as provided in the Guaranty and, with regard to any
concurrent transfer, such transfer shall not cause a reduction of the direct or
indirect interests in the Guarantor held by Lehman Entities and/or Tishman
Control Persons below 9.7% in the aggregate.


 


“Additional
IDOT Guarantor” means the owner of a Substitute Mortgaged Property, which
entity has been approved by Lender and becomes an IDOT Guarantor under the
Agreement and the applicable Loan Documents.


 


“Adjustable
Rate” has the meaning set forth in each Variable Loan Note evidencing a
Variable Loan (which rate includes the Variable Loan Fee).


 


“Affiliate”
or “Affiliated” means, when used with reference to a specified Person,
(a) any Person that, directly or indirectly, through one or more
intermediaries, controls or is controlled by, or is under common control with,
the specified Person, (b) any Person that is an officer of, partner in or
trustee of, or serves in a similar capacity with respect to, the specified
Person or of which the specified Person is an officer, partner or trustee, or
with respect to which the specified Person serves in a similar capacity, (c)
any Person that, directly or indirectly, is the beneficial owner of ten percent
(10%) or more of any class of equity securities of, or otherwise has a
substantial beneficial interest in, the specified Person or of which the
specified Person is, directly or indirectly, the owner of ten percent (10%) or
more of any class of equity securities or in which the specified Person has a
substantial beneficial interest, and (d) for the specified Person, any of the
individual’s spouse, issue, parents, siblings and a trust for the benefit of
the individual’s spouse or issue, or both. For the purposes of this definition,
“control” (including with correlative meanings, the terms “controlling,” “controlled
by” and “under common control with”), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management (other than property management) and policies of
that Person, whether through the ownership of voting securities, ownership
interests or by contract or otherwise.


 


“Aggregate
Debt Service Coverage Ratio” means, with respect to any Collateral Pool for
any specified date, the ratio (expressed as a percentage) of—


 


1

















 


(a)           the aggregate of the
Net Operating Income for the Mortgaged Properties in such Collateral Pool


 


to


 


(b)           the
Debt Service for such Collateral Pool on the specified date.


 


“Aggregate
Loan to Value Ratio” means, with respect to any Collateral Pool for any
specified date, the ratio (expressed as a percentage) of—


 


(a)           the
Loans Outstanding secured by the Mortgaged Properties in such Collateral Pool
on the specified date,


 


to


 


(b)           the
aggregate of the Valuations most recently obtained prior to the specified date
for all of the Mortgaged Properties in such Collateral Pool.


 


“Agreement”
means the Master Credit Facility Agreement, as it may be amended, supplemented
or otherwise modified from time to time, including all Recitals and Exhibits to
the Agreement, each of which is hereby incorporated into the Agreement by this
reference.


 


“Allocable
Loan Amount” means the portion of the Loans secured by a Collateral Pool
allocated to a particular Mortgaged Property by Lender in accordance with the
Agreement.


 


“Alterations”
shall have the meaning set forth in Section 6.09.


 


“Amortization
Period” means the period of thirty (30) years.


 


“Applicable
Law” means (a) all applicable provisions of all constitutions, statutes,
rules, regulations and orders of all governmental bodies, all Governmental
Approvals and all orders, judgments and decrees of all courts and arbitrators,
(b) all zoning, building, environmental and other laws, ordinances, rules,
regulations and restrictions of any Governmental Authority affecting the
ownership, management, use, operation, maintenance or repair of any Mortgaged
Property, including the Americans with Disabilities Act (if applicable), the
Fair Housing Amendment Act of 1988 and Hazardous Materials Laws (as defined in
the Security Instrument), (c) any building permits or any conditions,
easements, rights-of-way, covenants, restrictions of record or any recorded or
unrecorded agreement affecting or concerning any Mortgaged Property including
planned development permits, condominium declarations, and reciprocal easement
and regulatory agreements with any Governmental Authority, (d) all laws,
ordinances, rules and regulations, whether in the form of rent control, rent
stabilization or otherwise, that limit or impose conditions on the amount of
rent that may be collected from the units of any Mortgaged Property, and (e)
requirements of the Borrower’s or IDOT Guarantor’s insurance companies or
similar organizations, affecting the operation or use of any Mortgaged Property
or the consummation of the transactions to be effected by the Agreement or any
of the other Loan Documents.


 


2

















 


“Appraisal”
means an appraisal of Multifamily Residential Property conforming to the
requirements of the Financial Institutions Reform, Recovery and Enforcement Act
of 1989, as amended.


 


“ASOT”
means Archstone-Smith Operating Trust, a Maryland real estate investment trust.


 


“Appraised
Value” means the value set forth in an Appraisal.


 


“Bank Debt”
shall mean those credit facilities described in that certain Credit Agreement,
dated as of October 5, 2007 among River Trust Acquisition (MD), LLC, a Maryland
limited liability company (to be merged with and into Archstone Smith Operating
Trust), Tishman Speyer Archstone-Smith Multifamily Guarantor, L.P., a Delaware
limited partnership, Tishman Speyer Archstone-Smith Multifamily Parallel
Guarantor, L.L.C., a Delaware limited liability company, Tishman Speyer
Archstone-Smith Multifamily Principal, L.P., a Delaware limited partnership,
Tishman Speyer Archstone-Smith Multifamily Nominee (GP), L.L.C., a Delaware
limited liability company, Tishman Speyer Archstone-Smith Multifamily Nominee,
L.P., a Delaware limited partnership, Tishman Speyer Archstone-Smith
Multifamily Series I, Inc., a Maryland corporation, Tishman Speyer
Archstone-Smith Multifamily Series II, L.L.C., a Delaware limited liability
company, Tishman Speyer Archstone-Smith Multifamily Series III, L.L.C., a
Delaware limited liability company, Tishman Speyer Archstonesmith Multifamily
Series IV, L.L.C., a Delaware limited liability company, the several banks and
other financial institutions or entities from time to time parties to the
Credit Agreement in the aggregate maximum principal amount of $5,430,000,000.


 


“Bankruptcy
Code” means Title 11 of the United States Code entitled “Bankruptcy” as now
and hereafter in effect, or any successor statute.


 


“Borrower”
shall have the meaning given to such term in the preamble to this Agreement.


 


“Borrower
Agent” shall have the meaning set forth in Section 12.03(a).


 


“Borrower
Parties” means, with respect to any Collateral Pool, the applicable
Collateral Pool Borrower, the applicable IDOT Guarantor, each Guarantor, and
the general partner or managing member of each applicable Collateral Pool
Borrower and each Guarantor.


 


“Borrower
Party” shall mean any of the Borrower Parties, individually.


 


“Business
Day” means a day on which Fannie Mae is open for business.


 


“Calendar
Quarter” means, with respect to any year, any of the following three month
periods: (a) January-February-March; (b) April-May-June; (c)
July-August-September; and (d) October-November-December.


 


“Calendar
Year” means the 12-month period from the first day of January to and
including the last day of December, and each 12-month period thereafter.


 


3

















 


“Cap Rate”
means, for each Mortgaged Property, subject to Section 2.04(c) of the
Agreement, a capitalization rate reasonably selected by Lender for use in
determining the Valuations, as disclosed to Borrower from time to time.


 


“Cash
Collateral Account” means the cash collateral account established pursuant
to the Cash Collateral Agreement.


 


“Cash
Collateral Agreement” means a cash collateral, security and custody
agreement by and among Fannie Mae, Borrower and a collateral agent for Fannie
Mae.


 


“Cash
Equivalents” means


 


(a)           securities issued or
fully guaranteed or insured by the United States Government or any agency
thereof and backed by the full faith and credit of the United States having
maturities of not more than twelve (12) months from the date of acquisition.


 


(b)           certificates
of deposit, time deposits, demand deposits, Eurodollar time deposits,
repurchase agreements, reverse repurchase agreements, or bankers’ acceptances,
having in each case a term of not more than twelve (12) months, issued by any
commercial bank having membership in the FDIC, or by any U.S. commercial lender
(or any branch or agency of a non-U.S. bank licensed to conduct business in the
U.S.) having combined capital and surplus of not less than $100,000,000 whose
short-term securities are rated at least A-1 by S&P or P-1 by Moody’s
Investors Service, Inc.; and


 


(c)           commercial
paper of an issuer rated at least A-1 by S&P or P-1 by Moody’s Investors
Service, Inc. and in either case having a term of not more than twelve (12)
months.


 


“Cash
Interest Rate” means, on the date of determination, a rate of interest, per
annum, established by Fannie Mae for loans purchased for cash by Fannie Mae of
similar characteristics then offered by Fannie Mae.


 


“Change of
Control” means the Transfer of a Controlling Interest.


 


“Closing
Date” means the Initial Closing Date and each date after the Initial
Closing Date on which the funding or other transaction requested in a Request is
required to take place.


 


“Collateral”
means the Mortgaged Properties and other collateral from time to time or at any
time encumbered by the Security Instruments, or any other property securing
Borrower’s obligations under the Loan Documents.


 


“Collateral
Event” means a Request for an Extension, Release, Substitution or
Additional Fixed Loan, an Event of Default or other event which may invalidate
the outstanding Allocable Loan Amounts or other Collateral Pool determinations.


 


4

















 


“Collateral
Pool” means individually and collectively, all of the Collateral for a
particular Collateral Pool described in Recital B of the Agreement
and identified on Exhibit A of the Agreement.


 


“Collateral
Pool Borrower” means individually and collectively, each Borrower that owns
Collateral that is a part of such Collateral Pool (each of which may be
referred to a “Collateral Pool (APPLICABLE POOL NUMBER) Borrower,” i.e., each Borrower that owns collateral that is part of
Collateral Pool 1 may be referred to as a Collateral Pool 1 Borrower).


 


“Compliance
Certificate” means a certificate of Borrower substantially in the form of Exhibit
F to the Agreement.


 


“Confirmation
of Guaranty” means a confirmation of the Guaranty executed by Guarantor in
connection with any Request after the Initial Closing, substantially in the
form of Exhibit E to the Agreement.


 


“Consent
Decree” means that certain Consent Decree entered into and ordered by
United States District Judge Andrew M. Davis on June 8, 2005 in connection with
the ADA Litigation (as defined in Section 6.19).


 


“Contribution
Agreement” means a Contribution Agreement by and among Borrower and any
Additional Borrowers, as the same may be amended, modified or supplemented from
time to time.


 


“Controlling
Interest” shall mean, with respect to any entity, the following:


 


(i)            if such entity is a
limited partnership, a Transfer of any general partnership interest that
results in (x) one or more Lehman Entities and/or Tishman Speyer Control Persons
not having control (as defined in the definition of Affiliate) of such entity
or (y) the Guarantors not being owned, directly or indirectly, at least 9.7% by
one or more Lehman Entities and/or Tishman Speyer Control Persons, in the
aggregate;


 


(ii)           if such entity is a
limited liability company or a limited liability partnership, a Transfer of any
managing member interest (or equivalent) that results in (x) one or more Lehman
Entities and/or Tishman Speyer Control Persons not having control (as defined in
the definition of Affiliate) of such entity or (y) the Guarantors not being
owned, directly or indirectly, at least 9.7% by one or more Lehman Entities
and/or Tishman Speyer Control Persons in the aggregate;


 


(iii)          if such entity is a
trust, the removal, appointment or substitution of a trustee of such trust
other than (A) in the case of a land trust, or (B) if the trustee of such trust
after such removal, appointment or substitution is a trustee selected by one or
more Lehman Entities and/or Tishman Control Person and such trustee is subject
to removal at the sole discretion of one or more Lehman Entities and/or Tishman
Control Persons; or


 


(iv)          a Transfer of any or all
of the interest of any entity (other than to an entity directly or indirectly
controlled by one or more Lehman Entities and/or Tishman Speyer Control
Persons) that (A) has the ability to cause a change in Senior Management, or
(B) has the


 


5

















 


ability to
cause the sale of all or a significant portion of the Borrower, IDOT Guarantor
or any of the Guarantors, or (C) has the ability to cause a material change in
any lines of business to be entered into or continued by any Borrower, IDOT
Guarantor or any Guarantor.


 


“Coverage
and LTV Tests” mean, for any Collateral Pool for any specified date, each
of the following financial tests:


 


(1)           For any Collateral Pool
that secures a Variable Loan, (a) the Aggregate Debt Service Coverage Ratio is
not less than, during the first two Loan Years, 1.0:1.0, and thereafter,
..95:1.0; and (b) the Aggregate Loan to Value Ratio does not exceed 65%.


 


(2)           For any Collateral Pool
that secures a Fixed Loan, (a) the Aggregate Debt Service Coverage Ratio is not
less than, during the first three Loan Years, .95:1.0; during the fourth and
fifth Loan Years, 1:0:1.0; during the sixth and seventh Loan Years, 1.05:1.0,
and during the eighth through tenth Loan Years, 1:10:1.0; and (b) the Aggregate
Loan to Value Ratio does not exceed 65%.


 


“Credit
Facility” means the agreement by Lender to make Variable Loans and Fixed
Loans pursuant to the terms of the Agreement.


 


“Debt
Service Amounts” shall have the meaning set forth in Section 12.01(b).


 


“Debt
Service” means, for any Collateral Pool, —


 


(a)           For
use in determining the additional borrowing capacity for Additional Fixed Loans
to be created pursuant to Section 2.05, the sum of the amount of
interest and principal amortization, during the twelve (12) month period
immediately succeeding the specified date, with respect to the Loans Outstanding
on the specified date and Additional Fixed Loans to be obtained from the
additional borrowing capacity pursuant to Section 2.05, except that, for
these purposes:


 


(i)            each
Fixed Loan Outstanding shall require level monthly payments of principal and interest
(at the interest rate for the Fixed Loan set forth in the applicable Fixed Loan
Note) in an amount necessary to fully amortize the original principal amount of
the Fixed Loan over the Amortization Period, with such amortization to commence
on the first day of the twelve (12) month period; and


 


(ii)           each
Fixed Loan to be obtained shall be deemed to require level monthly payments of
principal and interest (at an interest rate equal to (A) the base United States
Treasury Index Rate for securities having a maturity substantially similar to
the maturity of the Fixed Loan plus (B) the anticipated Fannie Mae spread (as
determined by Lender) for Loans having similar characteristics as the Fixed
Loans to be made under this Agreement plus (C) the Fixed Loan Fee) in an amount
necessary to fully amortize the original principal amount of the Fixed Loan
over the Amortization Period, with such amortization to commence on the first
day of the twelve (12) month period.


 


6

















 


(b)           For
use in determining the Aggregate Debt Service Coverage Ratio, for purposes of
determining compliance with the Coverage and LTV Tests, for use in determining
the Release Price pursuant to Section 3.02(c) of the Agreement (except
for Releases of Mortgaged Properties securing Variable Loans during the first
two Loan Years, in which case, clause (d) of the definition of Debt Service
shall apply), for use in determining compliance with the Substitution
provisions in Section 3.03 (except for Releases of Mortgaged Properties
securing Variable Loans during the first two Loan Years, in which case, clause
(d) of the definition of Debt Service shall apply), for use in determining
whether the requirements of Section 1.05(c) have been satisfied, and for
other ongoing monitoring purposes pursuant to Section 2.04(b) of the
Agreement, as of any specified date, the sum of the amount of interest and
principal amortization, during the twelve (12) month period immediately
succeeding the specified date, with respect to the Loans Outstanding on the
specified date, except that, for these purposes:


 


(i)            each
Variable Loan shall be deemed to require level monthly payments of principal
and interest (at an interest rate equal to the Strike Rate (as defined in the
relevant Interest Rate Hedge and Hedge Security Agreement) in the applicable
Variable Loan Note for such Variable Loan) in an amount necessary to fully
amortize the original principal amount of the Variable Loan over the
Amortization Period, with such amortization deemed to commence on the first day
of the twelve (12) month period; and


 


(ii)           each
Fixed Loan shall require level monthly payments of principal and interest (at
the interest rate set forth in the applicable Fixed Loan Note for such Fixed
Loan) in an amount necessary to fully amortize the original principal amount of
the Fixed Loan over the Amortization Period, with such amortization to commence
on the first day of the twelve (12) month period.


 


(c)           For
use in determining the Aggregate Debt Service Coverage Ratio for purposes of
determining compliance with the Interest Rate Hedge and Hedge Security
Agreement, as of any specified date, the sum of the amount of interest and
principal amortization that would be payable during the twelve (12) month
period immediately succeeding the specified date, with respect to the amount of
the Variable Loan Outstanding, except that, for these purposes, the Variable
Loan shall be deemed to require level monthly payments of principal and
interest at an interest rate equal to the Adjustable Rate.


 


(d)           For
use in determining the Aggregate Debt Service Coverage Ratio with respect to
Collateral Pools securing Variable Loans during the first two Loan Years, the
sum of interest that would be payable during the twelve (12) month period immediately
succeeding the initial Closing Date with respect to the full amount of the
initial Loans, except that for these purposes, the initial Variable Loan shall
be deemed to require level monthly payments of interest at an interest rate
equal to the Strike Rate (as defined in the relevant Interest Rate Hedge and
Hedge Security Agreement).


 


“Debt
Service Coverage Ratio” means, for any Mortgaged Property, for any
specified date, the ratio (expressed as a percentage) of —


 


7

















 


(a)           the
Net Operating Income utilizing expenses on a trailing twelve (12) month basis
and income on a current basis, with such adjustments as Lender may make for
similar loans anticipated to be sold to Fannie Mae for the subject Mortgaged
Property


 


to


 


(b)           the
Debt Service on the specified date, assuming, for the purpose of calculating
the Debt Service for this definition, that Loans Outstanding shall be the
Allocable Loan Amount for the subject Mortgaged Property.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and the regulations promulgated thereunder.


 


“Event of
Default” means any event defined to be an “Event of Default” under Article
9.


 


“Exculpated
Parties” shall have the meaning set forth in Section 12.01(a).


 


“Extension”
shall have the meaning set forth in Section 1.05.


 


“Facility
Termination Date” means, at any time during which Loans are Outstanding,
the latest maturity date for any Loan Outstanding.


 


“Fannie Mae”
means the federally-chartered and stockholder-owned corporation organized and
existing under the Federal National Mortgage Association Charter Act, 12 U.S.C.
§ 1716 et  seq.


 


“Fannie Mae
Commitment” shall have the meaning set forth in Section 2.01(b)(iii).


 


“Fees”
means Additional Due Diligence Fee, Origination Fee, Fixed Loan Fee, Initial
Due Diligence Fee, Re-Underwriting Fee, Substitution Fee, Variable Loan Fee any
and all other fees specified in the Agreement.


 


“Fixed Loan
Fee” means for any Additional Fixed Loan made after the Initial Closing
Date, the number of basis points determined at the time of such closing by
Lender as the Fixed Loan Fee for such Additional Fixed Loans.


 


“Fixed Loan”
means a fixed-rate loan made by Lender to a Collateral Pool Borrower each of
which shall be evidenced by a Fixed Loan Note in the form attached as Exhibit
B to the Agreement.


 


“Fixed Loan
Note” means a promissory note, in the form attached as Exhibit B to
the Agreement, which will be issued by the applicable Collateral Pool Borrower
to Lender, concurrently with the funding of each Fixed Loan together with any
Additional Fixed Loans made pursuant to Section 2.05 of the Agreement,
to evidence such Collateral Pool Borrower’s obligation to repay the Fixed Loan.


 


“Fraudulent
Transfer Laws” shall have the meaning set forth in Section 12.11.


 


8

















 


“GAAP”
means generally accepted accounting principles in the United States in effect
from time to time, consistently applied.


 


“General
Conditions” shall have the meaning set forth in Article 4.


 


“Governmental
Approval” means an authorization, permit, consent, approval, license,
registration or exemption from registration or filing with, or report to, any
Governmental Authority.


 


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


 


“Gross
Revenues” means, for any specified period, with respect to any Multifamily
Residential Property, all income in respect of such Multifamily Residential
Property as reflected on the certified operating statement for such specified
period as adjusted to exclude unusual income (e.g. temporary or nonrecurring
income), income not allowed by Lender for similar loans anticipated to be sold
to Fannie Mae (e.g. interest income, furniture income, etc.), and the value of
any unreflected concessions.


 


“Guarantor”
means, individually and collectively, ASOT, Tishman Speyer Archstone- Smith
Multifamily Guarantor, L.P., Tishman Speyer Archstone-Smith Multifamily
Parallel Guarantor, L.L.C., Tishman Speyer Archstone-Smith Multifamily Parallel
Guarantor I, L.L.C., Tishman Speyer Archstone-Smith Multifamily Parallel
Guarantor II, L.L.C. and any Additional Guarantor.


 


“Guaranty”
means individually and collectively, each Guaranty to be executed by Guarantor
in the form of Exhibit D to the Agreement.


 


“Hazardous
Materials,” with respect to any Mortgaged Property, shall have the meaning
given that term in the Security Instrument encumbering the Mortgaged Property.


 


“Hazardous
Materials Law,” with respect to any Mortgaged Property, shall have the
meaning given that term in the Security Instrument encumbering the Mortgaged
Property.


 


“Hazardous
Substance Activity” means, with respect to any Mortgaged Property, any
storage, holding, existence, release, spill, leaking, pumping, pouring,
injection, escaping, deposit, disposal, dispersal, leaching, migration, use,
treatment, emission, discharge, generation, processing, abatement, removal,
disposition, handling or transportation of any Hazardous Materials from, under,
into or on such Mortgaged Property in violation of Hazardous Materials Laws,
including the discharge of any Hazardous Materials emanating from such
Mortgaged Property in violation of Hazardous Materials Laws through the air,
soil, surface water, groundwater or property and also including the abandonment
or disposal of any barrels, containers and other receptacles containing any
Hazardous Materials from or on such Mortgaged Property in violation of
Hazardous Materials Laws, in each case whether sudden or nonsudden, accidental
or nonaccidental.


 


9

















 


“Hedge
Security Agreement” means, with respect to an Interest Rate Hedge, the
Interest Rate Hedge Security, Pledge and Assignment Agreement between the
Borrower and the Lender, for the benefit of Lender, in the form attached as EXHIBIT
O to this Agreement as such agreement may be amended, modified,
supplemented or restated from time to time.


 


“IDOT
Guarantor” shall have the meaning given to such term in the preamble to
this Agreement.


 


“Impositions”
and “Imposition Deposits” shall have the meaning set forth in the
Security Instrument.


 


“Indebtedness”
means, with respect to any Person, as of any specified date, without
duplication, all:


 


(a)           indebtedness of such
Person for borrowed money or for the deferred purchase price of property or
services (other than (i) current trade liabilities incurred in the ordinary
course of business and payable in accordance with customary practices, and (ii)
for construction of improvements to property, if such person has a
non-contingent contract to purchase such property, or (iii) amounts to be paid
by such Person, in performance stages or upon completion, pursuant to a written
contract for the making of capital improvements to a Mortgaged Property
permitted by this Agreement or the other Loan Documents);


 


(b)           other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument;


 


(c)           obligations of such
Person under any lease of property, real or personal, the obligations of the
lessee in respect of which are required by GAAP to be capitalized on a balance
sheet of the lessee or to be otherwise disclosed as such in a note to such
balance sheet;


 


(d)           obligations of such
Person in respect of acceptances (as defined in Article 3 of the Uniform
Commercial Code of the District of Columbia) issued or created for the account
of such Person;


 


(e)           liabilities secured by
any Lien on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment of such liabilities; and


 


(f)            as to any Person (“guaranteeing
person”), any obligation of (a) the guaranteeing person or (b) another
Person (including any bank under any letter of credit) to induce the creation
of a primary obligation (as defined below) with respect to which the
guaranteeing person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing, or in effect guaranteeing, any
indebtedness, lease, dividend or other obligation (“primary obligations”)
of any third person (“primary obligor”) in any manner, whether directly
or indirectly, including any obligation of the guaranteeing person, whether or
not contingent, to (1) purchase any such primary obligation or any property
constituting direct or indirect security therefor, (2) advance or supply funds
for the purchase or payment of any such primary obligation or to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (3) purchase
property,


 


10

















 


securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation, or (4) otherwise assure or hold harmless the owner of any
such primary obligation against loss in respect of the primary obligation,
provided, however, that the term “Contingent Obligation” shall not
include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Contingent Obligation of any guaranteeing
person shall be deemed to be the lesser of (i) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made and (ii) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Contingent Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Contingent Obligation shall
be such guaranteeing person’s maximum reasonably anticipated liability in
respect thereof as determined by Owner in good faith. Notwithstanding the
foregoing, nothing in this Subsection (f) shall preclude the obligations with
respect to any Borrower in connection with the Loans.


 


“Initial
Loans” means individually and collectively, the Loans made on the Initial
Closing Date in the aggregate amount of $7,069,325,900, as specifically set
forth on Exhibit A.


 


“Initial
Closing Date” means the date of the Agreement.


 


“Initial
Due Diligence Fees” shall have the meaning set forth in 0.


 


“Initial
Mortgaged Properties” means the Multifamily Residential Properties
described on Exhibit A to the Agreement and which are made part of a
Collateral Pool on the Initial Closing Date.


 


“Initial
Security Instruments” means the Security Instruments covering the Initial
Mortgaged Properties.


 


“Initial
Valuation” means, when used with reference to specified Collateral, the
Valuation initially performed for the Collateral as of the date on which the
Collateral was added to a Collateral Pool. The Initial Valuation for each of
the Initial Mortgaged Properties is as set forth in Exhibit A to the
Agreement.


 


“Insurance
Policy” means, with respect to a Mortgaged Property, the insurance coverage
and insurance certificates evidencing such insurance required to be maintained
pursuant to the Security Instrument encumbering the Mortgaged Property.


 


“Interest
Rate Hedge” shall have the meaning set forth in Section 1.06.


 


“Internal
Revenue Code” means the Internal Revenue Code of 1986, as amended. Each
reference to the Internal Revenue Code shall be deemed to include (a) any
successor internal revenue law and (b) the applicable regulations whether final
or temporary.


 


“Issuer”
shall have the meaning set forth in Section 4.08(a).


 


11

















 


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


 


“Lehman
Entities” shall mean, collectively, Lehman Brothers Holdings Inc. and any
Person that, directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with Lehman Brothers
Holdings Inc. For the purposes of this definition, “control” (including with
correlative meanings, the terms “controlling,” “controlled by” and “under
common control with”), as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
(other than property management) and policies of that Person, whether through
the ownership of voting securities, ownership interests or by contract or
otherwise.


 


“Lehman
Mezzanine Debt” shall mean debt incurred by the direct owner of Borrower
(the “Senior Mezzanine Borrower”) and by the direct owner of Senior
Mezzanine Borrower, in each case secured by a pledge of the ownership interest
in such entities, to be made by Lehman Brothers Holdings Inc., Bank of America,
N.A., and Barclays Capital Real Estate Finance Inc. in the maximum principal
amount of $46,719,952 with respect to Collateral Pool 1, $90,032,738 with
respect to Collateral Pool 2, $158,348,902 with respect to Collateral Pool 3,
$91,246,464 with respect to Collateral Pool 4, $28,182,968 with respect to
Collateral Pool 5, $0 with respect to Collateral Pool 6, $97,854,409 with
respect to Collateral Pool 7, $19,835,933 with respect to Collateral Pool 8,
and $236,637,785 with respect to Collateral Pool 9.


 


“Lender”
shall have the meaning set forth in the first paragraph of the Agreement, and
shall also refer to any replacement Lender.


 


“Letter of
Credit” means a letter of credit issued by an LOC Bank satisfactory to
Fannie Mae, naming Fannie Mae as beneficiary in form and substance as attached
hereto as Exhibit P or as otherwise reasonably and customarily
acceptable to Fannie Mae.


 


“Lien”
means any mortgage, deed of trust, deed to secure debt, security interest or
other lien or encumbrance (including both consensual and non-consensual liens
and encumbrances).


 


“Line of
Credit” shall mean that portion of the Bank Debt designated as the “Revolving
Credit Commitment” in the Credit Agreement evidencing the Bank Debt in the
original principal amount of $750,000,000.


 


“Line of
Credit Availability” shall mean the amount of money that, at the end of any
fiscal quarter of the borrower under the Bank Debt of the Line of Credit, is
not outstanding and has not been committed for a purpose other than the payment
of the Impositions, reserves required under the Loan Documents, the purchase of
an Interest Rate Hedge to replace any Interest Rate Hedge pledged to Lender
under the Loan Document, the re-tenanting of any


 


12

















 


Mortgaged
Property subject to a Master Lease, which Master Lease has been terminated or
has expired, or capital expenditures to be made on any Mortgaged Property.


 


“Line of
Credit Triggering Event” means that, at any time, the Line of Credit
Availability is less than $65,000,000, provided that, during any period that
the aggregate of all Loans Outstanding under this Agreement is less than the
amount of Loans Outstanding on the Initial Closing Date, the Line of Credit
Availability requirement for a Line of Credit Triggering Event shall be reduced
by the percentage by which the principal balance of Loans outstanding has been
reduced. By way of example, if the total amount of Loans Outstanding is 10%
less than the total amount of Loans Outstanding on the Initial Closing Date,
the Line of Credit Triggering Event shall be reduced by 10% to $58,500,000.


 


“Loan”
means a Variable Loan and/or a Fixed Loan.


 


“Loan
Amount” means, for any Loan, the outstanding principal amount of the Loan
made to a Collateral Pool Borrower. The amount of the Initial Loan to each
Collateral Pool Borrower is shown on Exhibit A to the Agreement.


 


“Loan
Document Taxes” shall have the meaning set forth in Section 6.10.


 


“Loan
Documents” means with respect to any Collateral Pool, the Agreement, the
Notes, the Security Documents, all documents executed by a Collateral Pool
Borrower, IDOT Guarantor or Guarantor pursuant to the General Conditions set
forth in Article 4 of the Agreement and any other documents executed by
a Collateral Pool Borrower or Guarantor from time to time in connection with
the Agreement or the transactions contemplated by the Agreement.


 


“Loan
Request” means a written request, substantially in the form of Exhibit I
to the Agreement, for a Loan made pursuant to this Agreement.


 


“Loan to
Value Ratio” means, for a Mortgaged Property, for any specified date, the
ratio (expressed as a percentage) of —


 


(a)           the Allocable Loan
Amount of the subject Mortgaged Property on the specified date,


 


to


 


(b)           the Valuation most
recently obtained prior to the specified date for the subject Mortgaged
Property.


 


“Loan Year”
means the twelve (12) month period from the first day of the first calendar
month after the Initial Closing Date to and including the last day before the
first anniversary of the Initial Closing Date, and each twelve (12) month
period thereafter.


 


“LOC Bank”
means any financial institution issuing the Letter of Credit and meeting the
requirements set forth in Section 4.08.


 


13

















 


“Master
Lease” means, individually and collectively, any lease of an entire
Mortgaged Property to a single tenant, which Master Lease and the tenant
thereunder shall be satisfactory to Lender.


 


“Master
Tenant” means the tenant of the Improvements under one or more Master
Leases.


 


“Material
Adverse Effect” means, with respect to any circumstance, act, condition or
event of whatever nature (including any adverse determination in any
litigation, arbitration, or governmental investigation or proceeding), whether singly
or in conjunction with any other event or events, act or acts, condition or
conditions, or circumstance or circumstances, whether or not related, a
material adverse change in or a materially adverse effect upon any of (a) the
business, operations, property or condition (financial or otherwise) of
Borrower, IDOT Guarantor or Guarantor, (b) the present or future ability of
Borrower, IDOT Guarantor or Guarantor to perform the Obligations for which it
is liable, (c) the validity, priority, perfection or enforceability of the
Agreement or any other Loan Document or the rights or remedies of Lender under
any Loan Document, or (d) the value of, or Lender’s ability to have recourse
against, any Mortgaged Property.


 


“Moody’s”
means Moody’s Investors Service, Inc., a corporation organized and existing
under the laws of the State of Delaware, and its successors and assigns, if
such successors and assigns shall continue to perform the functions of a
securities rating agency.


 


“Mortgaged
Properties” means, collectively, the Substitute Mortgaged Properties and
the Initial Mortgaged Properties, but excluding each Release Mortgaged Property
from and after the date of its release from a Collateral Pool.


 


“Multifamily
Residential Property” means a residential property, located in the United
States, containing five or more dwelling units in which not more than twenty
percent (20%) of the net rentable area is or will be rented to non-residential
tenants, and conforming to the requirements of Lender for similar loans anticipated
to be sold to Fannie Mae.


 


“Net
Operating Income” means, for any specified period, with respect to any
Multifamily Residential Property, the aggregate net income during such period
equal to Gross Revenues during such period less the aggregate Operating
Expenses during such period. If a Mortgaged Property is not owned by a Borrower
or IDOT Guarantor or an Affiliate of a Borrower or IDOT Guarantor for the
entire specified period, the Net Operating Income for the Mortgaged Property
for the time within the specified period during which the Mortgaged Property
was owned by a Borrower or IDOT Guarantor or an Affiliate of a Borrower or IDOT
Guarantor shall be the Mortgaged Property’s net operating income determined by
Lender in accordance with the underwriting procedures set forth by Lender for
similar loans anticipated to be sold to Fannie Mae.


 


“Note”
means any Fixed Loan Note and/or Variable Loan Note.


 


“Obligations”
means the aggregate of the obligations of a Collateral Pool Borrower, IDOT
Guarantor and Guarantor under the Agreement and the other Loan Documents.


 


14

















 


“One-Month
LIBOR Rate” means the British Bankers Association fixing of the London
Inter-Bank Offered Rate for 1-month U.S. Dollar-denominated deposits as
reported by Telerate through electronic transmission. If the Index is no longer
available, or is no longer posted through electronic transmission, Lender will
choose a new index that is based upon comparable information and provide notice
thereof to Borrower.


 


“Operating
Expenses” means, for any period, with respect to any Multifamily
Residential Property, all expenses in respect of the Multifamily Residential
Property, as determined by Lender based on the certified operating statement
for such specified period as adjusted to provide for the following: (i) all
appropriate types of expenses, including a management fee and deposits to the
Replacement Reserves (whether funded or not), are included in the total
operating expense figure; (ii) upward adjustments to individual line item
expenses to reflect market norms or actual costs and correct any unusually low
expense items, which could not be replicated by a different owner or manager (e.g.,
a market rate management fee will be included regardless of whether or not a
management fee is charged, market rate payroll will be included regardless of
whether shared payroll provides for economies, etc.); and (iii) downward
adjustments to individual line item expenses to reflect unique or aberrant
costs (e.g., non-recurring capital costs, non-operating borrower
expenses, etc.).


 


“Organizational
Certificate” means, collectively, certificates from Borrower, IDOT
Guarantor and Guarantor to Lender, in the form of Exhibit G-1 through G-3
to the Agreement, certifying as to certain organizational matters with respect
to each Borrower, IDOT Guarantor and Guarantor.


 


“Organizational
Documents” means all certificates, instruments and other documents pursuant
to which an organization is organized or operates, including but not limited
to, (i) with respect to a corporation, its articles of incorporation and
bylaws, (ii) with respect to a limited partnership, its limited partnership
certificate and partnership agreement, (iii) with respect to a general
partnership or joint venture, its partnership or joint venture agreement and
(iv) with respect to a limited liability company, its articles of organization
and operating agreement.


 


“Origination
Fee” shall have the meaning set forth in Section 8.02.


 


“Other
Borrower” shall have the meaning set forth in Section 12.09 of the
Agreement.


 


“Other
Borrower Secured Obligation” shall have the meaning set forth in Section
12.04.


 


“Outstanding”
means, when used in connection with promissory notes, other debt instruments or
Loans, for a specified date, promissory notes or other debt instruments which
have been issued, or Loans which have been made, to the extent not repaid in
full as of the specified date.


 


“Ownership
Interests” means, with respect to any entity, any ownership interests in
the entity and any economic rights (such as a right to distributions, net cash
flow or net income) to which the owner of such ownership interests is entitled.


 


“PBGC”
means the Pension Benefit Guaranty Corporation or any entity succeeding to any
or all of its functions under ERISA.


 


15

















 


“Permits”
means all permits, or similar licenses or approvals issued and/or required by
an applicable Governmental Authority or any Applicable Law in connection with
the ownership, use, occupancy, leasing, management, operation, repair,
maintenance or rehabilitation of any Mortgaged Property or any Borrower’s or
IDOT Guarantor’s business.


 


“Permitted
Investments” shall have the meaning set forth on Exhibit N attached
to the Agreement.


 


“Permitted
Liens” means, with respect to a Mortgaged Property:


 


(i)            the exceptions to
title to the Mortgaged Property set forth in the Title Insurance Policy for the
Mortgaged Property which are approved by Lender;


 


(ii)           Liens securing
Obligations to Lender, including the Lien of the Security Instrument
encumbering the Mortgaged Property;


 


(iii)          Liens for taxes not yet
delinquent;


 


(iv)          Liens in respect of
property imposed by law arising in the ordinary course of business such as
materialmen’s, mechanics’, warehousemen’s, carriers’, landlords’ and other
nonconsensual statutory Liens which (A) are not yet due and payable or (B) are
released of record, bonded over or otherwise remedied to Lender’s satisfaction
within sixty (60) days of the date of commencement of enforcement of any such
Lien or before such earlier date on which Borrower’s or IDOT Guarantor’s
interest in the applicable property is subject to forfeiture by enforcement of
any such Lien;


 


(v)           Subject to (1) the
provisions of Section 20 of the Security Instrument and (2) Borrower or IDOT
Guarantor providing Lender with a copy of each document within sixty (60) days
of the later of (x) the execution of such document, and (y) the date such
document is recorded: easements, rights-of-way, restrictions (including zoning
restrictions), matters of plat, minor defects or irregularities in title,
licenses or lease agreements for laundry, cable television, telephone and other
similar Liens which, in the aggregate, do not materially reduce the value of
the Mortgaged Property or materially interfere with the operation and use of,
or the ordinary conduct of the business on, the Mortgaged Property (provided
that any laundry or cable television licenses or leases shall not be a
Permitted Lien if it does not comply with Lender’s requirement for similar
loans anticipated to be sold to Fannie Mae). Notwithstanding the foregoing, to
the extent any of the foregoing items could reasonably be deemed to adversely
affect (on an aggregate basis) the value of the Mortgaged Property by more than
the lesser of (A) $1,000,000 and (B) ten percent (10%) of the value of the
Mortgaged Property, such item shall not be considered a Permitted Lien and
shall require Lender’s prior written consent.


 


16

















 


(vi)          any
other Liens expressly permitted by the Loan Documents (including any delinquent
tax Liens being contested in accordance with the terms of the Security
Instrument); and


 


(vii)         any
other Liens approved by Lender.


 


“Person”
means an individual, an estate, a trust, a corporation, a partnership, a
limited liability company or any other organization or entity (whether
governmental or private).


 


“Plan”
means a “multiemployer plan” as defined in Section 4001(3) of ERISA and a “single
employee plan” as defined in Section 4001(5) of ERISA.


 


“Pool
Termination Date” means, at any time during which the Loans are Outstanding
with respect to a particular Collateral Pool, the latest maturity date for any
Loan Outstanding, taking into account any Extensions permitted under Section
1.05 and any Additional Fixed Loan made pursuant to Section 2.05.


 


“Potential
Event of Default” means with respect to a particular Collateral Pool any
event which, with the giving of notice or the passage of time, or both, would
constitute an Event of Default.


 


“Prohibited
Person” means (i) a Person that is the subject of, whether voluntary or
involuntary, any case, proceeding or other action against Borrower or IDOT
Guarantor under any existing or future law of any jurisdiction relating to
bankruptcy, insolvency, reorganization or relief of debtors, or (ii) any Person
with whom Lender is prohibited from doing business pursuant to any law, rule,
regulation, judicial proceeding or administrative directive, or (iii) any
Person identified on the federal “Excluded Parties List System,” the federal “Office
of Foreign Assets and Control list, the U.S. Department of Housing and Urban
Development’s Limited Denial of Participation, HUD Funding Disqualifications
and Voluntary Abstentions List,” or (iv) on the Lender’s “Multifamily Applicant
Experience Check,” each of which may be amended from time to time and any
successor or replacement thereof, or (v) a Person that is determined by Fannie
Mae to have an unacceptable level outstanding debt to Fannie Mae.


 


“Property”
means any estate or interest in any kind of property or asset, whether real,
personal or mixed, and whether tangible or intangible.


 


“Property
Delivery Deadline” shall have the meaning set forth in Section
3.03(d)(ii).


 


“Property
Manager” means Archstone Property Management LLC, a Delaware limited
liability company, and Archstone Property Management (California) Incorporated,
a Delaware corporation, Tishman Speyer Properties, L.P. or an Affiliate of
Tishman Speyer Properties, L.P. or any other entity hired to operate and manage
the Mortgaged Property, whose hiring is subject to the written approval and
consent of Lender.


 


“Rate
Change Date” has the meaning set forth in each Variable Loan Note
evidencing a Variable Loan.


 


17

















 


“Rate Form”
means the completed and executed document from Borrower to Lender pursuant to Section
2.01(b)(ii), substantially in the form of Exhibit H to the
Agreement, specifying the terms and conditions of the Note rate to be issued
for a requested Additional Fixed Loan.


 


“Rate
Setting Date” shall have the meaning set forth in Section 2.01(b)(ii).


 


“Release”
shall have the meaning set forth in Section 3.01.


 


“Release
Documents” mean instruments releasing the applicable Security Instrument as
a Lien on a Mortgaged Property, and UCC-3 Termination Statements terminating
the UCC-1 Financing Statements, and such other documents and instruments to
evidence the release of such Mortgaged Property from a Collateral Pool.


 


“Release
Fee” means $10,000 for each Release Mortgaged Property.


 


“Release
Mortgaged Property” means the Mortgaged Property to be released pursuant to
Article 3.


 


“Release
Price” shall have the meaning set forth in Section 3.02(c).


 


“Release
Request” means a written request, substantially in the form of Exhibit J
to the Agreement, to obtain a release of Collateral from a Collateral Pool
pursuant to Section 3.02(a).


 


“Remaining
Mortgaged Properties” shall have the meaning set forth in Section
4.04(g).


 


“Rent Roll”
means, with respect to any Multifamily Residential Property, a rent roll
prepared and certified by the owner of the Multifamily Residential Property, on
Fannie Mae Form 4243 or on another form approved by Lender and containing
substantially the same information as Form 4243 requires.


 


“Replacement
Reserve Agreement” means a Replacement Reserve and Security Agreement,
reasonably required by Lender, and completed in accordance with requirements of
Lender for similar loans anticipated to be sold to Fannie Mae.


 


“Request”
means a Loan Request, a Substitution Request, or a Release Request.


 


“Rescinded
Payment” shall have the meaning set forth in Section 12.10.


 


“Resident
Agreement” means, with respect to any Mortgaged Property that is subject to
a Master Lease, a written agreement for occupancy of a portion of a Mortgaged
Property by an individual resident.


 


“Re-Underwriting
Fee” shall have the meaning set forth in Section 8.01.


 


“S&P”
shall mean Standard & Poor’s Credit Markets Services, a division of The McGraw-Hill
Companies, Inc., a New York corporation, and its successors and assigns, if
such successors and assigns shall continue to perform the functions of a
securities rating agency.


 


18

















 


“Security”
means a “security” as set forth in Section 2(1) of the Securities Act of 1933,
as amended.


 


“Security
Documents” means the Security Instruments, the Replacement Reserve
Agreements in connection with Master Leases, and any other documents executed
by the applicable Collateral Pool Borrower or IDOT Guarantor from time to time
to secure any of such Collateral Pool Borrower’s obligations under the Loan
Documents.


 


“Security
Instrument” means, for each Mortgaged Property, a Multifamily Mortgage,
Deed of Trust or Deed to Secure Debt, Assignment of Leases and Rents and
Security Agreement given by a Borrower or IDOT Guarantor to or for the benefit
of Lender to secure the obligations of Collateral Pool Borrower under the Loan
Documents. With respect to each Mortgaged Property owned by a Borrower or IDOT
Guarantor, the Security Instrument shall be substantially in the form published
by Fannie Mae from time to time for use in the state in which the Mortgaged
Property is located. The amount secured by the Security Instrument shall be
equal to the aggregate amount of Loans Outstanding for the applicable
Collateral Pool in effect from time to time; provided, however, that Security
Instruments recorded against a Mortgaged Property or where there is a material
mortgage, recording or intangible tax applicable to the recordation of the
Security Instrument, the amount secured by such Security Instrument shall be
limited to a maximum secured principal amount equal to the product obtained by
multiplying (i) the Valuation of such Mortgaged Property on the date is it
added to the applicable Collateral Pool by (ii) one hundred fifteen percent
(115%).


 


“Senior
Management” means (a) the Chief Executive Officer, Co-Chairman of the
Board, President, Chief Financial Officer and Chief Operating Officer of ASOT,
and (b) any other individuals with responsibility for any of the functions
typically performed in a corporation by the officers described in clause (a).


 


“Single-Purpose”
means, with respect to a Person which is any form of partnership or corporation
or limited liability company, that such Person at all times since its
formation:


 


(i)            has been a duly formed
and existing partnership, corporation or limited liability company, as the case
may be;


 


(ii)           has been duly qualified
in each jurisdiction in which such qualification was at such time necessary for
the conduct of its business;


 


(iii)          has complied with the
provisions of its organizational documents and the laws of its jurisdiction of
formation in all respects;


 


(iv)          has observed all
customary formalities regarding its partnership or corporate existence, as the
case may be;


 


(v)           has accurately
maintained its financial statements, accounting records and other partnership
or corporate documents separate from those of any other Person;


 


(vi)          has not commingled its
assets or funds with those of any other Person;


 


19

















 


(vii)         has
identified itself in all dealings with creditors (other than trade creditors in
the ordinary course of business and creditors for the construction of
improvements to property on which such Person has a non-contingent contract to
purchase such property) under its own name and as a separate and distinct
entity;


 


(viii)        has
been adequately capitalized in light of its contemplated business operations;


 


(ix)           has not assumed, guaranteed or become
obligated for the liabilities of any other Person (except in connection with a
Collateral Pool or the endorsement of negotiable instruments in the ordinary
course of business) or held out its credit as being available to satisfy the
obligations of any other Person;


 


(x)            has
not acquired obligations or securities of any other Person;


 


(xi)           in relation to a Borrower or IDOT Guarantor,
except for loans made in the ordinary course of business to Affiliates, has not
made loans or advances to any other Person;


 


(xii)          has not entered into and was not a party to
any transaction with any Affiliate of such Person, except in the ordinary
course of business and on terms which are no less favorable to such Person than
would be obtained in a comparable arm’s-length transaction with an unrelated
third-party;


 


(xiii)         has paid the salaries of its own employees, if
any;


 


(xiv)        has allocated fairly and reasonably any
overhead for shared office space;


 


(xv)         has not engaged in a non-exempt prohibited
transaction described in Section 406 of ERISA or Section 4975 of the Internal
Revenue Code to the extent it is subject to ERISA;


 


(xvi)        has complied with the requirements of Section
33 of the Security Instrument;


 


(xvii)       provides in its Organizational Documents that
for so long as the Loan is outstanding pursuant to the Loan Documents, it shall
not file or consent to the filing of any petition, either voluntary or
involuntary, to take advantage of any applicable insolvency, bankruptcy,
liquidation or reorganization statute, or make an assignment for the benefit of
creditors without the affirmative vote of an Independent Director and of all
other general partners/managing member/directors. For purposes of this
paragraph (xvii), Independent Director shall mean an independent manager or
director that is not and has not been for at least five (5) years: (a) a
stockholder, director, officer, employee, partner, member, attorney or counsel
of such Person or of such principal or any Affiliate of either of them; (b) a
customer, supplier or other Person who derives its purchases or revenues (other
than any fee paid to such director as compensation for such director to serve
as an Independent Director) from its activities with such Person, such
principal or any Affiliate of either of them (a “Business Party”); (c) a Person controlling or under common
control with any such stockholder, partner,


 


20

















 


member,
director, officer, attorney, or counsel; (d) a member of the immediate family
of any such stockholder, director, officer, employee, partner, member,
attorney, or counsel; provided, however, that a Person shall not be deemed to
be a director of any Affiliate solely by reason of such Person being a director
of an affiliated single-purpose entity (other than Senior Mezzanine Borrower or
Junior Mezzanine Borrower. Notwithstanding the foregoing, no Independent
Director shall also serve as (1) an Independent Director (as such term is
defined in the Senior Mezzanine Loan Agreement) for Senior Mezzanine Borrower
or Principal (as such term is defined in the Senior Mezzanine Loan Agreement)
of Senior Mezzanine Borrower or (2) an Independent Director (as such term is
defined in the Junior Mezzanine Loan Agreement) for Junior Mezzanine Borrower
or Principal (as such term is defined in the Junior Mezzanine Loan Agreement)
of Junior Mezzanine Borrower; and


 


(xviii)      has
paid its expenses and liabilities out of its own funds, including through the
use of capital contributions.


 


“Subject
Borrower” shall have the meaning set forth in Section 12.09.


 


“Subordinated
Obligations” shall have the meaning set forth in Section 12.08.


 


“Substitute
Cash Collateral” shall have the meaning set forth in Section 3.03(d)(ii).


 


“Substitute
Mortgaged Property” means each Multifamily Residential Property owned by
any Borrower, IDOT Guarantor, Additional Borrower or Additional IDOT Guarantor
(either in fee simple or as tenant under a ground lease meeting all of Lender’s
requirements for similar loans anticipated to be sold to Fannie Mae) and added
to a Collateral Pool after the Initial Closing Date in connection with a
substitution of Collateral as permitted by Section 3.03.


 


“Substitution”
shall have the meaning set forth in Section 3.03.


 


“Substitution
Deposit” shall have the meaning set forth in Section 3.03(e).


 


“Substitution
Fee” means with respect to any Substitution effected in accordance with Section
3.03, a fee in the amount of $10,000 for each substitute property added to
a Collateral Pool.


 


“Substitution
Loan Documents” means the Security Instrument covering a Substitute
Mortgaged Property and any other documents, instruments or certificates
reasonably required by Lender in form and substance satisfactory to Lender and
Borrower or IDOT Guarantor in connection with the addition of the Substitute
Mortgaged Property to a Collateral Pool pursuant to Article 3. When
possible, such Substitution Loan Documents shall be based substantially on the
documents executed on the Initial Closing Date, with changes (i) required to
comply with the laws of the state where the Substitute Mortgaged Property is
located and (ii) as may be required by Lender due to the character and quality
of the Substitute Mortgaged Property based on Lender’s Underwriting
Requirements.


 


21

















 


“Substitution
Request” means a written request substantially in the form of Exhibit J
to the Agreement for a Substitution made pursuant to Section 3.03.


 


“Surveys”
means the as-built surveys of the Mortgaged Properties prepared in accordance
with Lender’s requirements for similar loans that are anticipated to be sold to
Fannie Mae.


 


“Taxes”
means all taxes, assessments, vault rentals and other charges, if any, general,
special or otherwise, including all assessments for schools, public betterments
and general or local improvements, which are levied, assessed or imposed by any
public authority or quasi-public authority, and which, if not paid, will become
a lien, on the Mortgaged Properties.


 


“Term of
this Agreement” shall be determined as provided in Section 13.10.


 


“Three-Month
LIBOR” means the British Bankers Association fixing of the London
Inter-Bank Offered Rate for 3-month U.S. Dollar-denominated deposits as
reported by Telerate through electronic transmission. If the Index is no longer
available, or is no longer posted through electronic transmission, Lender will
choose a new index that is based upon comparable information and provide notice
thereof to Borrower.


 


“Tishman-Lehman
Bankruptcy Person” shall mean a Tishman Speyer Control Person or a Lehman
Entity that owns a direct or indirect interest in any Borrow Party whose
bankruptcy, insolvency, reorganization, debt adjustment, or winding up or
composition or adjustment of debts, together with the bankruptcy, insolvency,
reorganization, debt adjustment, winding up or composition of adjustment of
debts of any other (whether one or more) Tishman Speyer Control Person or
Lehman Entity owning a direct or indirect interest in any Borrower Party could,
in the reasonable judgment of Lender, have an adverse effect on any Borrower
Party or other Tishman Speyer Control Person or Lehman Entity’s ability to
fulfill its obligations under the Loan Documents, or any such person’s
bankruptcy case is substantially consolidated with the bankruptcy case of any
other Borrower Party or Tishman Speyer Control Person or Lehman Entity


 


“Tishman
Speyer Control Persons” shall mean, as of any applicable determination
date, (i) any of Robert V. Tishman and/or Jerry I. Speyer and/or Robert J.
Speyer, their spouses, descendants, heirs, legatees or devisees; (ii) the
Managing Directors of the general partner of either Tishman Speyer
Archstone-Smith Multifamily Guarantor, L.P. or Tishman Speyer Archstone-Smith
Multifamily Parallel Guarantor, L.L.C. on such determination date who were
either serving as such on the date hereof or have been employed by the general
partner of Tishman Speyer Archstone-Smith Multifamily Guarantor, L.P. or
Tishman Speyer Archstone- Smith Multifamily Parallel Guarantor, L.L.C. for at
least five (5) years prior to such determination date; (iii) the Managing
Directors of TSP on such determination date who were either servicing as such
on the date hereof or have been employed by TSP for at least five (5) years
prior to such determination date; or (iv) any Person directly or indirectly
controlled (as defined in the definition of Affiliate) by one or more of the
persons described in clauses (i) through (iii) above.


 


22

















 


“Title
Company” means First American Title Insurance Company or such other
company(ies) approved by Lender, provided that the Title Company shall be the
same for each Mortgaged Property in the same Collateral Pool.


 


“Title
Insurance Policies” means the mortgagee’s policies of title insurance
issued by the Title Company from time to time relating to each of the Security
Instruments, conforming to Lender’s requirements for similar loans anticipated
to be sold to Fannie Mae, together with such endorsements, coinsurance,
reinsurance and direct access agreements with respect to such policies as
Lender may, from time to time, consider necessary or appropriate, including
variable credit endorsements, if available, and tie-in endorsements, if available,
and with an aggregate limit of liability under the policy (subject to the
limitations contained in sections of the Stipulations and Conditions of the
policy relating to a Determination and Extent of Liability) equal to the
aggregate amount of Loans Outstanding for the applicable Collateral Pool.


 


“Transfer”
means


 


(1)           as used with respect to
Ownership Interests in Borrower, IDOT Guarantor or Guarantor means (i) a sale,
assignment, pledge, transfer or other disposition of any Ownership Interest in
Borrower or IDOT Guarantor or in any entity that has a direct or indirect
Ownership Interest in Borrower or IDOT Guarantor, or (ii) the issuance or other
creation of new Ownership Interests in Borrower, IDOT Guarantor or Guarantor or
in any entity that has a direct or indirect Ownership Interest in Borrower,
IDOT Guarantor or Guarantor that is not in compliance with the laws of the
United States, or (iii) a merger or consolidation of Borrower or IDOT Guarantor
or of any entity that has a direct or indirect Ownership Interest in Borrower
or IDOT Guarantor, as the case may be, into another entity or of another entity
into Borrower or IDOT Guarantor or into any entity that has a direct or
indirect Ownership Interest in Borrower or IDOT Guarantor, as the case may be,
or (iv) the reconstitution of Borrower or IDOT Guarantor or of any entity that
has a direct or indirect Ownership Interest in Borrower or IDOT Guarantor from
one type of entity to another type of entity, or (v) the amendment,
modification or any other change in the governing instrument or instruments of
a Person which has the effect of changing the relative powers, rights,
privileges, voting rights or economic interests of the Ownership Interests in
such Person.


 


(2)           as used with respect to
Ownership Interests in a Mortgaged Property means a sale, assignment, lease,
pledge, transfer or other disposition (whether voluntary or by operation of
law) of, or the granting or creating of a lien (other than a Permitted Lien),
encumbrance or security interest in, any estate, rights, title or interest in a
Mortgaged Property, or any portion thereof. Transfer does not include a
conveyance of a Mortgaged Property at a judicial or non-judicial foreclosure
sale under any security instrument or the Mortgaged Property becoming part of a
bankruptcy estate by operation of law under the United States Bankruptcy Code.


 


“TSP”
shall mean Tishman Speyer Properties, L.P., a New York limited partnership.


 


“Underwriting
Requirements” means Lender’s overall underwriting requirements for
Multifamily Residential Properties in connection with loans anticipated to be
sold to Fannie Mae as such requirements may be amended, modified, updated,
superseded, supplemented or replaced from time to time.


 


23

















 


“Valuation”
means, for any specified date, with respect to a Multifamily Residential
Property, (a) if an Appraisal of the Multifamily Residential Property was more
recently obtained than a Cap Rate for the Multifamily Residential Property, the
Appraised Value of such Multifamily Residential Property, or (b) if a Cap Rate
for the Multifamily Residential Property was more recently obtained than an
Appraisal of the Multifamily Residential Property, the value derived by
dividing—


 


(i)            the
Net Operating Income of such Multifamily Residential Property, by


 


(ii)           the
most recent Cap Rate determined by Lender or determined pursuant to Section
2.04 or Section 2.05.


 


Notwithstanding
the foregoing, any Valuation for a Multifamily Residential Property calculated
for a date occurring before the date twelve (12) months after the date on which
the Multifamily Residential Property becomes a part of a Collateral Pool shall
equal the Appraised Value of such Multifamily Residential Property, unless
Lender determines that changed market or property conditions warrant that the
value be determined as set forth in the preceding sentence.


 


“Variable
Loan” means a variable-rate loan made by Lender to Borrower under this
Agreement that is anticipated to be sold to Fannie Mae under the Fannie Mae
Structured Adjustable Rate Mortgage program.


 


“Variable
Loan Fee” means one hundred twenty six and one-half (126.5) basis points
per annum (1.265%) for a Variable Loan.


 


“Variable
Loan Note” means the promissory note, in the form attached as Exhibit C
to the Agreement, which will be issued by the applicable Collateral Pool
Borrower to Lender on the Initial Closing Date to evidence such Borrower’s
obligation to repay Variable Loans.


 


“Waiving
Borrower” shall have the meaning set forth in Section 12.04.


 


24
















 


EXHIBIT
A TO MASTER CREDIT FACILITY AGREEMENT


 


SCHEDULE
OF COLLATERAL POOL BORROWERS, INITIAL MORTGAGED PROPERTIES, COLLATERAL

POOLS, INITIAL LOANS AND INITIAL VALUATIONS


 


	
  Property

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Initial

  	
   

  
	
  Number

  	
   

  	
  Borrower Name

  	
   

  	
  Mortgaged Property

  	
   

  	
  Property Address

  	
   

  	
  Valuation

  	
   

  
	
  COLLATERAL POOL 1: $493,329,410 Initial Loan to
  such Collateral Pool

  	
   

  	
   

  	
   

  
	
  MA012/2

  	
   

  	
  ASN Bear Hill LLC

  	
   

  	
  Archstone Bear Hill

  	
   

  	
  1449 Main Street

  	
   

  	
  $

  	
  126,280,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Waltham, MA

  	
   

  	
   

  	
   

  
	
  MA060/6

  	
   

  	
  ASN Quarry Hills LLC

  	
   

  	
  Archstone Quarry Hills

  	
   

  	
  333 Ricciuti Drive

  	
   

  	
  $

  	
  122,210,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Quincy, MA

  	
   

  	
   

  	
   

  
	
  MA031/9

  	
   

  	
  ASN Watertown LLC

  	
   

  	
  Archstone Watertown Square

  	
   

  	
  20 Watertown Street

  	
   

  	
  $

  	
  52,020,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Watertown, MA

  	
   

  	
   

  	
   

  
	
  CA184/81

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Cupertino

  	
   

  	
  5608 Stevens Creek Blvd.

  	
   

  	
  $

  	
  113,910,000

  	
   

  
	
   

  	
   

  	
  Cupertino, L.L.C.

  	
   

  	
   

  	
   

  	
  Cupertino, CA

  	
   

  	
   

  	
   

  
	
  CA035/82

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Emerald Park

  	
   

  	
  5095 Haven Place

  	
   

  	
  $

  	
  95,000,000

  	
   

  
	
   

  	
   

  	
  Emerald Park, L.L.C.

  	
   

  	
   

  	
   

  	
  Dublin, CA

  	
   

  	
   

  	
   

  
	
  CA036/85

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Hacienda

  	
   

  	
  5650 Owens Drive

  	
   

  	
  $

  	
  155,000,000

  	
   

  
	
   

  	
   

  	
  Hacienda, L.L.C.

  	
   

  	
   

  	
   

  	
  Pleasanton, CA

  	
   

  	
   

  	
   

  
	
  CA098/87

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Mountain View

  	
   

  	
  870 E. El Camino Real

  	
   

  	
  $

  	
  46,620,000

  	
   

  
	
   

  	
   

  	
  Mountain View, L.L.C.

  	
   

  	
   

  	
   

  	
  Mountain View, CA

  	
   

  	
   

  	
   

  
	
  CA015/88

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Redwood Shores

  	
   

  	
  850 Davit Lane

  	
   

  	
  $

  	
  86,000,000

  	
   

  
	
   

  	
   

  	
  Redwood Shores, L.L.C.

  	
   

  	
   

  	
   

  	
  Redwood City, CA

  	
   

  	
   

  	
   

  
	
  COLLATERAL POOL 2:  $707,648,573 Initial Loan to such
  Collateral Pool 

  	
   

  	
   

  	
   

  
	
  MA056/5

  	
   

  	
  ASN Kendall Square LLC,

  	
   

  	
  Archstone Kendall Square

  	
   

  	
  195 Binney Street

  	
   

  	
  $

  	
  78,450,000

  	
   

  
	
   

  	
   

  	
  successor-by-merger to ASN

  	
   

  	
   

  	
   

  	
  Cambridge, MA

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Worthington Place LLC

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CA166/33

  	
   

  	
  ASN Los Feliz LLC

  	
   

  	
  Archstone Los Feliz

  	
   

  	
  3100 Riverside Drive

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Los Angeles, CA

  	
   

  	
   

  	
   

  
	
  CA162/36

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Old Town Pasadena

  	
   

  	
  350 Del Mar Boulevard

  	
   

  	
  $

  	
  29,400,000

  	
   

  
	
   

  	
   

  	
  Old Town Pasadena, L.L.C.

  	
   

  	
   

  	
   

  	
  Pasadena, CA

  	
   

  	
   

  	
   

  
	
  CA089/38

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Playa Del Ray

  	
   

  	
  8700 Pershing Drive

  	
   

  	
  $

  	
  167,600,000

  	
   

  
	
   

  	
   

  	
  Playa Del Rey, L.L.C.

  	
   

  	
   

  	
   

  	
  Playa Del Rey, CA

  	
   

  	
   

  	
   

  
	
  CA163/43

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Thousand Oaks

  	
   

  	
  351 Hodencamp Road

  	
   

  	
  $

  	
  55,200,000

  	
   

  
	
   

  	
   

  	
  Thousand Oaks, L.L.C.

  	
   

  	
   

  	
   

  	
  Thousand Oaks, CA

  	
   

  	
   

  	
   

  
	
  NY032/65

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Carmargue

  	
   

  	
  303 E 83rd

  	
   

  	
  $

  	
  212,700,000

  	
   

  
	
   

  	
   

  	
  Carmargue I, L.L.C.; Tishman

  	
   

  	
   

  	
   

  	
  New York, NY

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Speyer Archstone-Smith

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Carmargue II, L.L.C.; Tishman

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Speyer Archstone-Smith

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Carmargue III, L.L.C.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CA161/71

  	
   

  	
  ASN La Jolla Colony LLC

  	
   

  	
  Archstone La Jolla Colony

  	
   

  	
  7205 Charmant Drive

  	
   

  	
  $

  	
  49,020,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  San Diego, CA

  	
   

  	
   

  	
   

  
	
  CA189/92

  	
   

  	
  ASN San Mateo LLC

  	
   

  	
  Archstone San Mateo

  	
   

  	
  1101 Park Place

  	
   

  	
  $

  	
  242,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  San Mateo, CA

  	
   

  	
   

  	
   

  
	
  CA190/95

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone South Market

  	
   

  	
  One Saint Francis Place

  	
   

  	
  $

  	
  197,100,000

  	
   

  
	
   

  	
   

  	
  South Market, L.L.C.

  	
   

  	
   

  	
   

  	
  San Francisco, CA

  	
   

  	
   

  	
   

  
	
  CA164/98

  	
   

  	
  ASN Walnut Ridge LLC

  	
   

  	
  Archstone Walnut Ridge

  	
   

  	
  2992 Santos Lane

  	
   

  	
  $

  	
  31,800,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Walnut Creek, CA

  	
   

  	
   

  	
   

  
	
  WA039/112

  	
   

  	
  ASN Redmond Lakeview LLC

  	
   

  	
  Archstone Redmond Lakeview

  	
   

  	
  4250 W Lake Sammamish Pkwy.

  	
   

  	
  $

  	
  39,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  NE, Redmond, WA

  	
   

  	
   

  	
   

  
	
  COLLATERAL POOL 3: $1,265,805,659 Initial Loan
  to such Collateral Pool

  	
   

  	
   

  	
   

  
	
  CA156/30

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Del Mar Station

  	
   

  	
  265 Arroyo Parkway

  	
   

  	
  $

  	
  169,200,000

  	
   

  
	
   

  	
   

  	
  Del Mar Station, L.L.C.

  	
   

  	
   

  	
   

  	
  Pasadena, CA

  	
   

  	
   

  	
   

  



 

















 


	
  Property

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Initial

  	
   

  
	
  Number

  	
   

  	
  Borrower Name

  	
   

  	
  Mortgaged Property

  	
   

  	
  Property Address

  	
   

  	
  Valuation

  	
   

  
	
  CA151/35

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Oak Creek

  	
   

  	
  29128 Oak Creek Lane

  	
   

  	
  $

  	
  152,400,000

  	
   

  
	
   

  	
   

  	
  Oak Creek I, L.L.C. and Tishman

  	
   

  	
   

  	
   

  	
  Agoura Hills, CA

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Speyer Archstone-Smith Oak

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Creek II, L.L.C.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CA128/39

  	
   

  	
  ASN Santa Monica LLC

  	
   

  	
  Archstone Santa Monica

  	
   

  	
  425 Broadway

  	
   

  	
  $

  	
  122,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Santa Monica, CA

  	
   

  	
   

  	
   

  
	
  CA154/40

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Santa Monica on 

  	
   

  	
  2000 Main Street

  	
   

  	
  $

  	
  103,700,000

  	
   

  
	
   

  	
   

  	
  Santa Monica on Main, L.L.C.

  	
   

  	
  Main

  	
   

  	
  Santa Monica, CA

  	
   

  	
   

  	
   

  
	
  CA092/41

  	
   

  	
  ASN Studio City LLC; Tishman

  	
   

  	
  Archstone Studio City

  	
   

  	
  10979 Bluffside Drive

  	
   

  	
  $

  	
  289,800,000

  	
   

  
	
   

  	
   

  	
  Speyer Archstone-Smith Studio

  	
   

  	
   

  	
   

  	
  Studio City, CA

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  City III-A, L.L.C.; Tishman

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Speyer Archstone-Smith Studio

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  City III-B, L.L.C.; Tishman

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Speyer Archstone-Smith Studio

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  City III-C, L.L.C.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CA082/42

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Westside

  	
   

  	
  3165 Sawtelle Blvd.

  	
   

  	
  $

  	
  93,200,000

  	
   

  
	
   

  	
   

  	
  Westside, L.L.C.

  	
   

  	
   

  	
   

  	
  Los Angeles, CA

  	
   

  	
   

  	
   

  
	
  NJ003/53

  	
   

  	
  ASN Hoboken I LLC and ASN

  	
   

  	
  Archstone Hoboken

  	
   

  	
  77 Park Avenue

  	
   

  	
  $

  	
  215,000,000

  	
   

  
	
   

  	
   

  	
  Hoboken II LLC

  	
   

  	
   

  	
   

  	
  Hoboken, NJ

  	
   

  	
   

  	
   

  
	
  CA130/93

  	
   

  	
  ASN Santa Clara LLC

  	
   

  	
  Archstone Santa Clara

  	
   

  	
  1650 Hope Drive

  	
   

  	
  $

  	
  121,660,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Santa Clara, CA

  	
   

  	
   

  	
   

  
	
  VA040/153

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Parc Vista

  	
   

  	
  801 15th Street South

  	
   

  	
  $

  	
  102,900,000

  	
   

  
	
   

  	
   

  	
  Parc Vista, L.L.C.

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
  VA054/156

  	
   

  	
  Smith Property Holdings Water

  	
   

  	
  Water Park Towers

  	
   

  	
  1501/1505 Crystal Drive

  	
   

  	
  $

  	
  138,200,000

  	
   

  
	
   

  	
   

  	
  Park Towers L.L.C.

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
  VA063/157

  	
   

  	
  Smith Property Holdings Wilson

  	
   

  	
  2201 Wilson Boulevard

  	
   

  	
  2201 Wilson Boulevard

  	
   

  	
  $

  	
  97,900,000

  	
   

  
	
   

  	
   

  	
  L.L.C.

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
  VA032/160

  	
   

  	
  Smith Property Holdings Ballston

  	
   

  	
  Ballston Place

  	
   

  	
  901 N. Pollard Street

  	
   

  	
  $

  	
  169,600,000

  	
   

  
	
   

  	
   

  	
  Place L.L.C.

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
  VA082/161

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Gallery at Rosslyn

  	
   

  	
  1800 N. Oak Street

  	
   

  	
  $

  	
  130,200,000

  	
   

  
	
   

  	
   

  	
  Gallery at Rosslyn, L.L.C.

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
  DC017/181

  	
   

  	
  Smith Property Holdings Six

  	
   

  	
  Connecticut Heights

  	
   

  	
  4850 Connecticut Ave., NW

  	
   

  	
  $

  	
  130,200,000

  	
   

  
	
   

  	
   

  	
  (D.C.) L.P.

  	
   

  	
   

  	
   

  	
  Washington, DC

  	
   

  	
   

  	
   

  
	
  DC014/183

  	
   

  	
  Smith Property Holdings 4411

  	
   

  	
  Park Connecticut

  	
   

  	
  4411 Connecticut Ave., NW

  	
   

  	
  $

  	
  65,400,000

  	
   

  
	
   

  	
   

  	
  Connecticut L.L.C.

  	
   

  	
   

  	
   

  	
  Washington, DC

  	
   

  	
   

  	
   

  
	
  COLLATERAL POOL 4: $963,497,640 Initial Loan to
  such Collateral Pool

  	
   

  	
   

  	
   

  
	
  MA038/4

  	
   

  	
  Smith Property Holdings

  	
   

  	
  Archstone Cronin ́s Landing

  	
   

  	
  25 Crescent Street

  	
   

  	
  $

  	
  128,640,000

  	
   

  
	
   

  	
   

  	
  Cronin’s Landing L.L.C.

  	
   

  	
   

  	
   

  	
  Waltham, MA

  	
   

  	
   

  	
   

  
	
  MA072/10

  	
   

  	
  ASN CambridgePark LLC

  	
   

  	
  Cambridge Park Place

  	
   

  	
  30 Cambridge Park Drive

  	
   

  	
  $

  	
  109,520,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Cambridge, MA

  	
   

  	
   

  	
   

  
	
  CA119/34

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Marina del Rey

  	
   

  	
  4157 Via Marina

  	
   

  	
  $

  	
  215,000,000

  	
   

  
	
   

  	
   

  	
  Marina del Rey-I, L.L.C. and

  	
   

  	
   

  	
   

  	
  Marina del Rey, CA

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Marina del Rey-II, L.L.C.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CA209/49

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Jefferson at Simi Valley

  	
   

  	
  1579 East Jefferson Way

  	
   

  	
  $

  	
  158,900,000

  	
   

  
	
   

  	
   

  	
  Simi Valley, L.L.C.

  	
   

  	
   

  	
   

  	
  Simi Valley, CA

  	
   

  	
   

  	
   

  
	
  DC016/177

  	
   

  	
  Smith Property Holdings Three

  	
   

  	
  2501 Porter Street

  	
   

  	
  2501 Porter Street, NW

  	
   

  	
  $

  	
  77,200,000

  	
   

  
	
   

  	
   

  	
  (D.C.) L.P.

  	
   

  	
   

  	
   

  	
  Washington, DC

  	
   

  	
   

  	
   

  
	
  VA036/146

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Columbia Crossing

  	
   

  	
  1957 Columbia Pike

  	
   

  	
  $

  	
  81,100,000

  	
   

  
	
   

  	
   

  	
  Columbia Crossing, L.L.C.

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
  VA061/158

  	
   

  	
  Courthouse Hill LLC

  	
   

  	
  Arlington Courthouse Place

  	
   

  	
  1320 N. Veitch Street

  	
   

  	
  $

  	
  233,600,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
  VA058/159

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Arlington Courthouse Plaza

  	
   

  	
  2250 Clarendon Boulevard

  	
   

  	
  $

  	
  142,800,000

  	
   

  
	
   

  	
   

  	
  Arlington Courthouse Plaza,

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  L.L.C.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VA056/166

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Tysons Corner

  	
   

  	
  1723 Gosnell Road

  	
   

  	
  $

  	
  63,000,000

  	
   

  
	
   

  	
   

  	
  Tysons Corner, L.L.C.

  	
   

  	
   

  	
   

  	
  Vienna, VA

  	
   

  	
   

  	
   

  



 


A-2

















 


	
  Property

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Initial

  	
   

  
	
  Number

  	
   

  	
  Borrower Name

  	
   

  	
  Mortgaged Property

  	
   

  	
  Property Address

  	
   

  	
  Valuation

  	
   

  
	
  VA065/168

  	
   

  	
  Smith Property Holdings Reston

  	
   

  	
  Archstone Reston Landing

  	
   

  	
  12000 Cameron Pond Drive

  	
   

  	
  $

  	
  135,500,000

  	
   

  
	
   

  	
   

  	
  Landing L.L.C.

  	
   

  	
   

  	
   

  	
  Reston, VA

  	
   

  	
   

  	
   

  
	
  DC008/178

  	
   

  	
  Smith Property Holdings Alban

  	
   

  	
  Alban Towers

  	
   

  	
  3700 Massachusetts Ave., NW

  	
   

  	
  $

  	
  95,900,000

  	
   

  
	
   

  	
   

  	
  Towers, L.L.C. and Alban

  	
   

  	
   

  	
   

  	
  Washington, DC

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Towers, L.L.C.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DC006/179

  	
   

  	
  Smith Property Holdings Three

  	
   

  	
  Calvert Woodley

  	
   

  	
  2601 Woodley Place, NW

  	
   

  	
  $

  	
  43,700,000

  	
   

  
	
   

  	
   

  	
  (D.C.) L.P.

  	
   

  	
   

  	
   

  	
  Washington, DC

  	
   

  	
   

  	
   

  
	
  DC007/180

  	
   

  	
  Smith Property Holdings Three

  	
   

  	
  Cleveland House

  	
   

  	
  2727 29th Street, NW

  	
   

  	
  $

  	
  71,800,000

  	
   

  
	
   

  	
   

  	
  (D.C.) L.P.

  	
   

  	
   

  	
   

  	
  Washington, DC

  	
   

  	
   

  	
   

  
	
  COLLATERAL POOL 5: $297,592,066 Initial Loan to
  such Collateral Pool

  	
   

  	
   

  	
   

  
	
  CA109/31

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Glendale

  	
   

  	
  201 West Fairview

  	
   

  	
  $

  	
  70,400,000

  	
   

  
	
   

  	
   

  	
  Glendale, L.L.C.

  	
   

  	
   

  	
   

  	
  Glendale, CA

  	
   

  	
   

  	
   

  
	
  CA091/37

  	
   

  	
  ASN Pasadena LLC

  	
   

  	
  Archstone Pasadena

  	
   

  	
  25 South Oak Knoll Avenue

  	
   

  	
  $

  	
  58,400,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Pasadena, CA

  	
   

  	
   

  	
   

  
	
  CA181/44

  	
   

  	
  ASN Thousand Oaks Plaza LLC

  	
   

  	
  Archstone Thousand Oaks Plaza

  	
   

  	
  235 N. Conejo School Road

  	
   

  	
  $

  	
  56,300,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Thousand Oaks, CA

  	
   

  	
   

  	
   

  
	
  CA004/97

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Walnut Creek

  	
   

  	
  1445 Treat Boulevard

  	
   

  	
  $

  	
  123,700,000

  	
   

  
	
   

  	
   

  	
  Walnut Creek, L.L.C.

  	
   

  	
   

  	
   

  	
  Walnut Creek, CA

  	
   

  	
   

  	
   

  
	
  CA040/99

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Willow Glen

  	
   

  	
  3200 Rublino Drive

  	
   

  	
  $

  	
  127,000,000

  	
   

  
	
   

  	
   

  	
  Willow Glen, L.L.C.

  	
   

  	
   

  	
   

  	
  San Jose, CA

  	
   

  	
   

  	
   

  
	
  CA018/102

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Harborside

  	
   

  	
  11 Avocet Drive

  	
   

  	
  $

  	
  45,000,000

  	
   

  
	
   

  	
   

  	
  Harborside, L.L.C.

  	
   

  	
   

  	
   

  	
  Redwood City, CA

  	
   

  	
   

  	
   

  
	
  COLLATERAL POOL 6: $945,336,832 Initial Loan to
  such Collateral Pool

  	
   

  	
   

  	
   

  
	
  CA213/47

  	
   

  	
  ASN Ventura LLC; ASN Ventura

  	
   

  	
  Pacific Strands

  	
   

  	
  930 Pacific Strand Court

  	
   

  	
  $

  	
  56,300,000

  	
   

  
	
   

  	
   

  	
  Two LLC and ASN Ventura Four

  	
   

  	
   

  	
   

  	
  Ventura, CA

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LLC

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CA210/101

  	
   

  	
  ASN Emeryville LLC

  	
   

  	
  Archstone Emeryville

  	
   

  	
  6401 Shellmound Street

  	
   

  	
  $

  	
  62,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Emeryville, CA

  	
   

  	
   

  	
   

  
	
  VA018/176

  	
   

  	
  ASN Fairchase LLC and

  	
   

  	
  Archstone Fairchase

  	
   

  	
  4411 Dixie Hill Road

  	
   

  	
  $

  	
  120,000,000

  	
   

  
	
   

  	
   

  	
  Tishamn Speyer Archstone-Smith

  	
   

  	
   

  	
   

  	
  Fairfax, VA

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Fairchase II, L.L.C.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CA175/198

  	
   

  	
  ASN Mountain View LLC

  	
   

  	
  Oakwood Mountain View

  	
   

  	
  555 W. Middlefield Road

  	
   

  	
  $

  	
  96,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Mountain View, CA

  	
   

  	
   

  	
   

  
	
  CA170/199

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Oakwood San Francisco

  	
   

  	
  900 Powell Street

  	
   

  	
  $

  	
  6,375,000

  	
   

  
	
   

  	
   

  	
  Oakwood San Francisco, L.L.C.

  	
   

  	
   

  	
   

  	
  San Francisco, CA

  	
   

  	
   

  	
   

  
	
  CA169/200

  	
   

  	
  ASN San Jose LLC

  	
   

  	
  Oakwood San Jose South

  	
   

  	
  700 S. Saratoga Avenue

  	
   

  	
  $

  	
  154,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  San Jose, CA

  	
   

  	
   

  	
   

  
	
  MA055/201

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Oakwood Boston

  	
   

  	
  131 State Street

  	
   

  	
  $

  	
  51,430,000

  	
   

  
	
   

  	
   

  	
  Oakwood Boston, L.L.C.

  	
   

  	
   

  	
   

  	
  Boston, MA

  	
   

  	
   

  	
   

  
	
  IL029/202

  	
   

  	
  ASN Oakwood Chicago LLC

  	
   

  	
  Oakwood Chicago

  	
   

  	
  77 West Huron Street

  	
   

  	
  $

  	
  81,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Chicago, IL

  	
   

  	
   

  	
   

  
	
  CA171/203

  	
   

  	
  ASN Long Beach LLC

  	
   

  	
  Oakwood Long Beach Marina

  	
   

  	
  333 First Street

  	
   

  	
  $

  	
  180,220,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Seal Beach, CA

  	
   

  	
   

  	
   

  
	
  CA172/204

  	
   

  	
  ASN Marina LLC

  	
   

  	
  Oakwood Marina Del Rey

  	
   

  	
  4111 Via Marina

  	
   

  	
  $

  	
  105,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Marina Del Rey, CA

  	
   

  	
   

  	
   

  
	
  CA173/205

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Oakwood Toluca Hills

  	
   

  	
  3600-3720 Barham Blvd.

  	
   

  	
  $

  	
  359,100,000

  	
   

  
	
   

  	
   

  	
  Oakwood Toluca Hills, L.L.C.

  	
   

  	
   

  	
   

  	
  Los Angeles, CA

  	
   

  	
   

  	
   

  
	
  CA174/206

  	
   

  	
  ASN Woodland Hills East LLC

  	
   

  	
  Oakwood Woodland Hills

  	
   

  	
  22122 Victory Boulevard

  	
   

  	
  $

  	
  263,290,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Woodland Hills, CA

  	
   

  	
   

  	
   

  
	
  WA041/207

  	
   

  	
  ASN Bellevue LLC

  	
   

  	
  Oakwood Bellevue

  	
   

  	
  938 110th Avenue NE

  	
   

  	
  $

  	
  55,100,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Bellevue, WA

  	
   

  	
   

  	
   

  
	
  WA042/208

  	
   

  	
  ASN Seattle LLC

  	
   

  	
  Oakwood Seattle

  	
   

  	
  312 2nd Avenue W

  	
   

  	
  $

  	
  41,300,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Seattle, WA

  	
   

  	
   

  	
   

  
	
  VA095/210

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Oakwood Arlington

  	
   

  	
  1550 Clarendon Boulevard

  	
   

  	
  $

  	
  59,100,000

  	
   

  
	
   

  	
   

  	
  Oakwood Arlington, L.L.C.

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
  PA002/212

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Oakwood Philadelphia

  	
   

  	
  110-116 S. 16th Street

  	
   

  	
  $

  	
  16,150,000

  	
   

  
	
   

  	
   

  	
  Oakwood Philadelphia, L.L.C.

  	
   

  	
   

  	
   

  	
  Philadelphia, PA

  	
   

  	
   

  	
   

  



 


A-3

















 


	
  Property

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Initial

  	
   

  
	
  Number

  	
   

  	
  Borrower Name

  	
   

  	
  Mortgaged Property

  	
   

  	
  Property Address

  	
   

  	
  Valuation

  	
   

  
	
  COLLATERAL POOL 7: $1,060,031,951 Initial Loan
  to such Collateral Pool

  	
   

  	
   

  	
   

  
	
  MA040/1

  	
   

  	
  Smith Property Holdings 2000

  	
   

  	
  Archstone 2000 Commonwealth

  	
   

  	
  2000 Commonwealth Ave.

  	
   

  	
  $

  	
  75,060,000

  	
   

  
	
   

  	
   

  	
  Commonwealth L.L.C.

  	
   

  	
   

  	
   

  	
  Brighton, MA

  	
   

  	
   

  	
   

  
	
  MA039/7

  	
   

  	
  ASN Quincy LLC (f/k/a Smith

  	
   

  	
  Archstone Quincy

  	
   

  	
  95 W. Squantum Street

  	
   

  	
  $

  	
  52,180,000

  	
   

  
	
   

  	
   

  	
  Property Holdings Sagamore

  	
   

  	
   

  	
   

  	
  Quincy, MA

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Towers L.L.C.)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CA212/46

  	
   

  	
  ASN Ventura Colony LLC (f/k/a

  	
   

  	
  Colony Apartments at Weston

  	
   

  	
  1024 Britten Lane

  	
   

  	
  $

  	
  64,700,000

  	
   

  
	
   

  	
   

  	
  ASN Ventura Colony 1031,

  	
   

  	
  Village

  	
   

  	
  Ventura, CA

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LLC)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CA019/213

  	
   

  	
  ASN Long Beach Harbor LLC

  	
   

  	
  Archstone Long Beach Harbor

  	
   

  	
  1613 Ximeno Avenue

  	
   

  	
  $

  	
  37,500,000

  	
   

  
	
   

  	
   

  	
  (f/k/a ASN Long Beach Harbor

  	
   

  	
  (Bellamar)

  	
   

  	
  Long Beach, CA

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1031, LLC)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CA188/84

  	
   

  	
  ASN Fremont LLC

  	
   

  	
  Archstone Fremont Center

  	
   

  	
  39410 Civic Center Drive

  	
   

  	
  $

  	
  93,600,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Fremont, CA

  	
   

  	
   

  	
   

  
	
  CA187/96

  	
   

  	
  ASN Walnut Creek Station LLC

  	
   

  	
  Archstone Walnut Creek Station

  	
   

  	
  121 Roble Road

  	
   

  	
  $

  	
  85,100,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Walnut Creek, CA

  	
   

  	
   

  	
   

  
	
  DC005/182

  	
   

  	
  Smith Property Holdings One

  	
   

  	
  Corcoran House

  	
   

  	
  1616 18th Street, NW

  	
   

  	
  $

  	
  30,200,000

  	
   

  
	
   

  	
   

  	
  (D.C.) L.P.

  	
   

  	
   

  	
   

  	
  Washington, DC

  	
   

  	
   

  	
   

  
	
  VA039/148

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Crystal Place

  	
   

  	
  1801 Crystal Drive

  	
   

  	
  $

  	
  61,500,000

  	
   

  
	
   

  	
   

  	
  Crystal Place, L.L.C.

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
  VA041/149

  	
   

  	
  Smith Property Holdings Crystal

  	
   

  	
  Crystal Plaza

  	
   

  	
  2111 Jefferson Davis Hwy.

  	
   

  	
  $

  	
  189,700,000

  	
   

  
	
   

  	
   

  	
  Plaza L.L.C.

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
  VA062/155

  	
   

  	
  Smith Property Holdings

  	
   

  	
  The Buchanan

  	
   

  	
  320 23rd Street South

  	
   

  	
  $

  	
  202,400,000

  	
   

  
	
   

  	
   

  	
  Buchanan House L.L.C.

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
  VA091/162

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Gallery at Virginia Square

  	
   

  	
  901 N. Nelson Street

  	
   

  	
  $

  	
  103,000,000

  	
   

  
	
   

  	
   

  	
  Gallery at Virginia Square I,

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  L.L.C.; Tishman Speyer

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Archstone-Smith Gallery at

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Virginia Square II, L.L.C.;

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Gallery at Virginia Square III,

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  L.L.C.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VA059/163

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Lincoln Towers

  	
   

  	
  850 N. Randolph Street

  	
   

  	
  $

  	
  290,800,000

  	
   

  
	
   

  	
   

  	
  Lincoln Tower, L.L.C.

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
  VA081/164

  	
   

  	
  ASN Monument Park LLC

  	
   

  	
  Archstone Monument Park

  	
   

  	
  4457 Oakdale Crescent Ct.

  	
   

  	
  $

  	
  145,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Fairfax, VA

  	
   

  	
   

  	
   

  
	
  VA057/170

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Charter Oak

  	
   

  	
  11637 Charter Oak Court

  	
   

  	
  $

  	
  51,000,000

  	
   

  
	
   

  	
   

  	
  Charter Oak, L.L.C.

  	
   

  	
   

  	
   

  	
  Reston, VA

  	
   

  	
   

  	
   

  
	
  DC018/185

  	
   

  	
  Smith Property Holdings

  	
   

  	
  The Consulate

  	
   

  	
  2950 Van Ness Street, NW

  	
   

  	
  $

  	
  94,400,000

  	
   

  
	
   

  	
   

  	
  Consulate L.L.C.

  	
   

  	
   

  	
   

  	
  Washington, DC

  	
   

  	
   

  	
   

  
	
  DC010/187

  	
   

  	
  Smith Property Holdings One

  	
   

  	
  The Statesman

  	
   

  	
  2020 F Street, NW

  	
   

  	
  $

  	
  84,400,000

  	
   

  
	
   

  	
   

  	
  (D.C.) L.P.

  	
   

  	
   

  	
   

  	
  Washington, DC

  	
   

  	
   

  	
   

  
	
  VA047/209

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Gateway Place

  	
   

  	
  400 South 15th Street

  	
   

  	
  $

  	
  52,400,000

  	
   

  
	
   

  	
   

  	
  Gateway Place, L.L.C.

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
  COLLATERAL POOL 8: $209,453,317 Initial Loan to
  such Collateral Pool

  	
   

  	
   

  	
   

  
	
  CA023/13

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Sierra del Oro

  	
   

  	
  1456 Serfas Club Drive

  	
   

  	
  $

  	
  68,000,000

  	
   

  
	
   

  	
   

  	
  Sierra del Oro, L.L.C.

  	
   

  	
   

  	
   

  	
  Corona, CA

  	
   

  	
   

  	
   

  
	
  WA044/106

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Cedar River

  	
   

  	
  15205 140th Way SE

  	
   

  	
  $

  	
  29,700,000

  	
   

  
	
   

  	
   

  	
  Cedar River, L.L.C.

  	
   

  	
   

  	
   

  	
  Renton, WA

  	
   

  	
   

  	
   

  
	
  VA094/167

  	
   

  	
  ASN Dulles LLC

  	
   

  	
  Archstone Dulles

  	
   

  	
  13800 Jefferson Park Drive

  	
   

  	
  $

  	
  118,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Herndon, VA

  	
   

  	
   

  	
   

  
	
  MD042/173

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  The Meadows at Russett

  	
   

  	
  8185 Scenic Meadows Drive

  	
   

  	
  $

  	
  62,000,000

  	
   

  
	
   

  	
   

  	
  Meadows at Russett I, L.L.C. and

  	
   

  	
   

  	
   

  	
  Laurel, MD

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Meadows at Russett II, L.L.C.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  IDOT Guarantor: ASN Meadows

  	
   

  	
  The Meadows at Russett

  	
   

  	
  8185 Scenic Meadows Drive

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  at Russett I LLC and ASN

  	
   

  	
   

  	
   

  	
  Laurel, MD

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Meadows at Russett II LLC

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-4

















 


	
  Property

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Initial

  	
   

  
	
  Number

  	
   

  	
  Borrower Name

  	
   

  	
  Mortgaged Property

  	
   

  	
  Property Address

  	
   

  	
  Valuation

  	
   

  
	
  MD040/174

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Apartments at Sunset

  	
   

  	
  1000 Columbine Drive

  	
   

  	
  $

  	
  61,000,000

  	
   

  
	
   

  	
   

  	
  Sunset, L.L.C.

  	
   

  	
   

  	
   

  	
  Frederick, MD

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  IDOT Guarantor: ASN Sunset

  	
   

  	
  Apartments at Sunset

  	
   

  	
  1000 Columbine Drive

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LLC

  	
   

  	
   

  	
   

  	
  Frederick, MD

  	
   

  	
   

  	
   

  
	
  COLLATERAL POOL 9: $1,126,630,452 Initial Loan
  to such Collateral Pool

  	
   

  	
   

  	
   

  
	
  NY027/61

  	
   

  	
  ASN Murray Hill LLC

  	
   

  	
  Archstone Murray Hill

  	
   

  	
  240 E. 40th Street

  	
   

  	
  $

  	
  238,800,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  New York, NY

  	
   

  	
   

  	
   

  
	
  NY030/63

  	
   

  	
  ASN Key West LLC

  	
   

  	
  Key West

  	
   

  	
  750 Columbus Avenue

  	
   

  	
  $

  	
  174,100,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  New York, NY

  	
   

  	
   

  	
   

  
	
  NY024/64

  	
   

  	
  ASN Westmont LLC

  	
   

  	
  The Westmont

  	
   

  	
  730 Columbus Avenue

  	
   

  	
  $

  	
  133,200,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  New York, NY

  	
   

  	
   

  	
   

  
	
  CA220/80

  	
   

  	
  ASN Encinitas LLC

  	
   

  	
  Poinsettia Ridge

  	
   

  	
  1100 Garden View Road

  	
   

  	
  $

  	
  36,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  San Diego, CA

  	
   

  	
   

  	
   

  
	
  DC011/189

  	
   

  	
  Smith Property Holdings Van

  	
   

  	
  Tunlaw Park

  	
   

  	
  3850 Tunlaw Road, NW

  	
   

  	
  $

  	
  30,100,000

  	
   

  
	
   

  	
   

  	
  Ness L.P.

  	
   

  	
   

  	
   

  	
  Washington, DC

  	
   

  	
   

  	
   

  
	
  VA048/144

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Archstone Newport Village 

  	
   

  	
  4757 W. Braddock Road

  	
   

  	
  $

  	
  236,400,000

  	
   

  
	
   

  	
   

  	
  Newport Village I and II, L.L.C.

  	
   

  	
  (Phase I, II and III)

  	
   

  	
  Alexandria, VA

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  and Tishman Speyer Archstone-

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Smith Newport Village III, L.L.C.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VA037/147

  	
   

  	
  Smith Property Holdings Crystal

  	
   

  	
  Crystal House

  	
   

  	
  1900 S. Eads Street

  	
   

  	
  $

  	
  226,200,000

  	
   

  
	
   

  	
   

  	
  Houses L.L.C.

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
  VA042/150

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Crystal Square

  	
   

  	
  1515 Jefferson Davis Hwy.

  	
   

  	
  $

  	
  126,600,000

  	
   

  
	
   

  	
   

  	
  Crystal Place, L.L.C.

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
  VA043/151/

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  Crystal Towers/Lofts 590

  	
   

  	
  1600 S. Eads Street; 590 S. 15th

  	
   

  	
  $

  	
  401,000,000

  	
   

  
	
  152

  	
   

  	
  Crystal Towers & Lofts 590,

  	
   

  	
   

  	
   

  	
  Street

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  L.L.C.

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
  VA055/154

  	
   

  	
  Tishman Speyer Archstone-Smith

  	
   

  	
  The Bennington

  	
   

  	
  1201 S. Eads Street

  	
   

  	
  $

  	
  97,600,000

  	
   

  
	
   

  	
   

  	
  Bennington, L.L.C.

  	
   

  	
   

  	
   

  	
  Arlington, VA

  	
   

  	
   

  	
   

  
	
  DC004/184

  	
   

  	
  Smith Property Holdings Five

  	
   

  	
  The Albemarle

  	
   

  	
  4501 Connecticut Ave., NW

  	
   

  	
  $

  	
  77,000,000

  	
   

  
	
   

  	
   

  	
  (D.C.) L.P.

  	
   

  	
   

  	
   

  	
  Washington, DC

  	
   

  	
   

  	
   

  
	
  DC009/188

  	
   

  	
  Smith Property Holdings Van

  	
   

  	
  Tunlaw Gardens

  	
   

  	
  3903 Davis Place, NW

  	
   

  	
  $

  	
  33,300,000

  	
   

  
	
   

  	
   

  	
  Ness L.P.

  	
   

  	
   

  	
   

  	
  Washington, DC

  	
   

  	
   

  	
   

  
	
  DC019/190

  	
   

  	
  Smith Property Holdings Van

  	
   

  	
  Van Ness South

  	
   

  	
  3003 Van Ness Street, NW

  	
   

  	
  $

  	
  201,200,000

  	
   

  
	
   

  	
   

  	
  Ness L.P.

  	
   

  	
   

  	
   

  	
  Washington, DC

  	
   

  	
   

  	
   

  



 


A-5

















 


EXHIBIT
B TO MASTER CREDIT FACILITY AGREEMENT


 


FIXED
LOAN NOTE

(Collateral Pool      )


 


	
  US [$                         ]

  	
   

  	
  [                             ,
       ]

  



 


FOR VALUE
RECEIVED, the undersigned (“Borrower”)
jointly and severally (if more than one) promises to pay to the order of (a) LEHMAN BROTHERS HOLDINGS INC., a Delaware
corporation, (b) BANK OF AMERICA, N.A., a
national banking association, and (c) BARCLAYS
CAPITAL REAL ESTATE INC., a Delaware corporation, their successors,
transferees and assigns (individually and collectively, “Lender”) the principal sum of
                                    
AND NO/100 DOLLARS (US $              ),
with interest accruing on the unpaid principal balance from the date of
disbursement until fully paid at the annual Interest Rate. 


 


This Note is
executed and delivered by Borrower pursuant to that certain Master Credit
Facility Agreement, dated as of October 5, 2007 by and between Borrower, Lender
and others (as amended from time to time, the “Master Agreement”), to evidence the obligation of Borrower
to repay a Fixed Loan made by Lender to Borrower (Collateral Pool Borrower
      ) in accordance with the terms of the
Master Agreement.  This Note is entitled
to the benefit and security of the Loan Documents provided for in the Master
Agreement, to which reference is hereby made for a statement of all of the
terms and conditions under which the Fixed Loan evidenced hereby is made.  All references to Loan Documents and Security
Documents herein shall be with respect to Collateral Pool       
(the “Collateral Pool”) as
further identified in the Master Agreement. 


 


Section
1.              Defined Terms.  In addition to defined terms found elsewhere
in this Note, as used in this Note, the following definitions shall apply: 


 


Amortization
Period:  N/A.


 


Business
Day:   Any day other than a Saturday, Sunday or any
other day on which Lender is not open for business.


 


Debt
Service Amounts: 
Amounts payable under this Note, the Security Instrument or any other
Loan Document. 


 


Default
Rate:  A rate
equal to the lesser of four (4) percentage points above the Interest Rate or
the maximum interest rate which may be collected from Borrower under applicable
law. 


 


Disbursement
Date:  The date
of disbursement of the Loan proceeds hereunder. 


 


First
Payment Date:   The first day of December, 2007. 


 


B-1

















 


Indebtedness:  The
principal of, interest on, or any other amounts due at any time under, this
Note, the Security Instrument or any other Loan Document, including prepayment
premiums, late charges, default interest, and advances to protect the security
of the Security Instrument under Section 12 of the Security Instrument. 


 


Interest
Rate:  The annual
rate of
                               
percent (      %).


 


Lender:  The
holder of this Note.


 


Loan:  The loan evidenced by this Note.


 


Loan
Term:
                                           
months. 


 


Maturity
Date:   The first day of
                                     ,
          , [November, 2012/November, 2014/November, 2017] or
any earlier date on which the unpaid principal balance of this Note becomes due
and payable by acceleration or otherwise. 


 


Security
Instrument: 
Individually and collectively, various multifamily mortgages, deeds to
secure debt or deeds of trust described in the Master Agreement comprising
Collateral Pool      . 


 


Yield
Maintenance Period Term or Prepayment Premium Period Term:  [54/78/114]
months. 


 


Yield
Maintenance Period End Date or Prepayment Premium Period End Date:  The last day of [April, 2012/April, 2014/April, 2017]. 


 


Event of Default and other capitalized terms
used but not defined in this Note shall have the meanings given to such terms
in the Master Agreement or, if not defined in the Master Agreement, as defined
in the Security Instrument.


 


Section
2.              Address for Payment.  All payments due under this Note shall be
payable at c/o Lehman Brothers Holdings Inc., 399 Park Avenue, New York, New
York 10022, or such other place as may be designated by written notice to
Borrower from or on behalf of Lender. 


 


Section
3.              Payment of Principal and
Interest. 
Principal and interest shall be paid as follows: 


 


(a)           Short
Month Interest.  Unless
disbursement of principal is made by Lender to Borrower on the first day of the
month, interest for the period beginning on the Disbursement Date and ending on
and including the last day of the month in which such disbursement is made
shall be payable simultaneously with the execution of this Note.


 


(b)           Interest
Computation Actual/360. 
Interest under this Note shall be computed on the basis of a 360-day
year.  The amount of each monthly payment
made by 


 


B-2

















 


Borrower pursuant to Paragraph 3(c) below
will be based on the actual number of calendar days during such month and shall
be calculated by multiplying the unpaid principal balance of this Note by the
per annum interest rate, dividing the product by 360 and multiplying the
quotient by the actual number of days elapsed during the month.  Borrower understands that the amount of
interest for each month will vary depending on the actual number of calendar
days during such month. 


 


(c)           Monthly Installments.   The
amount of                                                                                
Dollars (US $                                               )
shall be payable on the First Payment Date and thereafter consecutive monthly
installments of interest only, shall be payable as follows: 


 


(i)                                                                                                                                  
Dollars (US $                                  ),
shall be payable on the first day of each month during the term hereof which
follows a 28-day month; 


 


(ii)                                                                                                                               
Dollars (US
$                               ),
shall be payable on the first day of each month during the term hereof which
follows a 29-day month, 


 


(iii)                                                                                                                            
Dollars (US
$                              ),
shall be payable on the first day of each month during the term hereof which
follows a 30-day month, or 


 


(iv)                                                                                                                            
Dollars (US $                             ),
shall be payable on the first day of each month during the term hereof which
follows a 31-day month, 


 


until the entire unpaid principal balance
evidenced by this Note is fully paid. 
The entire principal balance and accrued but unpaid interest shall be
due and payable on the Maturity Date. 
The unpaid principal balance shall continue to bear interest after the
Maturity Date at the Default Rate set forth in this Note until and including
the date on which it is paid in full.


 


(d)           Payments
Before Due Date.  Any
regularly scheduled monthly installment of interest that is received by Lender
before the date it is due shall be deemed to have been received on the due date
solely for the purpose of calculating interest due. 


Section
4.              Application of
Payments.  If at
any time Lender receives, from Borrower or otherwise, any amount applicable to
the Indebtedness that is less than all amounts due and payable at such time,
Lender may apply that payment to amounts then due and payable in any manner and
in any order determined by Lender, in Lender’s discretion.  Borrower agrees that neither Lender’s
acceptance of a payment from Borrower in an amount that is less than all 


 


B-3

















 


amounts then due and payable nor Lender’s
application of such payment shall constitute or be deemed to constitute either
a waiver of the unpaid amounts or an accord and satisfaction. 


 


Section
5.              Security.  The Indebtedness is
secured, among other things, by the Security Instrument, and reference is made
to the Security Instrument for other rights of Lender concerning the collateral
for the Indebtedness. 


 


Section
6.              Acceleration.  If an Event of
Default has occurred and is continuing, the entire unpaid principal balance,
any accrued interest, the prepayment premium payable under Section 10,
if any, and all other amounts payable under this Note and any other Loan
Document shall at once become due and payable, at the option of Lender, without
any prior notice to Borrower.  Lender may
exercise this option to accelerate regardless of any prior forbearance. 


 


Section
7.              Late Charge.   Subject to the
provisions of Section 9.01(b) of the Master Agreement, if any monthly
installment due hereunder is not received by Lender on or before the tenth (10th)
day of each month or if any other amount payable under this Note or under the
Security Instrument or any other Loan Document is not received by Lender within
ten (10) days after the date such amount is due, counting from and including
the date such amount is due, Borrower shall pay to Lender, immediately and
without demand by Lender, a late charge equal to five percent (5%) of such
monthly installment or other amount due (provided that in connection with the
payment in full on the Maturity Date, such 10-day period shall be increased to
fifteen (15) days and such late charge shall equal one percent (1%) of such
payment or other amount due).  Borrower
acknowledges that its failure to make timely payments will cause Lender to
incur additional expenses in servicing and processing the Loan and that it is
extremely difficult and impractical to determine those additional
expenses.  Borrower agrees that the late
charge payable pursuant to this Paragraph represents a fair and reasonable
estimate, taking into account all circumstances existing on the date of this
Note, of the additional expenses Lender will incur by reason of such late
payment.  The late charge is payable in
addition to, and not in lieu of, any interest payable at the Default Rate
pursuant to Section 8. 


 


Section
8.              Default Rate.  So long as any
monthly installment or any other payment due under this Note remains past due
for thirty (30) days or more, interest under this Note shall accrue on the
unpaid principal balance from the earlier of the due date of the first unpaid
monthly installment or other payment due, as applicable, at the Default
Rate.  If the unpaid principal balance
and all accrued interest are not paid in full on the Maturity Date, the unpaid
principal balance and all accrued interest shall bear interest from the
Maturity Date at the Default Rate.  Borrower
also acknowledges that its failure to make timely payments will cause Lender to
incur additional expenses in servicing and processing the Loan, that, during
the time that any monthly installment or payment under this Note is delinquent
for more than thirty (30) days, Lender will incur additional costs and expenses
arising from its loss of the use of the money due and from the adverse impact
on Lender’s ability to meet its other obligations and to take advantage of
other investment opportunities, and that it is extremely difficult and
impractical to determine those additional costs and expenses.  Borrower also acknowledges that, during the
time that any monthly installment or other payment due under this Note is
delinquent for more than thirty (30) days, Lender’s risk of nonpayment of this
Note will be materially increased and Lender is entitled to be compensated for
such increased risk.  Borrower agrees
that the increase 


 


B-4

















 


in the rate of interest payable under this
Note to the Default Rate represents a fair and reasonable estimate, taking into
account all circumstances existing on the date of this Note, of the additional
costs and expenses Lender will incur by reason of Borrower’s delinquent payment
and the additional compensation Lender is entitled to receive for the increased
risks of nonpayment associated with a delinquent advance. 


 


Section
9.              Limits on Personal
Liability.  The
provisions of Article 12 of the Master Agreement (entitled “Limits on
Personal Liability”) are hereby incorporated into this Note by this
reference to the fullest extent as if the text of such Article were set forth
in its entirety herein. 


 


Section
10.            Voluntary and Involuntary
Prepayments.  


 


(a)           A prepayment premium shall be payable
in connection with any prepayment made under this Note as provided below: 


Borrower may
voluntarily prepay all (or a portion) of the unpaid principal balance of this
Note only on the last calendar day of a calendar month (the “Last Day of the Month”) and only if
Borrower has complied with all of the following: 


 


(i)            Borrower must give Lender at least
thirty (30) days (if given via U.S. Postal Service) or twenty (20) days (if
given via facsimile, email or overnight courier), but not more than sixty (60)
days, prior written notice of Borrower’s intention to make a prepayment (the “Prepayment Notice”).  The Prepayment Notice shall be given in
writing (via facsimile, email, U.S. Postal Service or overnight courier) and
addressed to Lender.  The Prepayment
Notice shall include, at a minimum, the Business Day upon which Borrower
intends to make the prepayment (the “Intended
Prepayment Date”).


 


(ii)           Borrower acknowledges that the Lender
is not required to accept any voluntary prepayment of this Note on any day
other than the Last Day of the Month even if Borrower has given a Prepayment
Notice with an Intended Prepayment Date other than the Last Day of the Month or
if the Last Day of the Month is not a Business Day.  Therefore, even if Lender accepts a voluntary
prepayment on any day other than the Last Day of the Month, for all purposes
(including the accrual of interest and the calculation of the prepayment
premium), any prepayment received by Lender on any day other than the Last Day
of the Month shall be deemed to have been received by Lender on the Last Day of
the Month and any prepayment calculation will include interest to and including
the Last Day of the Month in which such prepayment occurs.  If the Last Day of the Month is not a
Business Day, then the Borrower must make the payment on the Business Day
immediately preceding the Last Day of the Month. 


 


(iii)          Any prepayment shall be made by paying
(A) the amount of principal being prepaid, (B) all accrued interest (calculated
to the Last Day of the Month), (C) all other sums due Lender at the time of
such prepayment, and (D) the prepayment premium calculated pursuant to Schedule
A.


 


(iv)          If, for any reason, Borrower fails to
prepay this Note (A) within five (5) Business Days after the Intended Prepayment
Date or (B) if the prepayment occurs in a month other than the month stated in
the original Prepayment Notice, then Lender shall have the 


 


B-5

















 


right, but not the obligation, to recalculate
the prepayment premium based upon the date that Borrower actually prepays this
Note and to make such calculation as described in Schedule A attached
hereto.  For purposes of such
recalculation, such new prepayment date shall be deemed the “Intended Prepayment Date.”


 


(v)           Upon Lender’s exercise of any right
of acceleration under this Note, Borrower shall pay to Lender, in addition to
the entire unpaid principal balance of this Note outstanding at the time of the
acceleration, (i) all accrued interest and all other sums due Lender under this
Note and the other Loan Documents, and (ii) the prepayment premium calculated
pursuant to Schedule A. 


(vi)          Any application by Lender of any
collateral or other security to the repayment of any portion of the unpaid
principal balance of this Note prior to the Maturity Date and in the absence of
acceleration shall be deemed to be a partial prepayment by Borrower, requiring
the payment to Lender by Borrower of a prepayment premium.  The amount of any partial prepayment shall be
computed so as to provide to Lender a prepayment premium computed pursuant to Schedule
A without Borrower having to pay out-of-pocket additional amounts. 


 


(b)           Notwithstanding the provisions of Section
10(a), no prepayment premium shall be payable (1) with respect to any
prepayment occurring as a result of the application of any insurance proceeds
or condemnation award under the Security Instrument, or (2) as provided in
subparagraph (b) of Schedule A. 


 


(c)           Schedule A is hereby
incorporated by reference into this Note. 


 


(d)           Any permitted or required prepayment
of less than the entire unpaid principal balance of this Note shall not extend
or postpone the due date of any subsequent monthly installments, provided the
amount of each monthly installment shall be recomputed to reflect such
prepayment of the Indebtedness. 


 


(e)           Borrower recognizes that any
prepayment of the unpaid principal balance of this Note, whether voluntary or
involuntary or resulting from an Event of Default by Borrower, will result in
Lender’s incurring loss, including reinvestment loss, additional expense and
frustration or impairment of Lender’s ability to meet its commitments to third
parties.  Borrower agrees to pay to
Lender upon demand damages for the detriment caused by any prepayment, and agrees
that it is extremely difficult and impractical to ascertain the extent of such
damages.  Borrower therefore acknowledges
and agrees that the formula for calculating prepayment premiums set forth on Schedule
A represents all of the damages Lender will incur because of a prepayment. 


 


(f)            Borrower further acknowledges that
the prepayment premium provisions of this Note are a material part of the
consideration for the Loan evidenced by this Note, and acknowledges that the
terms of this Note are in other respects more favorable to Borrower as a result
of Borrower’s voluntary agreement to the prepayment premium provisions.


 


B-6
















 


Section
11.            Costs and Expenses. Borrower
shall pay on demand all reasonable expenses and costs, including reasonable
fees and out-of-pocket expenses of attorneys and expert witnesses and costs of
investigation, actually incurred by Lender as a result of any Event of Default
under this Note or in connection with efforts to collect any amount due under
this Note, or to enforce the provisions of any of the other Loan Documents,
including those incurred in post-judgment collection efforts and in any
bankruptcy proceeding (including any action for relief from the automatic stay
of any bankruptcy proceeding) or judicial or non-judicial foreclosure
proceeding.


 


Section
12.            Forbearance. Any
forbearance by Lender in exercising any right or remedy under this Note, the
Security Instrument, or any other Loan Document or otherwise afforded by
applicable law, shall not be a waiver of or preclude the exercise of that or
any other right or remedy. The acceptance by Lender of any payment after the
due date of such payment, or in an amount which is less than the required
payment, shall not be a waiver of Lender’s right to require prompt payment when
due of all other payments or to exercise any right or remedy with respect to
any failure to make prompt payment. Enforcement by Lender of any security for
Borrower’s obligations under this Note shall not constitute an election by
Lender of remedies so as to preclude the exercise of any other right or remedy
available to Lender.


 


Section
13.            Waivers. Except
as expressly provided in this Note or the Master Agreement, presentment demand,
notice of dishonor, protest, notice of acceleration, notice of intent to demand
or accelerate payment or maturity, presentment for payment, notice of
nonpayment, grace, and diligence in collecting the Indebtedness are waived by
Borrower and all endorsers and guarantors of this Note and all other third
party obligors.


 


Section
14.            Loan Charges. Borrower
agrees to pay an effective rate of interest equal to the sum of the Interest
Rate provided for in this Note and any additional rate of interest resulting
from any other charges of interest or in the nature of interest paid or to be
paid in connection with the Loan evidenced by this Note and any other fees or
amounts to be paid by Borrower pursuant to any of the other Loan Documents. Neither
this Note nor any of the other Loan Documents shall be construed to create a
contract for the use, forbearance or detention of money requiring payment of
interest at a rate greater than the maximum interest rate permitted to be
charged under applicable law. If any applicable law limiting the amount of
interest or other charges permitted to be collected from Borrower in connection
with the Loan is interpreted so that any interest or other charge provided for
in any Loan Document, whether considered separately or together with other
charges provided for in any other Loan Document, violates that law, and
Borrower is entitled to the benefit of that law, that interest or charge is
hereby reduced to the extent necessary to eliminate that violation. The
amounts, if any, previously paid to Lender in excess of the permitted amounts
shall be applied by Lender to reduce the unpaid principal balance of this Note.
For the purpose of determining whether any applicable law limiting the amount
of interest or other charges permitted to be collected from Borrower has been
violated, all Indebtedness that constitutes interest, as well as all other
charges made in connection with the Indebtedness that constitute interest,
shall be deemed to be allocated and spread ratably over the stated term of the
Note. Unless otherwise required by applicable law, such allocation and
spreading shall be effected in such a manner that the rate of interest so
computed is uniform throughout the stated term of the Note.


 


B-7

















 


Section
15.            Commercial Purpose. Borrower
represents that the Indebtedness is being incurred by Borrower solely for the
purpose of carrying on a business or commercial enterprise, and not for personal,
family or household purposes.


 


Section
16.            Counting of Days. Except
where otherwise specifically provided, any reference in this Note to a period
of “days” means calendar days, not Business Days.


 


Section
17.            Governing Law; Consent to
Jurisdiction; Waiver of Jury Trial. The provisions of Section
13.06 of the Master Agreement (entitled “Choice of Law; Consent to
Jurisdiction; Waiver of Jury Trial”) are hereby incorporated into this Note
by this reference to the fullest extent as if the text of such Section were set
forth in its entirety herein.


 


Section
18.            Captions. The
captions of the paragraphs of this Note are for convenience only and shall be
disregarded in construing this Note.


 


Section
19.            Notices.
All notices, demands and other communications required or permitted to be given
by Lender to Borrower pursuant to this Note shall be given in accordance with Section
13.08 of the Master Agreement.


 


Section
20.            Security for this Note.
The indebtedness evidenced by this Note is secured by other Security Documents
executed by Collateral Pool Borrower. Reference is made hereby to the Master
Agreement and the Security Documents for additional rights and remedies of
Lender relating to the Indebtedness evidenced by this Note. Each Security
Document shall be released in accordance with the provisions of the Master
Agreement and the Security Documents.


 


Section
21.            Loan May Not Be Reborrowed.
Borrower may not re-borrow any amounts under this Note
which it has previously borrowed and repaid under this Note.


 


Section
22.            Fixed Loan. This
Note is issued to evidence a Fixed Loan made in accordance with the terms of
the Master Agreement.


 


Section
23.            Cross-Default with Master
Agreement. The occurrence and continuance of an Event
of Default with respect to the Collateral Pool under the Master Agreement shall
constitute an “Event of Default”
under this Note, and, accordingly, upon the occurrence of an Event of Default
under the Master Agreement with respect to the Collateral Pool, the entire
principal amount outstanding hereunder and accrued interest thereon shall at
once become due and payable, at the option of the holder hereof.


 


[Remainder of page intentionally left blank.]


 


B-8

















 


ATTACHED
SCHEDULES. The following Schedules are attached to this Note:


 


	
  x

  	
   

  	
  Schedule A
  Prepayment Premium (required)

  



 


[Remainder of page intentionally left blank.]


 


 


B-9

















 


IN WITNESS
WHEREOF, Borrower has signed and delivered this Note under seal or has caused
this Note to be signed and delivered under seal by its duly authorized
representative (which authorized representative shall have no personal
liability hereunder). Borrower intends that this Note shall be deemed to be
signed and delivered as a sealed instrument.


 


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [ADD EACH BORROWER FOR SUCH

  COLLATERAL POOL]

  



 


S-1

















 


ALLONGE TO NOTE


 


 


This Allonge
to Note is attached to and forms a part of the Fixed Loan Note (Collateral Pool
     ) dated October 5, 2007, in the original principal
amount of
$                          
from Borrower to BANK OF AMERICA, N.A., a national banking association,
BARCLAYS CAPITAL REAL ESTATE INC., and LEHMAN BROTHERS HOLDINGS INC., a
Delaware corporation.


 


Pay
to the order of                                                           ,
without recourse.


 


 


	
  Dated as of
  October 5, 2007

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

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

  
	
   

  	
  association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BARCLAYS CAPITAL REAL ESTATE INC., a

  
	
   

  	
  Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
						



 


S-2

















 


ALLONGE TO NOTE


 


 


This Allonge
to Note is attached to and forms a part of the Fixed Loan Note (Collateral Pool
     ) dated October 5, 2007, in the original principal
amount of
$                                       
from Borrower to BANK OF AMERICA, N.A., a national banking association,
BARCLAYS CAPITAL REAL ESTATE INC., a Delaware corporation, and LEHMAN BROTHERS
HOLDINGS INC., a Delaware corporation.


 


Pay
to the order of                                                                  ,
without recourse.


 


 


	
  Dated as of
  October 5, 2007

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

  	
  LEHMAN BROTHERS HOLDINGS INC., a

  
	
   

  	
  Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


S-3

















 


SCHEDULE A


 


PREPAYMENT PREMIUM


 


Any prepayment
premium payable under Section 10 of this Note shall be computed as
follows:


 


(a)                                  If
the prepayment is made at any time after the date of this Note and before the
Yield Maintenance Period End Date, the prepayment premium shall be the greater
of:


 


(i)                                     one
percent (1%) of the amount of principal being prepaid; or


 


(ii)                                  The
product obtained by multiplying:


 


(A)                              the
amount of principal being prepaid,


 


by


 


(B)                                the
difference obtained by subtracting from the Interest Rate on this Note the
yield rate (the “Yield Rate”) on
the
                    %
U.S. Treasury Security due
                                           
(the “Specified U.S. Treasury Security”),
on the twenty-fifth (25th) Business Day preceding (x) the Intended
Prepayment Date, or (y) the date Lender accelerates the Loan or otherwise
accepts a prepayment pursuant to Section 10(a)(3) of this Note, as the
Yield Rate is reported in The Wall Street
Journal,


 


by


 


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


 


	
   

  	
   

  	
  1 – (1 + r)-n/12

  	
   

  	
   

  
	
   

  	
   

  	
  r

  	
   

  	
   

  



 


[r =
     Yield Rate


n =       the
number of months remaining between (1) either of the following: (x) in the case
of a voluntary prepayment, the Last Day of the Month during which the
prepayment is made, or (y) in any other case, the date on which Lender
accelerates the unpaid principal balance of this Note and (2) the Yield
Maintenance Period End Date]


 


In the event
that no Yield Rate is published for the Specified U.S. Treasury Security, then
the nearest equivalent non-callable U.S. Treasury Security having a maturity
date closest to the Yield


 


A-1

















 


Maintenance
Period End Date of this Note shall be selected at Lender’s discretion. If the
publication of such Yield Rates in The Wall
Street Journal is discontinued, Lender shall determine such Yield
Rates from another source selected by Lender.


 


(b)                                 Notwithstanding
the provisions of Paragraph 10(a) of this Note, no prepayment premium shall be
payable with respect to any prepayment made after the Yield Maintenance Period
End Date.


 


[Remainder of page intentionally left blank.]


 


A-2

















 


[Initial Page to Schedule A to Fixed Loan Note]


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INITIAL(S)

  



 

















 


EXHIBIT C TO MASTER CREDIT FACILITY AGREEMENT


 


[NOTE: 
THIS IS A ONE-MONTH SARM FORM;


THREE-MONTH SARM IS AVAILABLE DURING
EXTENSION PERIOD

AND NOTE WILL BE REVISED ACCORDINGLY]


 


VARIABLE LOAN NOTE


(Collateral Pool
     )


 


	
  US
  $[                                                 ]

  	
   

  	
  [                         
        ,     ]

  



 


                FOR
VALUE RECEIVED, the undersigned (“Borrower”) jointly and severally (if more than one)
promises to pay to the order of(a) LEHMAN
BROTHERS HOLDINGS INC., a Delaware corporation, (b) BANK OF AMERICA, N.A., a national banking association,
and (c) BARCLAYS CAPITAL REAL ESTATE INC.,
a Delaware corporation, their successors, transferees and assigns (individually
and collectively, “Lender”),
the principal sum of                                                                                              
Dollars (US $                                  ),
with interest on the unpaid principal balance from the Disbursement Date until
fully paid at the rates applicable from time to time set forth in this Variable
Loan Note (“Note”).


 


This Note is
executed and delivered by Borrower pursuant to that certain Master Credit
Facility Agreement, dated as of October 5, 2007 by and between Borrower, Lender
and others (as amended from time to time, the “Master Agreement”), to evidence the obligation of Borrower
to repay a Variable Loan made by Lender to Borrower (Collateral Pool Borrower
     ) in accordance with the terms of the Master
Agreement. This Note is entitled to the benefit and security of the Loan
Documents provided for in the Master Agreement, to which reference is hereby
made for a statement of all of the terms and conditions under which the
Variable Loan evidenced hereby is made. All references to Loan Documents and
Security Documents herein shall be with respect to Collateral Pool           
(the “Collateral Pool”) as
further identified in the Master Agreement.


 


Section
1.              Defined Terms. In
addition to defined terms found elsewhere in this Note, as used in this Note,
the following definitions shall apply:


 


Adjustable
Rate. The initial Adjustable Rate shall be
                 %
per annum until the first Rate Change Date. From and after each Rate Change
Date until the next Rate Change Date, the Adjustable Rate shall be the sum of
(i) the Current Index, and (ii) the Margin, which sum is then rounded to three
decimal places, subject to the limitations that the Adjustable Rate shall not
be less than the Margin.


 


Amortization
Period:  N/A.


 


Business
Day:  Any day
other than a Saturday, Sunday or any other day on which Lender is not open for
business.


 


C-1

















 


Current
Index:  The
published Index that is effective on the Business Day immediately preceding the
applicable Rate Change Date.


 


Default
Rate:  A rate
equal to the lesser of four (4) percentage points above the then-applicable
Adjustable Rate or the maximum interest rate which may be collected from
Borrower under applicable law.


 


Disbursement
Date:  The date
of disbursement of Loan proceeds hereunder.


 


First
Payment Date:  The first day of                           ,
            . [For example, if the Note date is January 1, then the
First Payment Date will be February 1. If the Note date is any day other than
January 1, then the First Payment Date will be March 1.]


 


Indebtedness:  The principal of,
interest on, or any other amounts due at any time under, this Note, the
Security Instrument or any other Loan Document, including prepayment premiums,
late charges, default interest, and advances to protect the security of the
Security Instrument under Section 12 of the Security Instrument.


 


Index:  The British Bankers Association fixing of the
London Inter-Bank Offered Rate for 1-month U.S. Dollar-denominated deposits as
reported by Telerate through electronic transmission. If the Index is no longer
available, or is no longer posted through electronic transmission, Lender will
choose a new index that is based upon comparable information and provide notice
thereof to Borrower.


 


Initial
Adjustable Rate: 
              %
per annum until the first Rate Change Date.


 


Lender:  The holder of this
Note.


 


Loan:  The loan evidenced by this Note.


 


Loan
Year:  The
period beginning on the Disbursement Date and ending on the day before the
twelfth Rate Change Date and each successive twelve- (12) month period
thereafter.


 


Margin:
                  
%, which amount includes the Variable Loan Fee.


 


Maturity
Date:  The first
day of November, 2009, or any earlier date on which the unpaid principal
balance of this Note becomes due and payable by acceleration or otherwise,
unless otherwise extended pursuant to Section 1.05 of the Master Agreement.


 


Payment
Change Date: 
The first day of the month following each Rate Change Date until this
Note is repaid in full.


 


C-2

















 


Prepayment
Lockout Period: 
None.


 


Prepayment
Premium Term: 
The period beginning on the Disbursement Date and ending on the last
calendar day of October, 2008.


 


Rate
Change Date: 
The First Payment Date and the first day of each month thereafter until
this Note is repaid in full.


 


Security
Instrument: 
Individually and collectively, various multifamily mortgages, deeds to
secure debt or deeds of trust described in the Master Agreement comprising
Collateral Pool       .


 


Servicing
Payment Date: 
Two (2) Business Days prior to the date each monthly payment is due
under this Note.


 


Variable
Loan Fee:  Has
the meaning set forth in the Master Agreement.


 


Event of
Default and other capitalized terms used but not defined in this Note shall
have the meanings given to such terms in the Master Agreement or, if not
defined in the Master Agreement, as defined in the Security Instrument.


 


Section
2.              Address for Payment. All
payments due under this Note shall be payable at c/o Lehman Brothers Holdings
Inc., 399 Park Avenue, New York, New York 10022, or such other place as may be
designated by written notice to Borrower from or on behalf of Lender.


 


Section
3.              Payment of Principal and
Interest. This Note will accrue interest on the
outstanding principal balance at the Adjustable Rate. Principal and interest
shall be paid as follows:


 


(a)           Short
Month Interest. If disbursement of principal is made by Lender to
Borrower on any day other than the first day of the month, interest for the
period beginning on the Disbursement Date and ending on and including the last
day of the month in which such disbursement is made shall be payable
simultaneously with the execution of this Note.


 


(b)           Interest
Accrual. Interest shall accrue on the unpaid principal balance of
this Note at the Adjustable Rate. The Adjustable Rate shall change on each Rate
Change Date until the Loan is repaid in full. Interest under this Note shall be
computed on the basis of a 360-day year. The amount of each monthly payment
made by Borrower pursuant to Paragraph 3(d) below that is allocated to interest
will be based on the actual number of calendar days during such month and shall
be calculated by multiplying the unpaid principal balance of this Note by the
applicable Adjustable Rate, dividing the product by 360 and multiplying the
quotient by the actual number of days elapsed during the month. Borrower
understands that the amount allocated to interest for each month will vary
depending on the actual number of calendar days during such month.


 


C-3
















(c)           Adjustable
Rate.  The Initial Adjustable
Rate shall be in effect until the first Rate Change Date.  From and after each Rate Change Date until
the next Rate Change Date, the Adjustable Rate shall be the sum of (i) the
Current Index, and (ii) the Margin, which sum is then rounded to three decimal
places, subject to the limitations that the Adjustable Rate shall not be less
than the Margin.  Accrued interest on
this Note shall be paid in arrears.


 


(d)           Monthly
Payments.  Borrower
acknowledges and agrees to pay all payments required each month as set forth
below (the “Required Monthly Payments”)
due under this Note to the Lender on the Servicing Payment Date even though
such Required Monthly Payments are due on the first day of every month.


 


x                                  Interest Only Loan.  Consecutive monthly installments of interest
only, each in the amount of the Required Monthly Payment, shall be payable on
the First Payment Date and on the first day of each month thereafter until the
entire unpaid principal balance evidenced by this Note is fully paid.  The entire unpaid principal balance and
accrued but unpaid interest, if not sooner paid, shall be due and payable on
the Maturity Date.  The initial Required Monthly
Payment shall be                                                                  
Dollars  (US $                                               ).  Thereafter, to the extent that the Adjustable
Rate has changed, the Required Monthly Payment shall change on each Payment
Change Date based on the then-applicable Adjustable Rate.  The amount of the initial and any changed
Required Monthly Payment shall be calculated utilizing the interest accrual
method stated in Paragraph 3(b) above.


 


(e)           [Intentionally deleted.]


 


(f)            Notice
of Interest Rate Change. 
Before each Payment Change Date, Lender shall re-calculate the
Adjustable Rate and shall notify Borrower (in the manner specified in the
Security Instrument for giving notices) of any change in the Adjustable Rate
and the Required Monthly Payment.


 


(g)           Correction
to Required Monthly Payment. 
If Lender at any time determines, in its sole but reasonable discretion,
that it has miscalculated the amount of the Required Monthly Payment (whether
because of a miscalculation of the Adjustable Rate or otherwise), then Lender
shall give notice to Borrower of the corrected amount of the Required Monthly
Payment (and the corrected Adjustable Rate, if applicable) and (i) if the
corrected amount of the Required Monthly Payment represents an increase, then
Borrower shall, within thirty (30) calendar days thereafter, pay to Lender any
sums that Borrower would have otherwise been obligated under this Note to pay
to Lender had the amount of the Required Monthly Payment not been
miscalculated, or (ii) if the corrected amount of the Required Monthly Payment
represents a decrease thereof and Borrower is not otherwise in breach or
default under any of the terms and provisions of the Note, the Security
Instrument or any other loan document evidencing or securing the Note, then
Borrower shall within thirty (30) calendar days thereafter


 


C-4

















 


be paid the
sums that Borrower would not have otherwise been obligated to pay to Lender had
the amount of the Required Monthly Payment not been miscalculated.


 


(h)           Payments
Before Due Date.  Any
regularly scheduled monthly installment of principal and interest that is
received by Lender before the date it is due shall be deemed to have been
received on the due date solely for the purpose of calculating interest due.


 


(i)            Accrued
Interest.  Any accrued
interest remaining past due for thirty (30) days or more shall be added to and
become part of the unpaid principal balance and shall bear interest at the rate
or rates specified in this Note.  Any
reference herein to “accrued interest” shall refer to accrued interest which
has not become part of the unpaid principal balance.  Any amount added to principal pursuant to the
Loan Documents shall bear interest at the applicable rate or rates specified in
this Note and shall be payable with such interest upon demand by Lender and
absent such demand, as provided in this Note for the payment of principal and
interest.


 


Section
4.              Application of
Payments.  If at
any time Lender receives, from Borrower or otherwise, any amount applicable to
the Indebtedness which is less than all amounts due and payable at such time,
Lender may apply that payment to amounts then due and payable in any manner and
in any order determined by Lender, in Lender’s discretion.  Borrower agrees that neither Lender’s
acceptance of a payment from Borrower in an amount that is less than all
amounts then due and payable nor Lender’s application of such payment shall
constitute or be deemed to constitute either a waiver of the unpaid amounts or
an accord and satisfaction.


 


Section
5.              Security.  The Indebtedness is
secured, among other things, by the Security Instrument, and reference is made
to the Security Instrument for other rights of Lender concerning the collateral
for the Indebtedness.


 


Section
6.              Acceleration.  If an Event of
Default has occurred and is continuing, the entire unpaid principal balance,
any accrued interest, the prepayment premium payable under Section 10,
if any, and all other amounts payable under this Note and any other Loan
Document shall at once become due and payable, at the option of Lender, without
any prior notice to Borrower.  Lender may
exercise this option to accelerate regardless of any prior forbearance.


 


Section
7.              Late Charge.  MONTHLY PAYMENTS UNDER THIS NOTE ARE DUE
ON THE FIRST DAY OF EACH AND EVERY MONTH UNTIL THIS NOTE IS PAID IN FULL.  BORROWER HEREBY AGREES THAT SUCH PAYMENTS
SHALL BE MADE TO THE LENDER ON THE SERVICING PAYMENT DATE.  THERE IS NO “GRACE”
PERIOD FOR ANY MONTHLY INSTALLMENTS DUE HEREUNDER. 
Subject to the provisions of Section 9.01(b) of the Master Agreement, if
any monthly installment due hereunder is not received by Lender on or before
the first day of each month or if any other amount payable under this Note or
under the Security Instrument or any other Loan Document is not received by
Lender before or on the date such amount is due, counting from and including
the date such amount is due, Borrower shall pay to Lender, immediately and
without demand by Lender, a late charge equal to five percent (5%) of such monthly
installment or other amount due (provided that in connection with the payment
in full on the Maturity Date, if such payment is not received by Lender on or
before the fifth (5th) day after the Maturity Date, counting from
and


 


C-5

















 


including the
Maturity Date, Borrower shall pay to Lender, immediately and without demand by
Lender, a late charge equal to one percent (1%) of such payment or other amount
due).  Borrower acknowledges that its
failure to make timely payments will cause Lender to incur additional expenses
in servicing and processing the Loan and that it is extremely difficult and
impractical to determine those additional expenses.  Borrower agrees that the late charge payable
pursuant to this Paragraph represents a fair and reasonable estimate, taking
into account all circumstances existing on the date of this Note, of the
additional expenses Lender will incur by reason of such late payment.  The late charge is payable in addition to,
and not in lieu of, any interest payable at the Default Rate pursuant to Section
8.


 


Section
8.              Default Rate.  So long as any
monthly installment or any other payment due under this Note remains past due
for thirty (30) days or more, interest under this Note shall accrue on the
unpaid principal balance from the earlier of the due date of the first unpaid
monthly installment or other payment due, as applicable, at the Default
Rate.  If the unpaid principal balance
and all accrued interest are not paid in full on the Maturity Date, the unpaid
principal balance and all accrued interest shall bear interest from the
Maturity Date at the Default Rate. 
Borrower also acknowledges that its failure to make timely payments will
cause Lender to incur additional expenses in servicing and processing the Loan,
that, during the time that any monthly installment or payment under this Note
is delinquent for more than thirty (30) days, Lender will incur additional
costs and expenses arising from its loss of the use of the money due and from
the adverse impact on Lender’s ability to meet its other obligations and to
take advantage of other investment opportunities, and that it is extremely
difficult and impractical to determine those additional costs and expenses.  Borrower also acknowledges that, during the
time that any monthly installment or other payment due under this Note is
delinquent for more than thirty (30) days, Lender’s risk of nonpayment of this
Note will be materially increased and Lender is entitled to be compensated for
such increased risk.  Borrower agrees
that the increase in the rate of interest payable under this Note to the
Default Rate represents a fair and reasonable estimate, taking into account all
circumstances existing on the date of this Note, of the additional costs and
expenses Lender will incur by reason of the Borrower’s delinquent payment and
the additional compensation Lender is entitled to receive for the increased
risks of nonpayment associated with a delinquent Loan.


 


Section
9.              Limits on Personal
Liability; Joint and Several Obligation.  The provisions of Article 12 of the
Master Agreement (entitled “Limits on Personal Liability”) are hereby
incorporated into this Note by this reference to the fullest extent as if the
text of such Sections were set forth in its entirety herein.


 


Section
10.            Lockout; Voluntary and
Involuntary Prepayments.


 


(a)           Borrower may voluntarily prepay all
(or a portion) of the indebtedness evidenced hereby subject to the prepayment
provisions and any Prepayment Lockout Period described in Schedule A.


 


(b)           A prepayment premium shall be payable
in connection with any prepayment made under this Note as provided below:


 


C-6

















 


(i)            At any time after the expiration of
the Prepayment Lockout Period, Borrower may voluntarily prepay all (or a
portion) of the unpaid principal balance of this Note only on the last calendar
day of a calendar month (the “Last Day of
the Month”) and only if Borrower has complied with all of the
following:


 


(1)           Borrower must give
Lender at least thirty (30) days (if given via U.S. Postal Service) or twenty
(20) days (if given via facsimile, email or overnight courier), but not more
than sixty (60) days, prior written notice of Borrower’s intention to make a
prepayment (the “Prepayment Notice”).  The Prepayment Notice shall be given in
writing (via facsimile, email, U.S. Postal Service or overnight courier) and
addressed to Lender.  The Prepayment
Notice shall include, at a minimum, the Business Day upon which Borrower intends
to make the prepayment (the “Intended
Prepayment Date”).


 


(2)           Borrower
acknowledges that the Lender is not required to accept any voluntary prepayment
of this Note on any day other than the Last Day of the Month even if Borrower
has given a Prepayment Notice with an Intended Prepayment Date other than the
Last Day of the Month or if the Last Day of the Month is not a Business
Day.  Therefore, even if Lender accepts a
voluntary prepayment on any day other than the Last Day of the Month, for all
purposes (including the accrual of interest and the calculation of the
prepayment premium), any prepayment received by Lender on any day other than
the Last Day of the Month shall be deemed to have been received by Lender on
the Last Day of the Month and any prepayment calculation will include interest
to and including the Last Day of the Month in which such prepayment
occurs.  If the Last Day of the Month is
not a Business Day, then the Borrower must make the payment on the Business Day
immediately preceding the Last Day of the Month.


 


(3)           Any prepayment shall
be made by paying (A) the amount of principal being prepaid, (B) all accrued
interest (calculated to the Last Day of the Month), (C) all other sums due
Lender at the time of such prepayment, and (D) the prepayment premium
calculated pursuant to Schedule A.


 


(4)           If, for any reason,
Borrower fails to prepay this Note within five (5) Business Days after the
Intended Prepayment Date, then Lender shall have the right, but not the
obligation, to recalculate the prepayment premium pursuant to Schedule A
based upon the date that Borrower actually prepays this Note.  Notwithstanding the foregoing, if the delayed
prepayment occurs in a month other than the month stated in the original
Prepayment Notice, then Lender shall (a) have the right, but not the
obligation, to recalculate the prepayment premium pursuant to Schedule A based
upon the date that Borrower actually prepays this Note and (b) recalculate the
amount of interest payable.  In either
instance, for purposes of recalculation, such new prepayment date shall be
deemed the “Intended Prepayment Date.”


 


(ii)           Upon Lender’s exercise of any right
of acceleration under this Note, Borrower shall pay to Lender, in addition to
the entire unpaid principal balance of this Note outstanding at the time of the
acceleration, (A) all accrued interest and all other sums due


 


C-7

















 


Lender under
this Note and the other Loan Documents, and (B) the prepayment premium
calculated pursuant to Schedule A.


 


(iii)          Any application by Lender of any
collateral or other security to the repayment of any portion of the unpaid
principal balance of this Note prior to the Maturity Date and in the absence of
acceleration shall be deemed to be a partial prepayment by Borrower, requiring
the payment to Lender by Borrower of a prepayment premium.


 


(c)           Notwithstanding the provisions of Section
10(b), no prepayment premium shall be payable (1) with respect to any
prepayment occurring as a result of the application of any insurance proceeds
or condemnation award under the Security Instrument, or (2) as provided in
subparagraph (c) of Schedule A.


 


(d)           Schedule A is hereby incorporated by
reference into this Note.


 


(e)           Any permitted or required prepayment
of less than the entire unpaid principal balance of this Note shall not extend
or postpone the due date of any subsequent monthly installments, provided the
amount of each monthly installment shall be recomputed to reflect such
prepayment of the Indebtedness.


 


(f)            Borrower recognizes that any
prepayment of the unpaid principal balance of this Note, whether voluntary or
involuntary or resulting from a default by Borrower, will result in Lender’s
incurring loss, including reinvestment loss, additional expense and frustration
or impairment of Lender’s ability to meet its commitments to third
parties.  Borrower agrees to pay to
Lender upon demand damages for the detriment caused by any prepayment, and
agrees that it is extremely difficult and impractical to ascertain the extent
of such damages.  Borrower therefore
acknowledges and agrees that the formula for calculating prepayment premiums
set forth on Schedule A represents all the damages Lender will incur because of
a prepayment.


 


(g)           Borrower further acknowledges that
the prepayment premium provisions of this Note are a material part of the
consideration for the Loan evidenced by this Note, and acknowledges that the
terms of this Note are in other respects more favorable to Borrower as a result
of the Borrower’s voluntary agreement to the prepayment premium provisions.


 


Section
11.            Costs and Expenses.  Borrower shall pay
on demand all reasonable expenses and costs, including reasonable fees and
out-of-pocket expenses of attorneys and expert witnesses and costs of
investigation, actually incurred by Lender as a result of any default under
this Note or in connection with efforts to collect any amount due under this
Note, or to enforce the provisions of any of the other Loan Documents,
including those incurred in post-judgment collection efforts and in any
bankruptcy proceeding (including any action for relief from the automatic stay
of any bankruptcy proceeding) or judicial or non-judicial foreclosure
proceeding.


 


Section
12.            Forbearance.  Any forbearance by Lender in exercising any
right or remedy under this Note, the Security Instrument, or any other Loan
Document or otherwise afforded by applicable law, shall not be a waiver of or
preclude the exercise of that or any other right or remedy.  The acceptance by Lender of any payment after
the due date of such payment,


 


C-8

















 


or in an
amount which is less than the required payment, shall not be a waiver of
Lender’s right to require prompt payment when due of all other payments or to
exercise any right or remedy with respect to any failure to make prompt
payment.  Enforcement by Lender of any
security for Borrower’s obligations under this Note shall not constitute an
election by Lender of remedies so as to preclude the exercise of any other
right or remedy available to Lender.


 


Section
13.            Waivers.  Except as expressly
provided in this Note or the Master Agreement, presentment, demand, notice of
dishonor, protest, notice of acceleration, notice of intent to demand or
accelerate payment or maturity, presentment for payment, notice of nonpayment,
grace, and diligence in collecting the Indebtedness are waived by Borrower and
all endorsers and guarantors of this Note and all other third party obligors.


 


Section
14.            Loan Charges.  Borrower agrees to pay an effective rate of
interest equal to the sum of the interest rate provided for in this Note and
any additional rate of interest resulting from any other charges of interest or
in the nature of interest paid or to be paid in connection with the Loan
evidenced by this Note and any other fees or amounts to be paid by Borrower
pursuant to any of the other Loan Documents. 
Neither this Note nor any of the other Loan Documents shall be construed
to create a contract for the use, forbearance or detention of money requiring
payment of interest at a rate greater than the maximum interest rate permitted
to be charged under applicable law.  If
any applicable law limiting the amount of interest or other charges permitted
to be collected from Borrower in connection with the Loan is interpreted so
that any interest or other charge provided for in any Loan Document, whether
considered separately or together with other charges provided for in any other
Loan Document, violates that law, and Borrower is entitled to the benefit of
that law, that interest or charge is hereby reduced to the extent necessary to
eliminate that violation.  The amounts,
if any, previously paid to Lender in excess of the permitted amounts shall be
applied by Lender to reduce the unpaid principal balance of this Note.  For the purpose of determining whether any
applicable law limiting the amount of interest or other charges permitted to be
collected from Borrower has been violated, all Indebtedness that constitutes
interest, as well as all other charges made in connection with the Indebtedness
that constitute interest, shall be deemed to be allocated and spread ratably
over the stated term of the Note.  Unless
otherwise required by applicable law, such allocation and spreading shall be
effected in such a manner that the rate of interest so computed is uniform
throughout the stated term of the Note.


 


Section
15.            Commercial Purpose.  Borrower represents
that the Indebtedness is being incurred by Borrower solely for the purpose of
carrying on a business or commercial enterprise, and not for personal, family
or household purposes.


 


Section
16.            Counting of Days.  Except where
otherwise specifically provided, any reference in this Note to a period of
“days” means calendar days, not Business Days.


 


Section
17.            Choice of Law; Consent to
Jurisdiction; Waiver of Jury Trial.  The
provisions of Section 13.06 of the Master Agreement (entitled “Choice
of Law; Consent to Jurisdiction; Waiver of Jury Trial”) are hereby
incorporated into this Note by this reference to the fullest extent as if the
text of such Section were set forth in its entirety herein.


 


C-9

















 


Section
18.            Captions.  The captions of the
paragraphs of this Note are for convenience only and shall be disregarded in
construing this Note.


 


Section
19.            Notices.  All notices, demands and other communications
required or permitted to be given by Lender to Borrower pursuant to this Note
shall be given in accordance with Section 13.08 of the Master Agreement.


 


Section
20.            Security for this Note.   The indebtedness evidenced by this Note is
secured by other Security Documents executed by Collateral Pool Borrower.  Reference is made hereby to the Master
Agreement and the Security Documents for additional rights and remedies of
Lender relating to the Indebtedness evidenced by this Note.  Each Security Document shall be released in
accordance with the provisions of the Master Agreement and the Security
Documents.


 


Section
21.            Loan May Not Be Reborrowed.  Borrower may not re-borrow any amounts under
this Note which it has previously borrowed and repaid under this Note


 


Section
22.            Variable Loan.  This Note is issued to evidence a Variable
Loan made in accordance with the terms of the Master Agreement.


 


Section
23.            Cross-Default with Master
Agreement.   The
occurrence and continuance of an Event of Default with respect to the
Collateral Pool under the Master Agreement shall constitute an “Event of
Default” under this Note, and, accordingly, upon the occurrence of an Event of
Default under the Master Agreement with respect to the Collateral Pool, the
entire principal amount outstanding hereunder and accrued interest thereon
shall at once become due and payable, at the option of the holder hereof.


 


 


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C-10

















 


ATTACHED
SCHEDULES.  The following Schedules are
attached to this Note:


 


x           Schedule A Prepayment Premium (required)


 


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C-11

















 


IN WITNESS
WHEREOF, Borrower has signed and delivered this Note under seal or has caused
this Note to be signed and delivered under seal by its duly authorized
representative (which authorized representative shall have no personal
liability hereunder).  Borrower intends
that this Note shall be deemed to be signed and delivered as a sealed
instrument.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  [ADD EACH BORROWER FOR SUCH

  
	
   

  	
  COLLATERAL POOL]

  



 


S-1

















 


ALLONGE TO NOTE


 


 


This Allonge
to Note is attached to and forms a part of the Fixed Loan Note (Collateral Pool
     ) dated October 5, 2007, in the original
principal amount of $                                     
from Borrower to BANK OF AMERICA, N.A., a national banking association,
BARCLAYS CAPITAL REAL ESTATE INC., and LEHMAN BROTHERS HOLDINGS INC., a
Delaware corporation.


 


Pay
to the order of                                                                           ,
without recourse.


 


 


	
  Dated as of
  October 5, 2007

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

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

  
	
   

  	
  association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BARCLAYS CAPITAL REAL ESTATE INC., a

  
	
   

  	
  Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
					



 


S-2

















 


ALLONGE TO NOTE


 


 


This Allonge
to Note is attached to and forms a part of the Fixed Loan Note (Collateral Pool
     ) dated October 5, 2007, in the original principal
amount of
$                             
from Borrower to BANK OF AMERICA, N.A., a national banking association,
BARCLAYS CAPITAL REAL ESTATE INC., a Delaware corporation, and LEHMAN BROTHERS
HOLDINGS INC., a Delaware corporation.


 


Pay
to the order of                                                                 ,
without recourse.


 


 


	
  Dated as of
  October 5, 2007

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

  	
  LEHMAN BROTHERS HOLDINGS INC., a

  
	
   

  	
  Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


S-3

















 


SCHEDULE A


 


Any prepayment
premium payable under Section 10 of this Note shall be computed as
follows:


 


(a)                                  If
Borrower voluntarily prepays this Note, Lender accelerates the unpaid principal
balance of this Note, or the Lender applies collateral held by Lender to the
repayment of any portion of the unpaid principal balance of this Note as
permitted in Section 10(b) of the Note (if any), the prepayment premium
shall be equal to the following percentage of the amount of principal being
prepaid at the time of such prepayment, acceleration or application:


 


	
  First Loan Year

  	
   

  	
  10 basis
  points (0.10%)

  



 


(b)                                 For
the purposes of this Note, a “Loan Year”
shall have the meaning ascribed to it in this Note.


 


(c)                                  Notwithstanding
the provisions of Section 10(b) of this Note or the foregoing, no
prepayment premium shall be payable with respect to any prepayment made on or
after the Prepayment Premium Term.


 


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A-1

















 


[Initial Page to Schedule A to Variable Loan Note]


 


 


	
   

  	
   

  	
   

  
	
   

  	
  INITIAL(S)