Exhibit 10.144


MERS MIN:
8000101-0000004464-3


LOAN AGREEMENT


Dated as of December 21,
2006


Between


MB ST.
LOUIS CHESTNUT, L.L.C.,

as Borrower


and


BEAR
STEARNS COMMERCIAL MORTGAGE, INC.,

as Lender
















TABLE OF CONTENTS


	
  

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I DEFINITIONS;
  PRINCIPLES OF CONSTRUCTION

  	
   

  	
  1

  
	
  Section 1.1        Definitions

  	
   

  	
  1

  
	
  Section 1.2        Principles
  of Construction

  	
   

  	
  21

  
	
  ARTICLE II GENERAL
  TERMS

  	
   

  	
   

  	
   

  	
  21

  
	
  Section 2.1        Loan
  Commitment; Disbursement to Borrower

  	
   

  	
  21

  
	
  Section 2.2        Interest;
  Loan Payments; Late Payment Charge

  	
   

  	
  21

  
	
  Section 2.3        Prepayments

  	
   

  	
  23

  
	
  Section 2.4        Intentionally
  Omitted

  	
   

  	
  25

  
	
  Section 2.5        Release
  of Property

  	
   

  	
  25

  
	
  Section 2.6        Manner
  of Making Payments

  	
   

  	
  25

  
	
  ARTICLE III CONDITIONS
  PRECEDENT

  	
   

  	
   

  	
   

  	
  26

  
	
  Section 3.1        Conditions
  Precedent to Closing

  	
   

  	
  26

  
	
  ARTICLE IV REPRESENTATIONS
  AND WARRANTIES

  	
   

  	
   

  	
   

  	
  30

  
	
  Section 4.1        Borrower
  Representations

  	
   

  	
  30

  
	
  Section 4.2        Survival
  of Representations

  	
   

  	
  37

  
	
  ARTICLE  V  BORROWER COVENANTS

  	
   

  	
  38

  
	
  Section 5.1        Affirmative
  Covenants

  	
   

  	
  38

  
	
  Section 5.2        Negative
  Covenants

  	
   

  	
  49

  
	
  ARTICLE VI INSURANCE;
  CASUALTY; CONDEMNATION

  	
   

  	
  54

  
	
  Section 6.1        Insurance

  	
   

  	
  54

  
	
  Section 6.2        Casualty

  	
   

  	
  58

  
	
  Section 6.3        Condemnation

  	
   

  	
  58

  
	
  Section 6.4        Restoration

  	
   

  	
  58

  
	
  ARTICLE VII RESERVE
  FUNDS

  	
   

  	
  63

  
	
  Section 7.1        Required
  Repair Funds

  	
   

  	
  63

  
	
  Section 7.2        Tax
  and Insurance Escrow Fund

  	
   

  	
  64

  
	
  Section 7.3        Replacements
  and Replacement Reserve

  	
   

  	
  65

  
	
  Section 7.4        Intentionally
  Omitted

  	
   

  	
  70

  
	
  Section 7.5        Intentionally
  Omitted

  	
   

  	
  70

  
	
  Section 7.6        Intentionally
  Omitted

  	
   

  	
  70

  
	
  Section 7.7        Reserve
  Funds, Generally

  	
   

  	
  70

  
	
  ARTICLE VIII DEFAULTS

  	
   

  	
  71

  
	
  Section 8.1        Event
  of Default

  	
   

  	
  71

  
	
  Section 8.2        Remedies

  	
   

  	
  73

  
	
  Section 8.3        Remedies
  Cumulative; Waivers

  	
   

  	
  74

  
	
  ARTICLE IX SPECIAL
  PROVISIONS

  	
   

  	
  74

  
	
  Section 9.1        Sale
  of Notes and Securitization

  	
   

  	
  74

  
	
  Section 9.2        Securitization

  	
   

  	
  75

  
	
  Section 9.3        Rating
  Surveillance

  	
   

  	
  76

  
	
  Section 9.4        Exculpation

  	
   

  	
  76

  
	
  Section 9.5        Termination
  of Manager

  	
   

  	
  78

  



 



 i
 








 


	
  Section 9.6        Servicer

  	
   

  	
  78

  
	
  Section 9.7        Splitting
  the Loan

  	
   

  	
  79

  
	
  ARTICLE X MISCELLANEOUS

  	
   

  	
  79

  
	
  Section 10.1       Survival

  	
   

  	
  79

  
	
  Section 10.2       Lender’s
  Discretion

  	
   

  	
  80

  
	
  Section 10.3       Governing
  Law

  	
   

  	
  80

  
	
  Section 10.4       Modification,
  Waiver in Writing

  	
   

  	
  80

  
	
  Section 10.5       Delay
  Not a Waiver

  	
   

  	
  80

  
	
  Section 10.6       Notices

  	
   

  	
  80

  
	
  Section 10.7       Trial
  by Jury

  	
   

  	
  81

  
	
  Section 10.8       Headings

  	
   

  	
  82

  
	
  Section 10.9       Severability

  	
   

  	
  82

  
	
  Section 10.10     Preferences

  	
   

  	
  82

  
	
  Section 10.11     Waiver
  of Notice

  	
   

  	
  82

  
	
  Section 10.12     Remedies
  of Borrower

  	
   

  	
  82

  
	
  Section 10.13     Expenses;
  Indemnity

  	
   

  	
  83

  
	
  Section 10.14     Schedules
  Incorporated

  	
   

  	
  84

  
	
  Section 10.15     Offsets,
  Counterclaims and Defenses

  	
   

  	
  84

  
	
  Section 10.16     No
  Joint Venture or Partnership; No Third Party Beneficiaries

  	
   

  	
  84

  
	
  Section 10.17     Publicity

  	
   

  	
  84

  
	
  Section 10.18     Waiver
  of Marshalling of Assets

  	
   

  	
  84

  
	
  Section 10.19     Waiver
  of Counterclaim

  	
   

  	
  85

  
	
  Section 10.20     Conflict;
  Construction of Documents; Reliance

  	
   

  	
  85

  
	
  Section 10.21     Brokers
  and Financial Advisors

  	
   

  	
  85

  
	
  Section 10.22     Prior
  Agreements

  	
   

  	
  85

  
	
  Section 10.23     Transfer
  of Loan

  	
   

  	
  86

  
	
  Section 10.24     Certain
  Additional Rights of Lender (VCOC)

  	
   

  	
  86

  
	
  Section 10.25     Joint
  and Several Liability

  	
   

  	
  86

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULES

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule I

  	
  -

  	
     Tenant Direction Letters

  	
   

  	
   

  
	
  Schedule II

  	
  -

  	
     Other Leases

  	
   

  	
   

  
	
  Schedule III

  	
  -

  	
     Required Repairs

  	
   

  	
   

  



 



 ii















LOAN AGREEMENT


THIS
LOAN AGREEMENT, dated as of this 2l day of December, 2006 (as
amended, restated, replaced, supplemented or otherwise modified from time to
time, this “Agreement”),
between BEAR STEARNS COMMERCIAL MORTGAGE,
INC., a New York corporation, having an address at 383 Madison
Avenue, New York, New York 10179 (“Lender”) and MB
ST. LOUIS CHESTNUT, L.L.C., a Delaware limited liability company,
having an address at 2901 Butterfield Road, Oak Brook, Illinois 60523 (“Borrower”)


W I T N E S S E T H:


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


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


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


ARTICLE I 

DEFINITIONS; PRINCIPLES OF CONSTRUCTION


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


“Accrued
Interest” shall have the meaning set forth in Section
2.2.4 hereof


“Additional
Documentation” shall have the meaning set forth in
Section 9.7 hereof.


“Additional
Insolvency Opinion” shall mean any subsequent Insolvency
Opinion.


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


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


“Anchor
Lease Guarantor” shall mean AT&T Incorporated, a
Delaware corporation.


“Anchor
Tenant” shall mean AT&T Services, Inc., a Delaware
corporation, pursuant to the Anchor Tenant Lease.










 



“Anchor
Tenant Lease” shall mean that certain Lease Agreement,
dated December __, 2006 by and between Borrower, as landlord, and Anchor
Tenant, as tenant, as the same may be amended, restated, renewed, substituted
or replaced (but only to the extent permitted under this Agreement).


“Annual
Budget” shall mean the operating budget, including all
planned capital expenditures, for the Property prepared by Borrower for the
applicable Fiscal Year or other period.


“Anticipated
Repayment Date” shall mean January 1, 2017.


“Applicable Net Worth
Requirement” shall mean, (i) in the case of an entity
that is a joint venturer with Minto Builders (Florida), Inc., or which acquires
an ownership interest in Borrower, wherein Minto Builders (Florida), Inc.
retains at least a 20% interest in Borrower or the Property, $                ,
(ii) in the case of an entity that is a joint venturer with Minto Builders
(Florida), Inc., or which acquires an ownership interest in Borrower, wherein
Minto Builders (Florida), Inc. retains at least a 10% interest, but less than a
20% interest, in Borrower or the Property, $                ,
(iii) in the case of an entity that is a joint venturer with Minto Builders
(Florida), Inc., or which acquires an ownership interest in Borrower, wherein
Minto Builders (Florida), Inc. retains at least a 1% interest, but less than a
10% interest, in Borrower or the Property, $                ,
and (iv) in any other case, $                .


“Assignment
of Leases” shall mean, with respect to the Property, that
certain first priority Assignment of Leases and Rents, dated as of the Closing
Date, from Borrower, as assignor, to Lender, as assignee, assigning to Lender
all of Borrower’s interest in and to the Leases and Rents of the Property as
security for the Loan, as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time.


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


“Assumption
Lockout Period” shall mean the period commencing upon
notice from Lender to Borrower at a Securitization shall occur within thirty
(30) days, and ending thirty (30) days after Securitization.


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


“Basic
Carrying Costs” shall mean, with respect to the Property,
the sum of the following costs associated with the Property for the relevant
Fiscal Year or payment period: (i) Taxes and (ii) Insurance Premiums.


“Borrower”
shall mean MB ST. LOUIS CHESTNUT, L.L.C., together with its
permitted successors and assigns.



 2
 






 



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


“Capital
Expenditures” shall mean, for any period, the amount
expended for items capitalized under accounting principles reasonably
acceptable to Lender, consistently applied (including expenditures for building
improvements or major repairs, leasing commissions and tenant improvements).


“Cash
Expenses” shall mean, for any period, the operating
expenses for the operation of the Property as set forth in an approved Annual
Budget to the extent that such expenses are actually incurred by Borrower minus
any payments into the Tax and Insurance Escrow Fund.


“Cash
Management Termination Event” shall mean (a) if the Cash
Management Trigger relates solely to clause (i) of the definition thereof, the
Event of Default shall have been cured, and Lender shall have accepted such
cure, provided that Lender has not otherwise accelerated the Loan, moved for a
receiver or commenced foreclosure proceedings; (b) if the Cash Management
Trigger relates solely to the bankruptcy or insolvency of the Manager, the
dismissal of such bankruptcy without adverse consequences to the Loan or the
Property, or the replacement of the Manager with a Qualifying Manager satisfactory
to Lender in Lender’s reasonable discretion pursuant to a property management
agreement satisfactory to Lender in Lender’s reasonable discretion, no later
than thirty (30) days after the date on which Manager filed for bankruptcy or
on which insolvency proceeding were initiated; (c) if the Cash Management
Trigger relates solely to the bankruptcy or insolvency of the Anchor Tenant,
the releasing of the entire Property to one or more replacement tenants
satisfactory to Lender in Lender’s reasonable discretion pursuant to one or
more replacement leases, each at an average rental rate not less than the
greater of market rate and the rate paid by Anchor Tenant under the Anchor
Tenant Lease at the time of such Cash Management Trigger, and Lender shall have
received an estoppel letter from such replacement tenant confirming, among
other things, that such tenant has taken occupancy of its demised premises and
commenced payment of rent; (d) if the Cash Management Trigger relates solely to
the bankruptcy or insolvency of the Anchor Lease Guarantor, the Anchor Lease
Guarantor is replaced with a lease guarantor acceptable to Lender in its sole
discretion within thirty (30) days after notice of such Cash Management
Trigger; (e) if the Cash Management Trigger relates solely to the credit rating
of Anchor Lease Guarantor falling below investment grade, the restoration and
maintaining of an investment grade rating by each Rating Agency for twelve (12)
consecutive calendar months; or (f), if the Cash Management Trigger relates
solely to clause (iv) of the definition thereof, the releasing of the entire
Property to one or more replacement tenants satisfactory to Lender in Lender’s
reasonable discretion pursuant to one or more replacement leases, each at an
average rental rate not less than the greater of market rate and the rate paid
by Anchor Tenant under the Anchor Tenant Lease at the time of such Cash
Management Trigger, and Lender shall have received an estoppel letter from such
replacement tenant confirming, among other things, that such tenant has taken
occupancy of its demised premises and commenced payment of rent; provided,
however, that Borrower shall not have the right to cure a Cash Management
Trigger that is caused by the bankruptcy or insolvency of Borrower or that is
caused by failure to repay the Debt on or before the Anticipated Repayment
Date, and further provided, however, there shall not be more than two
(2) Cash Management Termination Events during the term of the Loan.



 3
 






 



“Cash
Management Trigger” shall mean (i) the existence of an
Event of Default, (ii) the bankruptcy or insolvency of Borrower, Manager,
Anchor Tenant or Anchor Lease Guarantor, (iii) Lender’s determination that the
credit rating of Anchor Lease Guarantor by any Rating Agency shall be below
investment grade, (iv) the earlier of the date on which Borrower receives
notice that Anchor Tenant has elected not to renew the Anchor Tenant Lease at
the end of the initial term thereof and (provided Anchor Tenant has not elected
to renew the Anchor Tenant Lease) the date which is twelve (12) months prior to
the expiration date of the initial term of the Anchor Tenant Lease, or (v)
Borrower’s failure to repay the Debt on or before the Anticipated Repayment
Date.


“Casualty”
shall have the meaning specified in Section 6.2 hereof.


“Casualty/Condemnation
Prepayment” shall have the meaning specified in Section
6.4(e) hereof.


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


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


“Closing
Date” shall mean the date hereof.


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


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


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


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


“Debt
Service Coverage Ratio” shall mean a ratio for the
applicable period in which:


(a) the numerator
is the Net Operating Income (excluding interest on credit accounts) for such
period as set forth in the statements required hereunder, without deduction for
(i) actual management fees incurred in connection with the operation of the
Property, (ii) amounts paid to the Reserve Funds, less (A) management fees
equal to the greater of



 4
 






 



(1) assumed management fees of two percent (2.0%) of
Gross Income from Operations or (2) the actual management fees incurred, (B)
assumed Replacement Reserve Fund contributions equal to $0.00 per square foot
of gross leaseable area at the Property; and (C) assumed reserves for tenant
improvements and leasing commissions equal to $0.00 per square foot of gross
leaseable area at the Property; and


(b) the denominator is
the aggregate amount of interest due and payable on the Note for such
applicable period.


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


“Default
Rate” shall mean, with respect to the Loan, a rate per
annum equal to the lesser of (a) the maximum rate permitted by applicable law,
or (b) five percent (5%) above the Interest Rate or Hyper-Am Interest Rate, as
applicable.


“Disclosure
Document” shall have the meaning set forth in Section 9.2
hereof.


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


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


“Embargoed
Person” shall mean any person, entity or government
subject to trade restrictions under U.S. law, including, but not limited to,
The USA PATRIOT Act (including the anti-terrorism provisions thereof), the
International Emergency Economic Powers Act, 50 U.S.C. §§ 1701, et seq., The
Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders
or regulations promulgated thereunder including those related to Specially
Designated Nationals and Specially Designated Global Terrorists, with the
result that the investment in Borrower, Principal or Guarantor, as applicable
(whether directly or indirectly), is prohibited by law or the Loan made by the
Lender is in violation of law.



 5
 






 



“Environmental
Indemnity” shall mean that certain Environmental
Indemnity Agreement executed by Borrower in connection with the Loan for the
benefit of Lender, as the same may be amended, restated, replaced, supplemented
or otherwise modified from time to time.


“Environmental
Report” shall have the meaning as defined in the
Environmental Indemnity executed by the Borrower.


“ERISA”
shall mean the Employee Retirement Income Security Act of
1974, as amended.


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


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


“Exchange
Act Filing” shall have the meaning set forth in Section
5.1.11(i) hereof.


“Extraordinary
Expense” shall have the meaning set forth in Section
5.1.11(e) hereof.


“Fiscal
Year” shall mean each twelve (12) month period commencing
on January 1 and ending on December 31 during each year of the term of the
Loan.


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


“Gross
Income from Operations” shall mean all sustainable income
as reported on the financial statements delivered by the Borrower in accordance
with this Agreement, computed in accordance with accounting principles
reasonably acceptable to Lender, consistently applied, derived from the
ownership and operation of the Property from whatever source, including, but not limited to, (i)
Rents from Tenants that are in occupancy, open for business and paying unabated
Rent, (ii) utility charges, (iii) escalations, (iv) intentionally omitted; (v)
service fees or charges, (vi) license fees, (vii) parking fees, and (viii)
other required pass-throughs but excluding
(i) Rents from Tenants that are subject to any bankruptcy proceeding
(unless such Tenant has affirmed its Lease), or are not in occupancy, open for
business or paying unabated Rent, (ii) sales, use and occupancy or other taxes
on receipts required to be accounted for by Borrower to any Governmental
Authority, (iii) refunds and uncollectible accounts, (iv) sales of furniture,
fixtures and equipment, (v) Insurance Proceeds (other than business
interruption or other loss of income insurance), (vi) Awards, (vii) unforfeited
security deposits, (viii) utility and other similar deposits and (ix) any
disbursements to Borrower from the Reserve Funds. Gross income shall not be
diminished as a result of the Mortgage or the creation of any intervening
estate or interest in the Property or any part thereof.


“Hyper-Am
Interest Rate” shall mean a rate per annum equal to the
lesser of (a) the maximum rate permitted by applicable law, or (b) two percent
(2%) above the Interest Rate.



 6
 






 



“Hyper-Am
Prepayment” shall mean any application of Excess Cash Flow
to the Debt pursuant to Section 2.2.4.


“Improvements”
shall have the meaning set forth in the granting clause of the Mortgage with respect to the Property.


“Indebtedness” of a Person, at a particular date, means the
sum (without duplication) at such date of (a) indebtedness or liability for
borrowed money; (b) obligations evidenced by bonds, debentures, notes, or other
similar instruments; (c) obligations for the deferred purchase price of
property or services (including trade obligations); (d) obligations under
letters of credit; (e) obligations under acceptance facilities; (f) all
guaranties, endorsements (other than for collection or deposit in the ordinary
course of business) and other contingent obligations to purchase, to provide
funds for payment, to supply funds, to invest in any Person or entity, or
otherwise to assure a creditor against loss; and (g) obligations secured by any
Liens, whether or not the obligations have been assumed.


“Indemnitor” shall mean Sole Member, or any Substitute Indemnitor.


“Indemnifying Person” shall mean each of Borrower and Indemnitor.


“Indemnity Agreement” shall mean that certain Indemnity Agreement
dated as of the Closing Date by Borrower and Indemnitor in favor of Lender, or
any replacement Indemnity Agreement executed by a Substitute Indemnitor.


“Independent Director” shall mean a director of a corporation or a
director or manager of a limited liability company who is not at the time of
initial appointment, or at any time while serving as a director of such an entity,
and has not been at any time during the preceding five (5) years: (a) a
stockholder, director (with the exception of serving as the Independent
Director), officer, employee, partner, attorney or counsel of the Borrower or
any Affiliate of either of them; (b) a customer, supplier or other person who
derives any of its purchases or revenues from its activities with the Borrower
or any Affiliate of either of them; (c) a Person controlling or under common
control with any such stockholder, director, officer, partner, customer,
supplier or other Person; or (d) a member of the immediate family of any such
stockholder, director, officer, employee, partner, customer, supplier or other
person. As used in this definition, the term “control” means the possession, directly
or indirectly, of the power to direct or cause the direction of management,
policies or activities of a Person, whether through ownership of voting
securities, by contract or otherwise.


“Inland American Real Estate Trust, Inc.” shall mean Inland American Real Estate Trust,
Inc., a Maryland corporation.


“Insolvency Opinion” shall have the meaning set forth in Section
3.1.6 hereof.


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


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


“Interest Rate” shall mean 5.3425% per annum.



 7
 






 



“Lease” shall mean any lease, sublease or subsublease, letting, license,
concession or other agreement (whether written or oral and whether now or
hereafter in effect) pursuant to which any Person is granted a possessory
interest in, or right to use or occupy all or any portion of any space in the
Property of Borrower, 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.


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


“Lender” shall mean Bear Stearns Commercial Mortgage, Inc., together with its
successors and assigns.


“Licenses” shall have the meaning set forth in Section 4.1.22 hereof.


“Lien” shall mean, with respect to the Property, any mortgage, deed of trust,
deed to secure debt, lien, pledge, hypothecation, assignment, security
interest, or any other encumbrance, charge or transfer of, on or affecting Borrower,
the Property, any portion thereof or any interest therein, including, without
limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, the filing of any financing statement, and mechanic’s, materialmen’s
and other similar liens and encumbrances.


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


“Loan Documents” shall mean, collectively, this Agreement, the
Note, the Mortgage, the Assignment of Leases and Rents, the Environmental
Indemnity, the Assignment of Management Agreement, the Indemnity Agreement and
all other documents executed and/or delivered in connection with the Loan.


“Lockbox Account” shall have the meaning specified in Section
2.6.3 hereof.


“Management Agreement” shall mean, with respect to the Property, the
management agreement entered into by and between Borrower and the Manager,
pursuant to which the Manager is to provide management and other services with
respect to the Property.



 8
 






 



“Manager”
shall mean Inland American Office Management, LLC, a Delaware limited liability
company.


“Maturity
Date” shall mean January 1, 2037, or such other date on
which the final payment of principal of the Note becomes due and payable as
therein or herein provided, whether at such stated maturity date, by
declaration of acceleration, or otherwise.


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


“MERS”
shall mean Mortgage Electronic Registration Systems, Inc., a Delaware
corporation.


“Monthly
Debt Service Payment Amount” shall mean an amount equal
to $501,727.53.


“Mortgage”
shall mean, with respect to the Property, that certain first priority Deed of
Trust, Security Agreement and Fixture Filing, dated the Closing Date, executed
and delivered by Borrower to (or for the benefit of) MERS nominee of Lender, as
security for the Loan and encumbering the Property, as the same may be amended,
restated, replaced, supplemented or otherwise modified from time to time.


“Net
Cash Flow” shall mean, with respect to the Property for
any period, the amount obtained by subtracting Operating Expenses and Capital
Expenditures for such period from Gross Income from Operations for such period.


“Net
Cash Flow After Debt Service” shall mean, with respect to
the Property for any period, the amount obtained by subtracting Debt Service
for such period from Net Cash Flow for such period.


“Net
Cash Flow Schedule” shall have the meaning set forth in
Section 5.1.11(b) hereof.


“Net
Operating Income” shall mean the amount obtained by
subtracting from Gross Income from Operations (i) Operating Expenses, and (ii)
a vacancy allowance equal to the greater of (x) market vacancy (as reasonably
determined by Lender), less actual vacancy, and (y) underwritten vacancy of
2.0%, less actual vacancy. Notwithstanding the foregoing, if actual vacancy
exceeds market vacancy and underwritten vacancy, then there shall be no
adjustment for a vacancy allowance.


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


“Net
Proceeds Deficiency” shall have the meaning set forth in
Section 6.4(b)(vi) hereof.



 9
 






 



“Net
Proceeds Prepayment” shall have the meaning set forth in
Section 6.4(e) hereof.


“Note” shall mean that certain
Promissory Note of even date herewith in the principal amount of One Hundred
Twelve Million Six Hundred Ninety Five Thousand and NO/100 Dollars
($112,695,000.00), made by Borrower in favor of Lender, as the same may be
amended, restated, replaced, supplemented or otherwise modified from time to
time.


[“O&M Agreement” shall mean, that
certain Operations and Maintenance Agreement, dated as of the date hereof, between
Borrower and Lender given in connection with the Loan, as the same may be
amended, restated, replaced, supplemented or otherwise modified from time to
time.]


“Officers’
Certificate” shall mean a certificate delivered to Lender
by Borrower which is signed by the Sole Member.


“Operating
Expenses” shall mean the total of all expenditures,
computed in accordance with accounting principles reasonably acceptable to
Lender, consistently applied, of whatever kind relating to the operation,
maintenance and management of the Property that are incurred on a regular
monthly or other periodic basis, including without limitation, utilities,
ordinary repairs and maintenance, insurance, license fees, property taxes and
assessments, advertising expenses, management fees, payroll and related taxes,
computer processing charges, operational equipment or other lease payments as
approved by Lender, and other similar costs, but excluding depreciation, Debt
Service, Capital Expenditures and contributions to the Reserve Funds.


“Other
Charges” shall mean all ground rents, maintenance
charges, impositions other than Taxes, and any other charges, including,
without limitation, vault charges and license fees for the use of vaults,
chutes and similar areas adjoining the Property, now or hereafter levied or
assessed or imposed against the Property or any part thereof.


“Other
Leases” shall have the meaning set forth in Section
4.1.26 hereof.


“Payment
Date” shall mean the first (1st) day of each calendar
month during the term of the Loan or, if such day is not a Business Day, the
immediately succeeding Business Day.


“Permitted
Encumbrances” shall mean, with respect to the Property,
collectively, (a) the Liens and security interests created by the Loan
Documents, (b) all Liens, encumbrances and other matters disclosed in the Title
Insurance Policy relating to the Property or any part thereof, (c) Liens, if
any, for Taxes imposed by any Governmental Authority not yet due or delinquent,
(d) easements or other encumbrances granted pursuant to Section 5.2.13(d)
hereof, and (e) such other title and survey exceptions as Lender has approved
or may approve in writing in Lender’s reasonable discretion, which Permitted
Encumbrances in the aggregate do not materially adversely affect the value or
use of the Property or Borrower’s ability to repay the Loan.



 10
 






 



“Permitted
Investments”  shall mean any one or more of the following
obligations or securities acquired at a purchase price of not greater than par,
including those issued by Servicer, the trustee under any Securitization or any
of their respective Affiliates, payable on demand or having a maturity date not
later than the Business Day immediately prior to the first Payment Date
following the date of acquiring such investment and meeting one of the appropriate
standards set forth below:


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


(ii)      Federal
Housing Administration debentures;


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


(iv)      federal
funds, unsecured certificates of deposit, time deposits, bankers’ acceptances
and repurchase agreements with maturities of not more than 365 days of any
bank, the short term obligations of which at all times are rated in the highest
short term rating category by each Rating Agency (or, if not rated by all
Rating Agencies, rated by at least one Rating Agency in the highest short term
rating category and otherwise acceptable to each other Rating Agency, as
confirmed in writing that such investment would not, in and of itself, result
in a downgrade, qualification or withdrawal of the initial, or, if higher, then
current ratings assigned to the Securities); provided, however,



 11
 






 



that the investments described in this clause must (A)
have a predetermined fixed dollar of principal due at maturity that cannot vary
or change, (B) if rated by S&P, must not have an “r” highlighter affixed to
their rating, (C) if such investments have a variable rate of interest, such
interest rate must be tied to a single interest rate index plus a fixed spread
(if any) and must move proportionately with that index, and (D) such
investments must not be subject to liquidation prior to their maturity;


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


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


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



 12
 






 



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


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


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


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


“Permitted
Prepayment Date” shall mean the date that is three (3)
years from the first day of the calendar month immediately following the
Closing Date.


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


“Personal
Property” shall have the meaning set forth in the
granting clause of the Mortgage with respect to the Property.


“Physical
Conditions Report” shall mean, with respect to the
Property, a report prepared by a company satisfactory to Lender regarding the
physical condition of the Property, satisfactory in form and substance to
Lender in its sole discretion, which report shall, among other things, (a)
confirm that the Property and its use complies, in all material respects, with
all applicable Legal Requirements (including, without limitation, zoning,
subdivision and building laws) and (b) include a copy of a final certificate of
occupancy with respect to all Improvements on the Property.


“Policies”
shall have the meaning specified in Section 6.1(b) hereof.


“Prepayment
Consideration” shall have the meaning set forth in
Section 2.3.1.



 13
 






 



“Prepayment
Rate” shall mean the bond equivalent yield (in the
secondary market) on the United States Treasury Security that as of the
Prepayment Rate Determination Date has a remaining term to maturity closest to,
but not exceeding, the remaining term to the Maturity Date, as most recently
published in the “Treasury Bonds, Notes and Bills” section in The Wall Street
Journal as of the date of the related tender of the payment. If more than one
issue of United States Treasury Securities has the remaining term to the
Maturity Date referred to above, the “Prepayment Rate” shall be the yield on
the United States Treasury Security most recently issued as of such date. If
the publication of the Prepayment Rate in The Wall Street Journal is
discontinued, Lender shall determine the Prepayment Rate on the basis of
“Statistical Release H.15(519), Selected Interest Rates,” or any successor
publication, published by the Board of Governors of the Federal Reserve System,
or on the basis of such other publication or statistical guide as Lender may
reasonably select.


“Prepayment
Rate Determination Date” shall mean the date which is
five (5) Business Days prior to the prepayment date.


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


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


“Qualified
Entity” shall mean an entity (a) with a net worth equal
to or greater than the Applicable Net Worth Requirement, (b) with experience in
the ownership and management of properties similar to the Property, (c) that
has not been a party to any bankruptcy proceedings, voluntary or involuntary,
made an assignment for the benefit of creditors or taken advantage of any
insolvency act, or any act for the benefit of debtors within (7) years prior to
the date of the proposed transfer of the Property, (d) that has no material
litigation or regulatory action pending or threatened, and (e) that has not defaulted
under its or their obligations with respect to any other indebtedness.


“Qualifying
Manager” shall mean either (a) a reputable and
experienced management organization reasonably satisfactory to Lender, which
organization or its principals possess at least ten (10) years experience in
managing properties similar in size, scope and value of the Property and which,
on the date Lender determines whether such management organization is a
Qualifying Manager, manages at least one million square feet of office space,
provided that Borrower shall have obtained prior written confirmation from the
Rating Agency that management of the Property by such entity will not cause a
downgrading, withdrawal or qualification of the then current rating of the
securities issued pursuant to the Securitization, or (b) the fee owner of the
Property, provided that such owner possesses experience in managing and
operating properties similar in size, scope and value of the Property. Lender
acknowledges that on the Closing Date, Manager shall be deemed to be a
Qualifying Manager.



 14
 






 



“Rating
Agencies” shall mean each of Standard & Poor’s
Ratings Services, a division of McGraw-Hill, Inc., Moody’s Investors Service,
Inc. and Fitch, Inc., or any other nationally-recognized statistical rating
agency which has been approved by Lender.


“Rating
Surveillance Charge” shall have the meaning set forth in
Section 9.3 hereof.


“Relevant
Leasing Threshold” shall mean, any Lease for an amount of
leaseable square footage equal to or greater than 10,000 square feet.


“Relevant
Restoration Threshold” shall mean Five Hundred Thousand
and No/100 dollars ($500,000.00).


“REMIC
Trust” shall mean a “real estate mortgage investment
conduit” within the meaning of Section 860D of the Code that holds the Note.


“Rents”
shall mean, with respect to the Property, all rents, rent equivalents, moneys
payable as damages or in lieu of rent or rent equivalents, royalties
(including, without limitation, all oil and gas or other mineral royalties and
bonuses), income, receivables, receipts, revenues, deposits (including, without
limitation, security, utility and other deposits), accounts, cash, issues,
profits, charges for services rendered, and other consideration of whatever
form or nature received by or paid to or for the account of or benefit of
Borrower or its agents or employees from any and all sources arising from or
attributable to the Property, and proceeds, if any, from business interruption
or other loss of income insurance.


“Replacement
Reserve Account” shall have the meaning set forth in
Section 7.3.1 hereof.


“Replacement
Reserve Fund” shall have the meaning set forth in Section
7.3.1 hereof.


“Replacement
Reserve Monthly Deposit” shall have the meaning set forth
in Section 7.3.1 hereof.


“Replacements”
shall have the meaning set forth in Section 7.3. l (a) hereof.


“Required
Repair Account” shall have the meaning set forth in
Section 7.1.1 hereof.


“Required
Repair Fund” shall have the meaning set forth in Section
7.1.1 hereof.


“Required
Repairs” shall have the meaning set forth in Section
7.1.1 hereof.


“Reserve
Funds” shall mean the Tax and Insurance Escrow Fund, the
Replacement Reserve Fund, the Required Repair Fund (if any), the Lockbox
Account or any other escrow fund established by the Loan Documents.



 15
 






 



“Restoration”
shall have the meaning set forth in Section 6.2 hereof.


“Securities”
shall have the meaning set forth in Section 9.1 hereof.


“Securities
Act” shall have the meaning set forth in Section 9.2
hereof.


“Securitization”
shall have the meaning set forth in Section 9.1 hereof.


“Servicer”
shall have the meaning set forth in Section 9.6 hereof.


“Servicing
Agreement” shall have the meaning set forth in Section
9.6 hereof.


“Severed
Loan Documents” shall have the meaning set forth in
Section 8.2(c) hereof.


“Sole
Member” shall mean Minto Builders (Florida), Inc., a
Florida corporation


“Special
Purpose Entity” means a corporation, limited partnership,
limited liability company, or Delaware statutory trust which at all times on
and after the Closing Date:


(i)      is
organized solely for the purpose of (A) acquiring, developing, owning, holding,
selling, leasing, transferring, exchanging, managing and operating the
Property, entering into this Agreement with the Lender, refinancing the
Property in connection with a permitted repayment of the Loan, and transacting
lawful business that is incident, necessary and appropriate to accomplish the
foregoing; or (B) acting as a general partner of the limited partnership that
owns the Property, a member of the limited liability company that owns the
Property or the beneficiary or trustee of a Delaware statutory trust that owns
the Property;


(ii)      is
not engaged and will not engage in any business unrelated to (A) the
acquisition, development, ownership, management or operation of the Property,
(B) acting as general partner of the limited partnership that owns the
Property, (C) acting as a member of the limited liability company that owns the
Property, or (D) acting as the beneficiary or trustee of a Delaware statutory
trust that owns the Property, as applicable;


(iii)      does
not have and will not have any assets other than those related to the Property
or its partnership interest in the limited partnership, the member interest in
the limited liability company or the beneficial interest in the Delaware
statutory trust that owns the Property or acts as the general partner, managing
member or beneficiary or trustee thereof, as applicable;


(iv)      has
not engaged, sought or consented to and will not engage in, seek or consent to
any dissolution, winding up, liquidation, consolidation, merger, sale of all or
substantially all of its assets, transfer of partnership, membership or
beneficial or trustee interests (if such entity is a general partner in a
limited partnership, a member in a limited liability company or a beneficiary
of a Delaware trust) or amendment of its limited partnership agreement,
articles of incorporation, articles of organization, certificate of



 16
 






 



formation, operating agreement or trust formation and
governance documents (as applicable) with respect to the matters set forth in
this definition;


(v)      if
such entity is a limited partnership, has as its only general partners, Special
Purpose Entities that are corporations, limited partnerships or limited
liability companies;


(vi)      if
such entity is a corporation, has at least two (2) Independent Directors, and
has not caused or allowed and will not cause or allow the board of directors of
such entity to take any action related to a bankruptcy or insolvency proceeding
or a voluntary dissolution without the unanimous affirmative vote of 100% of
the members of its board of directors, including the Independent Directors;


(vii)      if
such entity is a limited liability company and such limited liability company
has more than one member, such limited liability company has as its manager a
Special Purpose Entity that is a corporation and that owns at least 1.0% (one
percent) of the equity of the limited liability company;


(viii)      if
such entity is a limited liability company and such limited liability company
has only one member, such limited liability company (a) has been formed under
Delaware law, (b) has either a corporation or other person or entity that shall
become a member of the limited liability company upon the dissolution or
disassociation of the member, and (c) has a board of directors with not less
than two (2) Independent Directors, and (d) will not cause or allow its board
of directors to take any action related to a bankruptcy or insolvency
proceeding or a voluntary dissolution without the unanimous affirmative vote of
100% of the members of its board of directors, including the Independent
Directors;


(ix)      if
such entity is (a) a limited liability company, has articles of organization, a
certificate of formation and/or an operating agreement, as applicable, (b) a
limited partnership, has a limited partnership agreement, (c) a corporation,
has a certificate or articles of incorporation and bylaws, as applicable, or
(d) a Delaware statutory trust, has organizational documents that, in each
case, provide that such entity will not: (1) dissolve, merge, liquidate,
consolidate; (2) except as permitted herein, sell all or substantially all of
its assets or the assets of the Borrower (as applicable) except as permitted
herein; (3) engage in any other business activity, or amend its organizational
documents with respect to the matters set forth in this definition without the
consent of the Lender; or (4) without the affirmative vote of all directors of
the corporation (that is such entity or the general partner or managing or
co-managing member or manager of such entity), file a bankruptcy or insolvency
petition or otherwise institute insolvency proceedings with respect to itself
or to any other entity in which it has a direct or indirect legal or beneficial
ownership interest;


(x)      has
not entered into or been a party to, and will not enter into or be a party to,
any transaction with its partners, members, beneficiaries, shareholders or
Affiliates except (A) in the ordinary course of its business and on terms which
are intrinsically fair, commercially reasonable and are no less favorable to it
than would be obtained in a



 17
 






 



comparable arm’s-length
transaction with an unrelated third party and (B) in connection with this
Agreement;


(xi)      is
solvent and pays its debts and liabilities (including, as applicable, shared
personnel and overhead expenses) from its assets as the same become due, and is
maintaining adequate capital for the normal obligations reasonably foreseeable
in a business of its size and character and in light of its contemplated
business operations;


(xii)      has
not failed and will not fail to correct any known misunderstanding regarding
the separate identity of such entity;


(xiii)      will
file its own tax returns; provided, however, that Borrower’s assets and
income may be included in a consolidated tax return of its parent companies if
inclusion on such consolidated tax return is in compliance with applicable law;


(xiv)      has
maintained and will maintain its own resolutions and agreements;


(xv)      (a)
has not commingled and will not commingle its funds or assets with those of any
other Person and (b) has not participated and will not participate in any cash
management system with any other Person, except with respect to a custodial
account maintained by the Manager on behalf of Affiliates of Borrower and, with
respect to funds in such custodial account, has separately accounted, and will
continue to separately account for, each item of income and expense applicable
to the Property and Borrower;


(xvi)      has
held and will hold its assets in its own name;


(xvii)      has
conducted and will conduct its business in its name or in a name franchised or
licensed to it by an entity other than an Affiliate of Borrower;


(xviii)      has
maintained and will maintain its balance sheets, operating statements and other
entity documents separate from any other Person and has not permitted and will
not permit its assets to be listed as assets on the financial statement of any
other entity except as required or permitted by applicable accounting
principles acceptable to Lender, consistently applied; provided, however,
that (i) any such consolidated financial statement shall contain a note
indicating that it maintains separate balance sheets and operating statements
for the Borrower and the Property, or (ii) if such Person is controlled by
Inland American Real Estate Trust, Inc., then such Person may be included in
the consolidated financial statement of Inland American Real Estate Trust, Inc.
provided such consolidated financial statement contains a note indicating that
it maintains separate financial records for each Person controlled by Inland
American Real Estate Trust, Inc.;


(xix)      has
a sufficient number of employees in light of its contemplated business
operations, which may be none;


(xx)      has
observed and will observe all partnership, corporate, limited liability company
or Delaware statutory trust formalities, as applicable;



 18














 


(xxi)          has and will have no Indebtedness
(including loans (whether or not such loans are evidenced by a written
agreement) between Borrower and any Affiliates of Borrower and relating to the
management of funds in the custodial account maintained by the Manager) other
than (i) the Loan, (ii) liabilities, not to exceed $1,000,000 outstanding at
any time, incurred in the ordinary course of business relating to the ownership
and operation of the Property and the routine administration of Borrower, which
liabilities are not more than sixty (60) days past the date incurred (unless
disputed in accordance with applicable law), are not evidenced by a note and
are paid when due, and which amounts are normal and reasonable under the
circumstances, and (iii) such other liabilities that are permitted pursuant to
this Agreement;


(xxii)         has not and will not assume or
guarantee or become obligated for the debts of any other Person or hold out its
credit as being available to satisfy the obligations of any other Person except
as otherwise permitted pursuant to this Agreement;


(xxiii)        has not and will not acquire obligations
or securities of its partners, members, beneficiaries or shareholders or any
other Affiliate;


(xxiv)        has allocated and will allocate fairly
and reasonably any overhead expenses that are shared with any Affiliate,
including, but not limited to, paying for shared office space and services
performed by any employee of an affiliate;


(xxv)         has not maintained or used, and will
not maintain or use, invoices and checks bearing the name of any other Person, provided,
however, that Manager, on behalf of such Person, may maintain and use
invoices and checks bearing Manager’s name;


(xxvi)        has not pledged and will not pledge its
assets for the benefit of any other Person except as permitted or required
pursuant to this Agreement;


(xxvii)       has held itself out and identified itself
and will hold itself out and identify itself as a separate and distinct entity
under its own name or in a name franchised or licensed to it by an entity other
than an Affiliate of Borrower and not as a division or part of any other
Person, except for services rendered by Manager under the Management Agreement,
so long as Manager holds itself out as an agent of the Borrower;


(xxviii)      has maintained and will maintain its
assets in such a manner that it will not be costly or difficult to segregate,
ascertain or identify its individual assets from those of any other Person;


(xxix)        has not made and will not make loans to
any Person or hold evidence of indebtedness issued by any other person or
entity (other than cash and investment-grade securities issued by an entity
that is not an Affiliate of or subject to common ownership with such entity);


(xxx)         has not identified and will not
identify its partners, members, beneficiaries or shareholders, or any Affiliate
of any of them, as a division or part of it, and has not identified itself and
shall not identify itself as a division of any other Person;



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(xxxi)        does not and will not have any of its
obligations guaranteed by any Affiliate except as otherwise required in the
Loan Documents;


(xxxii)       has not entered into or been a party to,
and will not enter into or be a party to, any transaction with its partners,
members, beneficiaries, shareholders or Affiliates except (A) in the ordinary
course of its business and on terms which are intrinsically fair, commercially
reasonable and are no less favorable to it than would be obtained in a
comparable arm’s-length transaction with an unrelated third party and (B) in
connection with this Agreement; and


(xxxiii)      has complied and will comply with all of
the terms and provisions contained in its organizational documents. The
statement of facts contained in its organizational documents are true and
correct and will remain true and correct.


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


“Substitute
Indemnitor” shall have the meaning set forth in the
Indemnity Agreement.


“Survey”
shall mean a survey of the Property in question prepared by a surveyor licensed
in the State and satisfactory to Lender and the company or companies issuing
the Title Insurance Policy, and containing a certification of such surveyor
satisfactory to Lender.


“Tax
and Insurance Escrow Fund” shall have the meaning set
forth in Section 7.2 hereof regardless of whether the funds held therein are
held by Lender for the payment of Taxes or Insurance Premiums or both.


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


“Tenant”
shall mean any person or entity with a possessory right to all or any part of
the Property pursuant to a Lease or other written agreement.


“Tenant
Direction Letter” shall mean a letter in the form of
Schedule I attached hereto from Borrower to the tenant under each Lease with
respect to the Property (whether such Lease is presently effective or executed
after the Closing Date) directing such tenant to send directly to Lender for
deposit into the Lockbox Account all payments of Rent payable to Borrower under
such Lease.


“Threshold
Amount” shall have the meaning set forth in Section
5.1.21 hereof.


“Title
Insurance Policy” shall mean, with respect to the
Property, an ALTA mortgagee title insurance policy in the form (acceptable to
Lender) (or, if the Property is in a State which does not permit the issuance
of such ALTA policy, such form as shall be permitted in such State and
acceptable to Lender) issued with respect to the Property and insuring the lien
of the Mortgage encumbering the Property.



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“Transferee”
shall have the meaning set forth in Section 5.2.13 hereof.


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


“U.S.
Obligations” shall mean direct non-callable obligations
of the United States of America as defined in Section 2(a)(16) of the
Investment Company Act as amended (15 USC 80a-l) stated in REMIC Section 1.86
OG-2(a)(8).


Section 1.2 Principles
of Construction. All references to sections and schedules are to sections
and schedules in or to this Agreement unless otherwise specified. All uses of
the word “including” shall mean “including, without limitation” unless the
context shall indicate otherwise. Unless otherwise specified, the words “hereof,”
“herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. Unless otherwise specified, all meanings
attributed to defined terms herein shall be equally applicable to both the
singular and plural forms of the terms so defined.


ARTICLE II 

GENERAL TERMS


Section 2.1 Loan
Commitment; Disbursement to Borrower.


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


2.1.2     Disbursement to Borrower. Borrower may
request and receive only one borrowing hereunder in respect of the Loan and any
amount borrowed and repaid hereunder in respect of the Loan may not be
reborrowed.


2.1.3     The Note, Mortgage and Loan Documents.
The Loan shall be evidenced by the Note and secured by the Mortgage, the
Assignment of Leases and the other Loan Documents.


2.1.4     Use of Proceeds. Borrower shall use
the proceeds of the Loan to (a) acquire the Property and to repay and discharge
any existing loans relating to the Property, (b) pay all past-due Basic
Carrying Costs, if any, in respect of the Property, (c) make deposits into the
Reserve Funds on the Closing Date in the amounts provided herein, (d) pay costs
and expenses incurred in connection with the closing of the Loan, as approved by
Lender, (e) fund any working capital requirements of the Property, and (f)
distribute the balance, if any, to Borrower.


Section 2.2 Interest;
Loan Payments; Late Payment Charge.


2.2.1     Interest Generally. Interest on the
outstanding principal balance of the Loan shall accrue from and including the
Closing Date to but excluding the Anticipated



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Repayment Date at the
Interest Rate, and from and including the Anticipated Repayment Date to but
excluding the Maturity Date at the Hyper-Am Interest Rate.


2.2.2     Interest Calculation. Interest on
the outstanding principal balance of the Loan shall be calculated on the basis
of a three hundred sixty (360) day year comprised of twelve (12) months of
thirty (30) days each, except that interest due and payable for a period of
less than a full month shall be calculated by multiplying the actual number of
days elapsed in the period for which the calculation is being made by a daily
rate based on a three hundred sixty (360) day year.


2.2.3     Payments Generally. Borrower shall pay
to Lender (a) on the Closing Date, an amount equal to interest only on the
outstanding principal balance of the Loan from the Closing Date up to but not
including the first Payment Date following the Closing Date, and (b) on
February 1, 2007 and each Payment Date thereafter up to but not including the
Maturity Date, an amount equal to the Monthly Debt Service Payment Amount,
which shall be applied to interest on the outstanding principal amount of the
Loan for the prior calendar month (without adjustment for Accrued Interest, if
applicable) at the Interest Rate.


2.2.4     Payments after Anticipated Repayment
Date. On each Payment Date after the Anticipated Repayment Date up to but
not including the Maturity Date, in addition to the Monthly Debt Service Payment
Amount, Borrower shall pay to Lender any Excess Cash Flow for the calendar
month preceding such Payment Date. Each such payment of Excess Cash Flow,
together with any remaining amount of the Monthly Debt Service Payment Amount
paid on such date after the payment of interest on the outstanding principal
balance of the Loan at the Interest Rate, if any, shall be applied (i) first,
to the prepayment of outstanding principal until the Loan has been paid in
full, and (ii) next, to the payment of the difference, if any, between (y) the
sum of (i) interest accrued and unpaid on the principal amount of the Loan at
the Hyper-Am Rate and (ii) interest on such accrued and unpaid interest at the
Hyper-Am Rate and (z) the interest paid at the Interest Rate on such Payment
Date. Interest accrued at the Hyper-Am Rate and not paid pursuant to the
preceding sentence shall be added to the outstanding principal balance on the
first day following such Payment Date and shall earn interest at the Hyper-Am
Rate to the extent permitted by law (such accrued interest referred to as, “Accrued Interest”).


2.2.5     Payment on Maturity Date. Borrower
shall pay to Lender on the Maturity Date the outstanding principal balance of
the Loan, all accrued and unpaid interest and all other amounts due hereunder
and under the Note, the Mortgage and other the Loan Documents.


2.2.6     Payments after Default. Upon the
occurrence and during the continuance of an Event of Default, interest on the
outstanding principal balance of the Loan and, to the extent permitted by law,
overdue interest and other amounts due in respect of the Loan, shall accrue at
the Default Rate, calculated from the date such payment was due without regard
to any grace or cure periods contained herein. Interest at the Default Rate shall
be computed from the occurrence of the Event of Default until the earlier of
(i) in the event of a non-monetary default, the cure of such Event of Default
by Borrower and acceptance of such cure by Lender, and (ii) in the event of a
monetary default, the actual receipt and collection of the Debt (or that
portion thereof that is then due). To the extent permitted by applicable law,
interest at the Default Rate shall be added to the Debt, shall itself accrue
interest at the same rate as the Loan and shall be



 22
 






 



secured by the Mortgage.
This paragraph shall not be construed as an agreement or privilege to extend
the date of the payment of the Debt, nor as a waiver of any other right or
remedy accruing to Lender by reason of the occurrence of any Event of Default
and Lender retains its rights under the Note and this Agreement to accelerate
and to continue to demand payment of the Debt upon the happening and
continuance of any Event of Default.


2.2.7     Late Payment Charge. If any
principal, interest or any other sums due under the Loan Documents is not paid
by Borrower on or prior to the date which is five (5) days after the date on
which it is due, Borrower shall pay to Lender upon demand an amount equal to
the lesser of five percent (5%) of such unpaid sum or the maximum amount
permitted by applicable law in order to defray the expense incurred by Lender
in handling and processing such delinquent payment and to compensate Lender for
the loss of the use of such delinquent payment. Any such amount shall be
secured by the Mortgage and the other Loan Documents to the extent permitted by
applicable law. The foregoing late payment charge shall not apply to the
payment of all outstanding principal, interest and other sums due on the
Maturity Date.


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


Section 2.3 Prepayments.


2.3.1 Voluntary
Prepayments.


(a)   Except as otherwise provided herein, Borrower
shall not have the right to prepay the Loan in whole or in part prior to the
Permitted Prepayment Date. On or after the Permitted Prepayment Date, Borrower
may, provided it has given Lender prior written notice in accordance with the
terms of this Agreement, prepay the unpaid principal balance of the Loan in
whole, but not in part, by paying, together with the amount to be prepaid, (i)
interest accrued and unpaid on the outstanding principal balance of the Loan
being prepaid to and including the date of prepayment, (ii) unless prepayment
is tendered on a Payment Date, an amount equal to the interest that would have
accrued on the amount being prepaid after the date of prepayment through and
including the next Payment Date had the prepayment not been made (which amount
shall constitute additional consideration for the prepayment), (iii) all other
sums then due under this Agreement, the Note, the Mortgage and the other Loan
Documents, and (iv) if prepayment



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occurs prior to the
Payment Date which is one month prior to the Anticipated Repayment Date, a
prepayment consideration (the “Prepayment Consideration”) equal to the greater of (A) one
percent (1%) of the outstanding principal balance of the Loan being prepaid or
(B) the excess, if any, of (1) the sum of the present values of all
then-scheduled payments of principal and interest under this Agreement including,
but not limited to, principal and interest on the Anticipated Repayment Date
(with each such payment discounted to its present value at the date of
prepayment at the rate which, when compounded monthly, is equivalent to the
Prepayment Rate), over (2) the outstanding principal amount of the Loan. Lender
shall notify Borrower of the amount and the basis of determination of the
required prepayment consideration.


(b)   On the Payment Date that is one month prior
to the Anticipated Repayment Date, and on each day thereafter through the
Maturity Date, Borrower may, at its option, prepay the Debt, in whole or in
part (including a Hyper-Am Prepayment), without payment of any Prepayment
Consideration; provided, however, if such prepayment (other than a Hyper-Am Prepayment)
is not paid on a regularly scheduled Payment Date, such prepayment shall
include interest that would have accrued on such prepayment through and
including the next Payment Date. Except in connection with a Hyper-Am
Prepayment, Borrower’s right to prepay any portion of the principal balance of
the Loan shall be subject to (i) Borrower’s submission of a notice to Lender
setting forth the amount to be prepaid and the projected date of prepayment,
which date shall be no less than thirty (30) days from the date of such notice,
and (ii) Borrower’s actual payment to Lender of the amount to be prepaid as set
forth in such notice on the projected date set forth in such notice or any day
following such projected date occurring in the same calendar month as such
projected date.


2.3.2     Mandatory Prepayments. (a) On the
next occurring Payment Date following the date on which Borrower actually
receives any Net Proceeds, if Lender is not obligated to make such Net Proceeds
available to Borrower or Anchor Tenant pursuant to this Agreement for the
restoration of the Property, Borrower shall, at Lender’s option, prepay the
outstanding principal balance of the Note in an amount equal to one hundred
percent (100%) of such Net Proceeds. No Prepayment Consideration or other
penalty or premium shall be due in connection with any prepayment made pursuant
to this Section 2.3.2. Any partial prepayment under this Section shall be
applied to the last payments of principal due under the Loan.


(b)   On the date on which Borrower tenders a
Casualty/Condemnation Prepayment pursuant to Section 6.4(e) below, such tender
shall include (a) all accrued and unpaid interest and the principal
indebtedness being prepaid, including interest on the outstanding principal
amount of the applicable Note through the last day of the month within which
such tender occurs, and (b) any other sums due hereunder relating to the
applicable Note. Except as set forth in this Section 2.3.2(b), other than
following an Event of Default, no Prepayment Consideration or other penalty or
premium shall be due in connection with any Casualty/Condemnation Prepayment.


2.3.3     Prepayments after Default. Following
an Event of Default, if Borrower or anyone on Borrower’s behalf makes a tender
of payment of all or any portion of the Debt at any time prior to a foreclosure
sale (including a sale under the power of sale under the Mortgage), or during
any redemption period after foreclosure, (i) the tender of payment shall
constitute an evasion of Borrower’s obligation to pay any Prepayment
Consideration due under this



 24
 






 



Agreement and such
payment shall, therefore, to the maximum extent permitted by law, include a
premium equal to the Prepayment Consideration that would have been payable on
the date of such tender had the Loan not been so accelerated, or (ii) if at the
time of such tender a prepayment of the principal amount of the Loan would have
been prohibited under this Agreement had the principal amount of the Loan not
been so accelerated, the tender of payment shall constitute an evasion of such
prepayment prohibition and shall, therefore, to the maximum extent permitted by
law, include an amount equal to the greater of (i) 1% of the then principal
amount of the Loan (or the relevant portion thereof being prepaid) and (ii) an
amount equal to the excess of (A) the sum of the present values of a series of
payments payable at the times and in the amounts equal to the payments of
principal and interest (including, but not limited to the principal and
interest payable on the Anticipated Repayment Date) which would have been
scheduled to be payable after the date of such tender under this Agreement had
the Loan (or the relevant portion thereof) not been accelerated, with each such
payment discounted to its present value at the date of such tender at the rate
which when compounded monthly is equivalent to the Prepayment Rate, over (B)
the then principal amount of the Loan.


Section 2.4 Intentionally
Omitted.


Section 2.5 Release
of Property. Except as set forth in this Section 2.5, no repayment or
prepayment of all or any portion of the Loan shall cause, give rise to a right
to require, or otherwise result in, the release of any Lien of the Mortgage on
the Property. If Borrower prepays the entire amount of the Loan pursuant to
Section 2.3 and the requirements of this Section 2.5 have been satisfied, the
Property shall be released from the Lien of the Mortgage.


2.5.1    Release on Payment in Full. Lender
shall, upon the written request and at the expense of Borrower, upon payment in
full of all principal and interest on the Loan and all other amounts due and
payable under the Loan Documents in accordance with the terms and provisions of
Section 2.3.1 of this Loan Agreement, release the Lien of the Mortgage on the
Property not theretofore released.


2.5.2    Intentionally Omitted.


Section 2.6 Manner
of Making Payments.


2.6.1    Making of Payments. Each payment by
Borrower hereunder or under the Note shall be made in funds settled through the
New York Clearing House Interbank Payments System or other funds immediately
available to Lender by 1:00 p.m., New York City time, on the date such payment
is due, to Lender by deposit to such account as Lender may designate by written
notice to Borrower. Whenever any payment hereunder or under the Note shall be
stated to be due on a day which is not a Business Day, such payment shall be
made on the next succeeding Business Day.


2.6.2    No Deductions. Etc. All payments made
by Borrower hereunder or under the Note or the other Loan Documents shall be
made irrespective of, and without any deduction for, any setoff, defense or
counterclaims.



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2.6.3    Cash Management. In connection with
the Closing, Borrower shall execute and deliver to Anchor Tenant a Tenant
Direction Letter, which Tenant Direction Letter instructs Anchor Tenant to deposit
Rent and other receivables related to the Property directly with Lender.
Borrower covenants and agrees to execute and deliver to Lender a Tenant
Direction Letter for each new tenant at the Property within thirty (30) days
after the execution of each new Lease for premises at the Property. Rents
received by Lender following delivery of the Tenant Direction Letter, shall be
held by Lender in an escrow account (the “Lockbox
Account”). The Lockbox Account shall be an interest-bearing
account and shall at Lender’s option be an Eligible Account at an Eligible
Institution. Any interest earned on the Lockbox Account shall accrue in said
account for the benefit of Borrower, but shall remain in and constitute part of
the Lockbox Account, and shall be disbursed in accordance with the terms
hereof. Lender shall have the sole right to make withdrawals from the Lockbox
Account. Lender shall apply funds in the Lockbox Account to pay debt service,
Taxes, Insurance Premiums and required reserves, if any, in such order as
Lender deems appropriate. Funds remaining in the Lockbox Account after payment
of the foregoing (the “Excess Cash Flow”)
shall be distributed to Borrower promptly pursuant to Borrower’s separate
instructions; provided, however, upon the occurrence of a Cash
Management Trigger and until the occurrence of a Cash Management Termination
Event, such Excess Cash Flow shall be distributed to Borrower only to the
extent of operating expenses approved by Lender and any remaining funds shall
remain in such Lockbox Account as additional collateral for the Loan. Upon the
earlier of (i) repayment of the Debt and (ii) a Cash Management Termination
Event, the balance of the funds in the Lockbox Account shall be distributed to
Borrower. The Borrower shall be responsible for the costs associated with the
Lockbox Account. The insufficiency of funds on deposit in the Lockbox Account
shall not relieve Borrower from the obligation to make any payments, as and
when due pursuant to this Agreement and the other Loan Documents, and such
obligations shall be separate and independent, and not conditioned on any event
or circumstance whatsoever.


ARTICLE III

CONDITIONS PRECEDENT


Section 3.1 Conditions
Precedent to Closing. The obligation of Lender to make the Loan hereunder
is subject to the fulfillment by Borrower or waiver by Lender of the following
conditions precedent no later than the Closing Date:


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


3.1.2       Loan Agreement and Note. Lender
shall have received a copy of this Agreement and the Note, in each case, duly
executed and delivered on behalf of Borrower.



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3.1.3       Delivery of Loan Documents; Title
Insurance; Reports; Leases; Etc.


(a) Mortgage,
Assignment of Leases and other Loan Documents. Lender shall have received
from Borrower fully executed and acknowledged counterparts of the Mortgage and
the Assignment of Leases and evidence that counterparts of the Mortgage and
Assignment of Leases have been delivered to the title company for recording, in
the reasonable judgment of Lender, so as to effectively create upon such
recording valid and enforceable first priority Liens upon the Property in favor
of Lender or its nominee (or such trustee as may be required under local law),
subject only to the Permitted Encumbrances and such other Liens as are
permitted pursuant to the Loan Documents. Lender shall have also received from
Borrower fully executed counterparts of the Assignment of Management Agreement
and the other Loan Documents.


(b) Title
Insurance. Lender shall have received a Title Insurance Policy issued by a
title company acceptable to Lender and dated as of the Closing Date. Such Title
Insurance Policy shall (i) provide coverage in an amount equal to the principal
amount of the Loan together with, if applicable, a “tie-in” or similar
endorsement, (ii) insure Lender that the Mortgage creates a valid first
priority lien on the Property encumbered thereby, free and clear of all
exceptions from coverage other than Permitted Encumbrances and standard
exceptions and exclusions from coverage (as modified by the terms of any
endorsements), (iii) contain such endorsements and affirmative coverages as
Lender may reasonably request, and (iv) name Lender, its successors and
assigns, as the insured. The Title Insurance Policy shall be assignable without
cost to Lender. Lender also shall have received evidence that all premiums in
respect of such Title Insurance Policy have been paid.


(c) Survey.
Lender shall have received a title survey for the Property, certified to the
title company and Lender and their successors and assigns, in form and content
satisfactory to Lender and prepared by a professional and properly licensed
land surveyor satisfactory to Lender in accordance with the most recent Minimum
Standard Detail Requirements for ALTA/ACSM Land Title Surveys. The following
additional items from the list of “Optional Survey Responsibilities and
Specifications” (Table A) should be added to each survey: 2, 3, 4, 6, 8, 9, 10,
11 and 13. The survey shall reflect the same legal description contained in the
Title Insurance Policy relating to the Property referred to in clause (ii)
above and shall include, among other things, a legal description of the real
property comprising part of such Property reasonably satisfactory to Lender. The
surveyor’s seal shall be affixed to each survey and the surveyor shall provide
a certification for each survey in form and substance acceptable to Lender.


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


(e) Environmental
Reports. Lender shall have received an environmental report in respect of
the Property, in each case reasonably satisfactory to Lender.


(f) Zoning.
With respect to the Property, Lender shall have received, at Lender’s option,
(i) letters or other evidence with respect to the Property from the appropriate
municipal authorities (or other Persons) concerning applicable zoning and
building laws, (ii) an ALTA 3.1 zoning endorsement to the Title Insurance
Policy or (iii) other evidence of zoning compliance, in each case in substance
reasonably satisfactory to Lender.



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


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


3.1.5       Delivery of Organizational Documents.
On or before the Closing Date, Borrower shall deliver or cause to be delivered
to Lender copies certified by Borrower of all organizational documentation
related to Borrower and/or the formation, structure, existence, good standing
and/or qualification to do business, as Lender may request in its sole
discretion, including, without limitation, good standing certificates,
qualifications to do business in the appropriate jurisdictions, resolutions
authorizing the entering into of the Loan and incumbency certificates as may be
requested by Lender.


3.1.6       Opinions of Borrower’s Counsel.
Lender shall have received opinions of Borrower’s counsel (and if applicable,
Borrower’s local counsel) (a) with respect to non-consolidation issues (an “Insolvency Opinion”) and (b) with
respect to due execution, authority, enforceability of the Loan Documents and
such other matters as Lender may reasonably require, all such opinions in form,
scope and substance reasonably satisfactory to Lender and Lender’s counsel in
their reasonable discretion.


3.1.7       Budgets. Borrower shall have
delivered, and Lender shall have approved, the Annual Budget for the current
Fiscal Year.


3.1.8       Basic Carrying Costs. Borrower
shall have paid all Basic Carrying Costs relating to the Property which are in
arrears, including without limitation, (a) accrued but unpaid insurance
premiums relating to the Property, (b) currently due and payable Taxes
(including any in arrears) relating to the Property, and (c) currently due
Other Charges relating to the Property, which amounts shall be funded with
proceeds of the Loan.


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


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


3.1.11     Tenant Estoppels. Borrower shall
deliver to Lender an estoppel letter executed by Anchor Tenant in the form
attached to the Anchor Tenant Lease (or such other form as may be reasonably
acceptable to Lender). Borrower also shall deliver to Lender an estoppel



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letter executed by Anchor
Lease Guarantor in the form required by the “Parent Guaranty” (as defined in
the Anchor Tenant Lease) (or such other form as may be reasonably acceptable to
Lender).


3.1.12     Transaction Costs. Borrower shall
have paid or reimbursed Lender for all title insurance premiums, recording and
filing fees or taxes, costs of environmental reports, Physical Conditions Reports,
appraisals and other reports, the fees and costs of Lender’s counsel and all
other third party out-of-pocket expenses incurred in connection with the
origination of the Loan.


3.1.13     Material Adverse Change. There shall
have been no material adverse change in the financial condition or business
condition of Borrower or the Property since the date of the most recent
financial statements delivered to Lender. The income and expenses of the
Property, the occupancy leases thereof, and all other features of the
transaction shall be as represented to Lender without material adverse change.
Neither Borrower, any of its constituent Persons, shall be the subject of any
bankruptcy, reorganization, or insolvency proceeding.


3.1.14     Leases and Rent Roll. Lender shall
have received copies of all tenant leases, certified copies of any tenant
leases as requested by Lender and certified copies of all ground leases
affecting the Property. Lender shall have received a current certified rent
roll of the Property, reasonably satisfactory in form and substance to Lender.


3.1.15     Subordination and Attornment. Lender
shall have received an appropriate instrument, in recordable form and
acceptable to Lender in its commercially reasonable discretion, subordinating
the Anchor Tenant Lease and including an agreement by Anchor Tenant to attorn
to Lender in the event of a foreclosure or delivery of a deed in lieu thereof.


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


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


3.1.18     Management Agreement. Lender shall
have received a certified copy of the Management Agreement with respect to the
Property which shall be satisfactory in form and substance to Lender. Lender
acknowledges that it has reviewed the Management Agreement, and as drafted,
such Management Agreement does not violate Borrower’s covenant that affiliated
agreements be on terms which are intrinsically fair, commercially reasonable
and are no less favorable to it than would be obtained in a comparable arm’s
length transaction with an unrelated third party.


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


3.1.20     Financial Statements. Lender shall
have received (a) a balance sheet with respect to the Property for the two most
recent Fiscal Years and statements of income and



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statements of cash flows
with respect to the Property for the three most recent Fiscal Years, each in
form and substance reasonably satisfactory to Lender or (b) such other
financial statements relating to the ownership and operation of the Property,
in form and substance reasonably satisfactory to Lender.


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


3.1.22     Environmental Insurance. If required
by Lender, Borrower shall have obtained a secured creditor environmental
insurance policy with respect to the Property, which shall be in form and
substance satisfactory to Lender. Any such policy shall have a term not less
than the term of the Loan. Borrower shall have provided to Lender evidence that
the premiums for such policy has been paid in full.


ARTICLE IV 

REPRESENTATIONS AND WARRANTIES


Section 4.1 Borrower
Representations. Borrower represents and warrants as of the date hereof and
as of the Closing Date that:


4.1.1       Organization. Borrower has been
duly organized and is validly existing and in good standing with requisite
power and authority to own the Property and to transact the businesses in which
it is now engaged. Borrower is duly qualified to do business and is in good
standing in each jurisdiction where it is required to be so qualified in
connection with the Property, businesses and operations. Borrower possesses all
rights, licenses, permits and authorizations, governmental or otherwise, necessary
to entitle it to own the Property and to transact the businesses in which it is
now engaged, and the sole business of Borrower is the ownership, management and
operation of the Property.


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


4.1.3       No Conflicts. The execution,
delivery and performance of this Agreement and the other Loan Documents by
Borrower will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance (other than pursuant to the Loan
Documents) upon any of the property or assets of Borrower pursuant to the terms
of any indenture, mortgage, deed of trust, loan agreement, partnership
agreement or other agreement or instrument to which Borrower is a party or by
which any of Borrower’s property or assets is subject, nor will such action
result in



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any violation of the
provisions of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over Borrower or any of
Borrower’s properties or assets, and any consent, approval, authorization,
order, registration or qualification of or with any court or any such
regulatory authority or other governmental agency or body required for the
execution, delivery and performance by Borrower of this Agreement or any other
Loan Documents has been obtained and is in full force and effect.


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


4.1.5       Agreements. Except such
instruments and agreements set forth as Permitted Exceptions in the Title
Insurance Policy, Borrower is not a party to any agreement or instrument or
subject to any restriction which might materially and adversely affect Borrower
or the Property, or Borrower’s business, properties or assets, operations or
condition, financial or otherwise. To Borrower’s knowledge, Borrower is not in
default in any material respect in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any agreement
or instrument to which it is a party or by which Borrower or the Property are
bound. Borrower has no material financial obligation under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which Borrower is a party or by which Borrower or the Property is otherwise
bound, other than (a) obligations incurred in the ordinary course of the
operation of the Property and (b) obligations under the Loan Documents.


4.1.6       Title. Borrower has good and
indefeasible fee simple title to the real property comprising part of the
Property and good title to the balance of the Property, free and clear of all
Liens whatsoever except the Permitted Encumbrances, such other Liens as are
permitted pursuant to the Loan Documents and the Liens created by the Loan
Documents. The Mortgage, when properly recorded in the appropriate records,
together with any Uniform Commercial Code financing statements required to be
filed in connection therewith, will create (a) a valid, perfected lien on the
Property, subject only to Permitted Encumbrances and the Liens created by the
Loan Documents and (b) perfected security interests in and to, and perfected
collateral assignment of, all personalty (including the Leases), all in
accordance with the terms thereof, in each case subject only to any applicable
Permitted Encumbrances, such other Liens as are permitted pursuant to the Loan
Documents and the Liens created by the Loan Documents. There are no claims for
payment for work, labor or materials affecting the Property which are due and
unpaid under the contracts pursuant to which such work or labor was performed
or materials provided which are or may become a lien prior to, or of equal
priority with, the Liens created by the Loan Documents.


4.1.7       Solvency; No Bankruptcy Filing.
Borrower (a) has not entered into the transaction or executed the Note, this
Agreement or any other Loan Documents with the actual intent to hinder, delay
or defraud any creditor and (b) received reasonably equivalent value in
exchange for its obligations under such Loan Documents. Giving effect to the
Loan, the fair



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saleable value of
Borrower’s assets exceeds and will, immediately following the making of the
Loan, exceed Borrower’s total liabilities, including, without limitation,
subordinated, unliquidated, disputed and contingent liabilities. The fair
saleable value of Borrower’s assets is and will, immediately following the
making of the Loan, be greater than Borrower’s probable liabilities, including
the maximum amount of its contingent liabilities on its debts as such debts
become absolute and matured. Borrower’s assets do not and, immediately
following the making of the Loan will not, constitute unreasonably small
capital to carry out its business as conducted or as proposed to be conducted.
Borrower does not intend to, and does not believe that it will, incur debt and
liabilities (including contingent liabilities and other commitments) beyond its
ability to pay such debt and liabilities as they mature (taking into account
the timing and amounts of cash to be received by Borrower and the amounts to be
payable on or in respect of obligations of Borrower). Except as expressly
disclosed to Lender in writing, no petition in bankruptcy has been filed
against Borrower, or to the best of Borrower’s knowledge, any constituent
Person in the last seven (7) years, and neither Borrower, nor to the best of
Borrower’s knowledge, any constituent Person in the last seven (7) years has
ever made an assignment for the benefit of creditors or taken advantage of any
insolvency act for the benefit of debtors. Neither Borrower nor any of its
constituent Persons are contemplating either the filing of a petition by it
under any state or federal bankruptcy or insolvency laws or the liquidation of
all or a major portion of Borrower’s assets or property, and Borrower has no
knowledge of any Person contemplating the filing of any such petition against
it or such constituent Persons.


4.1.8       Full and Accurate Disclosure. To
Borrower’s knowledge, no statement of fact made by Borrower in this Agreement
or in any of the other Loan Documents contains any untrue statement of a
material fact or omits to state any material fact necessary to make statements
contained herein or therein not misleading. There is no material fact presently
known to Borrower which has not been disclosed to Lender which adversely
affects, nor as far as Borrower can foresee, might adversely affect, the
Property or the business, operations or condition (financial or otherwise) of
Borrower.


4.1.9       No Plan Assets. Borrower is not an
“employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title
I of ERISA, and none of the assets of Borrower constitutes or will constitute “plan
assets” of one or more such plans within the meaning of 29 C.F.R. Section
2510.3-101. In addition, (a) Borrower is not a “governmental plan” within the
meaning of Section 3(32) of ERISA and (b) transactions by or with Borrower are
not subject to state statutes regulating investment of, and fiduciary obligations
with respect to, governmental plans similar to the provisions of Section 406 of
ERISA or Section 4975 of the Code currently in effect, which prohibit or
otherwise restrict the transactions contemplated by this Loan Agreement.


4.1.10     Compliance. To Borrower’s knowledge,
Borrower and the Property and the use thereof comply in all material respects
with all applicable Legal Requirements, including, without limitation, building
and zoning ordinances and codes. Borrower is not in default or violation of any
order, writ, injunction, decree or demand of any Governmental Authority. There
has not been committed by Borrower or, to Borrower’s knowledge, any other
Person in occupancy of or involved with the operation or use of the Property
any act or omission affording the federal government or any other Governmental
Authority the right of forfeiture as against the



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Property or any part
thereof or any monies paid in performance of Borrower’s obligations under any
of the Loan Documents.


4.1.11     Financial Information. All financial
data, including, without limitation, the statements of cash flow and income and
operating expense, that have been delivered to Lender in respect of the
Property (i) are, to the best of Borrower’s knowledge, true, complete and
correct in all material respects, (ii) accurately represent the financial
condition of the Property as of the date of such reports, and (iii) to the
extent prepared or audited by an independent certified public accounting firm,
have been prepared in accordance with accounting principles reasonably
acceptable to Lender, consistently applied throughout the periods covered,
except as disclosed therein; provided, however, that if any
financial data is delivered to Lender by any Person other than Borrower,
Indemnitor or any of their Affiliates, or if such financial data has been
prepared by or at the direction of any Person other than Borrower, Indemnitor
or any of their Affiliates, then the foregoing representations with respect to
such financial data shall be to the best of Borrower’s knowledge, after due
inquiry. Borrower does not have any contingent liabilities, liabilities for
taxes, unusual forward or long-term commitments or unrealized or anticipated
losses from any unfavorable commitments that are known to Borrower and reasonably
likely to have a materially adverse effect on the Property or the operation
thereof as an office building, except as referred to or reflected in said
financial statements. Since the date of such financial statements, there has
been no materially adverse change in the financial condition, operations or
business of Borrower from that set forth in said financial statements.


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


4.1.13     Federal Reserve Regulations. No part
of the proceeds of the Loan will be used for the purpose of purchasing or
acquiring any “margin stock” within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System or for any other purpose which would be
inconsistent with such Regulation U or any other Regulations of such Board of
Governors, or for any purposes prohibited by Legal Requirements or by the terms
and conditions of this Agreement or the other Loan Documents.


4.1.14     Utilities and Public Access. The
Property has rights of access to public ways and is served by water, sewer,
sanitary sewer and storm drain facilities adequate to service the Property for
its respective intended uses. All public utilities necessary or convenient to
the full use and enjoyment of the Property are located either in the public
right-of-way abutting the Property (which are connected so as to serve the
Property without passing over other property) or in recorded easements serving
the Property and such easements are set forth in and insured by the Title
Insurance Policy. All roads necessary for the use of the Property for their
current respective purposes have been completed and dedicated to public use and
accepted by all Governmental Authorities.


4.1.15     Not a Foreign Person. Borrower is
not a “foreign person” within the meaning of §1445(f)(3) of the Code.



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4.1.16              Separate Lots.
The Property is comprised of one (1) or more parcels which constitute a
separate tax lot or lots and does not constitute a portion of any other tax lot
not a part of the Property.


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


4.1.18              Enforceability.
The Loan Documents are not subject to any right of rescission, set-off,
counterclaim or defense by Borrower, including the defense of usury, nor would
the operation of any of the terms of the Loan Documents, or the exercise of any
right thereunder, render the Loan Documents unenforceable, and Borrower has not
asserted any right of rescission, set-off, counterclaim or defense with respect
thereto.


4.1.19              No Prior
Assignment. There is no prior assignment of the Leases or any portion of
the Rents by Borrower or any of its predecessors in interest, given as
collateral security which are presently outstanding.


4.1.20              Insurance.
Borrower has obtained and has delivered to Lender certified copies of all
insurance policies reflecting the insurance coverages, amounts and other
requirements set forth in this Agreement. To the best of Borrower’s knowledge,
no claims have been made under any such policy, and no Person, including
Borrower, has done, by act or omission, anything which would impair the
coverage of any such policy.


4.1.21              Use of Property.
The Property is used exclusively for office purposes and other appurtenant and
related uses.


4.1.22              Certificate of
Occupancy; Licenses. All certifications, permits, licenses and approvals,
including without limitation, certificates of completion and occupancy permits
required to be obtained by Borrower for the legal use, occupancy and operation
of the Property as an office building have been obtained and are in full force
and effect, and to the best of Borrower’s knowledge, after due inquiry, all
certifications, permits, licenses and approvals, including without limitation,
certificates of completion and occupancy permits required to be obtained by any
Person other than Borrower for the legal use, occupancy and operation of the Property
as an office building, have been obtained and are in full force and effect (all
of the foregoing certifications, permits, licenses and approvals are
collectively referred to as the “Licenses”).
Borrower shall and shall cause all other Persons to, keep and maintain all
licenses necessary for the operation of the Property as an office building. To
Borrower’s knowledge, the use being made of the Property is in conformity with
all certificates of occupancy issued for the Property.


4.1.23              Flood Zone.
To the best of Borrower’s knowledge, after due inquiry, no Improvements on the
Property are located in an area identified by the Federal Emergency Management
Agency as an area having special flood hazards.


4.1.24              Physical
Condition. Except as disclosed in the Physical Conditions Reports delivered
to Lender in connecting with this Loan, to Borrower’s knowledge, the



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Property, including, without limitation, all
buildings, improvements, parking facilities, sidewalks, storm drainage systems,
roofs, plumbing systems, HVAC systems, fire protection systems, electrical
systems, equipment, elevators, exterior sidings and doors, landscaping,
irrigation systems and all structural components, are in good condition, order
and repair in all material respects; there exists no structural or other
material defects or damages in the Property, whether latent or otherwise, and
Borrower has not received notice from any insurance company or bonding company
of any defects or inadequacies in the Property, or any part thereof, which would
adversely affect the insurability of the same or cause the imposition of
extraordinary premiums or charges thereon or of any termination or threatened
termination of any policy of insurance or bond.


4.1.25              Boundaries.
To the best of Borrower’s knowledge, after due inquiry, all of the improvements
which were included in determining the appraised value of the Property lie
wholly within the boundaries and building restriction lines of the Property,
and no improvements on adjoining properties encroach upon the Property, and no
easements or other encumbrances upon the Property encroach upon any of the
improvements, so as to affect the value or marketability of the Property except
those which are insured against by title insurance.


4.1.26              Leases. The
Property is not subject to any Leases other than the Anchor Tenant Lease (and
subleases permitted under the Anchor Tenant Lease) and the other Leases
identified on Schedule II hereof (the “Other Leases”)(with respect to
which Borrower has assigned to Anchor Tenant the right to collect and retain
all rent thereunder). No Person has any possessory interest in the Property or
right to occupy the same except under and pursuant to the provisions of the
Anchor Tenant Lease and the Other Leases. The Anchor Tenant Lease is in full
force and effect and to Borrower’s knowledge after inquiry, there are no
defaults thereunder by either party and there are no conditions that, with the
passage of time or the giving of notice, or both, would constitute defaults
thereunder. No Rent (including security deposits) has been paid more than one
(1) month in advance of its due date. All work to be performed by Borrower
under the Anchor Tenant Lease and each Other Lease has been performed as
required and has been accepted by the Anchor Tenant or any other applicable
Tenant, and any payments, free rent, partial rent, rebate of rent or other
payments, credits, allowances or abatements required to be given by Borrower to
Anchor Tenant has already been received by Anchor Tenant. There has been no prior
sale, transfer or assignment, hypothecation or pledge of any Lease or of the
Rents received therein which is outstanding. To Borrower’s knowledge after
inquiry, Anchor Tenant has not assigned the Anchor Tenant Lease or sublet all
or any portion of the premises demised thereby, nor does anyone except Anchor
Tenant and its employees occupy such leased premises (other than the tenants
under the Other Leases). Anchor Tenant does not have a right or option pursuant
to the Anchor Tenant Lease or otherwise to purchase all or any part of the
leased premises or the building of which the leased premises are a part other
than the right of first refusal described in Article 4 of the Anchor Tenant
Lease. Except as disclosed in the Environmental Report delivered to Lender in
connection herewith, to Borrower’s actual knowledge, no hazardous wastes or
toxic substances, as defined by applicable federal, state or local statutes,
rules and regulations, have been disposed, stored or treated by Anchor Tenant
on or about the leased premises nor does Borrower have any knowledge of Anchor
Tenant’s intention to use its leased premises for any activity which, directly
or indirectly, involves the use, generation, treatment, storage, disposal or
transportation of any petroleum product or any toxic or hazardous chemical,
material, substance or waste, except in either event, in compliance with



 35
 






 



applicable federal, state or local statues, rules and
regulations. The guaranty of the Anchor Tenant Lease executed by Anchor Lease
Guarantor is in full force and effect.


4.1.27              Survey. The
Survey for the Property delivered to Lender in connection with this Agreement
has been prepared in accordance with the provisions of Section 3.1.3(c) hereof,
and does not fail to reflect any material matter affecting the Property or the
title thereto.


4.1.28              Loan to Value.
The maximum principal amount of the Note does not exceed one hundred
twenty-five percent (125%) of the fair market value of the Property as set
forth on the appraisal of the Property delivered to Lender.


4.1.29              Filing and
Recording Taxes. All transfer taxes, deed stamps, intangible taxes or other
amounts in the nature of transfer taxes required to be paid by any Person under
applicable Legal Requirements currently in effect in connection with the
acquisition of the Property by Borrower have been paid or are simultaneously
being paid. All mortgage, mortgage recording, stamp, intangible or other
similar tax required to be paid by any Person under applicable Legal
Requirements currently in effect in connection with the execution, delivery,
recordation, filing, registration, perfection or enforcement of any of the Loan
Documents, including, without limitation, the Mortgage, have been paid, and,
under current Legal Requirements, the Mortgage is enforceable in accordance
with its terms by Lender (or any subsequent holder thereof).


4.1.30              Special Purpose
Entity/Separateness. (a) Until the Debt has been paid in full, Borrower
hereby represents, warrants and covenants that the Borrower is, shall be and
shall continue to be a Special Purpose Entity. If Borrower consists of more
than one Person, each such Person shall be a Special Purpose Entity.


(b) The representations,
warranties and covenants set forth in Section 4.1.30(a) shall survive for so
long as any amount remains payable to Lender under this Agreement or any other
Loan Document.


(c) Any and all of the
assumptions made in any Insolvency Opinion, including, but not limited to, any
exhibits attached thereto, will have been and shall be true and correct in all
respects, and Borrower will have complied and will comply with all of the
assumptions made with respect to it in any Insolvency Opinion. Each entity
other than Borrower with respect to which an assumption is made in any
Insolvency Opinion will have complied and will comply with all of the
assumptions made with respect to it in any such Insolvency Opinion.


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


4.1.32              Illegal Activity.
To Borrower’s knowledge, no portion of the Property has been or will be
purchased with proceeds of any illegal activity.


4.1.33              No Change in
Facts or Circumstances; Disclosure. All information submitted by Borrower
to Lender and in all financial statements, rent rolls, reports, certificates



 36
 






 



and other documents submitted in connection with the Loan
or in satisfaction of the terms thereof and all statements of fact made by
Borrower in this Agreement or in any other Loan Document, are accurate,
complete and correct in all material respects, provided, however, that if such
information was provided to Borrower by non-affiliated third parties, Borrower
represents that such information is, to the best of its knowledge after due
inquiry, accurate, complete and correct in all material respects. There has
been no material adverse change in any condition, fact, circumstance or event
that would make any such information inaccurate, incomplete or otherwise
misleading in any material respect or that otherwise materially and adversely
affects or might materially and adversely affect the Property or the business
operations or the financial condition of Borrower. Borrower has disclosed to
Lender all material facts and has not failed to disclose any material fact that
could cause any representation or warranty made herein to be materially
misleading.


4.1.34              Investment
Company Act. Borrower is not (a) an “investment company” or a company “controlled”
by an “investment company,” within the meaning of the Investment Company Act of
1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding
company” or an “affiliate” of either a “holding company” or a “subsidiary
company” within the meaning of the Public Utility Holding Company Act of 1935,
as amended; or (c) subject to any other federal or state law or regulation
which purports to restrict or regulate its ability to borrow money.


4.1.35              Principal Place
of Business and Organization. Borrower shall not change its principal place
of business set forth in the introductory paragraph of this Agreement without
first giving Lender thirty (30) days prior written notice. Borrower shall not
change the place of its organization as set forth in the introductory paragraph
of this Agreement without the consent of Lender, which consent shall not be
unreasonably withheld, conditioned or delayed. Upon Lender’s request, Borrower
shall execute and deliver additional financing statements, security agreements
and other instruments which may be necessary to effectively evidence or perfect
Lender’s security interest in the Property as a result of such change of
principal place of business or place of organization.


4.1.36              Embargoed Person.
As of the Closing Date, to the best of Borrower’s knowledge, (a) none of the
funds or other assets of Borrower constitute property of, or are beneficially
owned, directly or indirectly, by any Embargoed Person; (b) no Embargoed Person
has any interest of any nature whatsoever in Borrower with the result that the
investment in Borrower (whether directly or indirectly), is prohibited by law
or the Loan is in violation of law; and (c) none of the funds of Borrower have
been derived from any unlawful activity with the result that the investment in
Borrower (whether directly or indirectly), is prohibited by law or the Loan is
in violation of law.


Section 4.2 Survival
of Representations. Borrower agrees that all of the representations and
warranties of Borrower set forth in Section 4.1 and elsewhere in this Agreement
and in the other Loan Documents shall survive for so long as any amount remains
owing to Lender under this Agreement or any of the other Loan Documents by
Borrower. All representations, warranties, covenants and agreements made in
this Agreement or in the other Loan Documents by Borrower shall be deemed to
have been relied upon by Lender notwithstanding any investigation heretofore or
hereafter made by Lender or on its behalf.



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ARTICLE V

BORROWER COVENANTS


Section 5.1 Affirmative
Covenants. From the Closing Date and until payment and performance in full
of all obligations of Borrower under the Loan Documents or the earlier release
of the Lien of the Mortgage encumbering the Property (and all related
obligations) in accordance with the terms of this Agreement and the other Loan
Documents, Borrower hereby covenants and agrees with Lender that:


5.1.1                    Existence;
Compliance with Legal Requirements; Insurance. Borrower shall do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect its existence, rights, licenses, permits and franchises and comply with
all Legal Requirements applicable to it and the Property. Borrower shall not
commit, nor shall Borrower permit any other Person in occupancy of or involved
with the operation or use of the Property to commit, any act or omission
affording the federal government or any state or local government the right of
forfeiture as against the Property or any part thereof or any monies paid in
performance of Borrower’s obligations under any of the Loan Documents. Borrower
hereby covenants and agrees not to commit, permit or suffer to exist any act or
omission affording such right of forfeiture. Borrower shall at all times
maintain, preserve and protect all its franchises and trade names and preserve
all the remainder of its property used or useful in the conduct of its business
and shall keep the Property in good working order and repair, and from time to
time make, or cause to be made, all reasonably necessary repairs, renewals,
replacements, betterments and improvements thereto, all as more fully provided
in the Mortgage. Borrower shall keep the Property insured at all times by
financially sound and reputable insurers, to such extent and against such
risks, and maintain liability and such other insurance, as is more fully
provided in this Agreement. [Borrower shall operate,
or cause Anchor Tenant to operate, the Property (or any portion thereof) that
is the subject of the O&M Agreement in accordance with the terms and
provisions thereof in all material respects.] After prior
written notice to Lender, Borrower, at its own expense, may contest by
appropriate legal proceeding promptly initiated and conducted in good faith and
with due diligence, the validity of any Legal Requirement, the applicability of
any Legal Requirement to Borrower or the Property or any alleged violation of
any Legal Requirement, provided that (i) no Event of Default has occurred and
remains uncured; (ii) intentionally omitted; (iii) such proceeding shall be
permitted under and be conducted in accordance with the provisions of any
instrument to which Borrower is subject and shall not constitute a default thereunder
and such proceeding shall be conducted in accordance with all applicable
statutes, laws and ordinances; (iv) the Property or any part thereof or
interest therein will not be in danger of being sold, forfeited, terminated,
cancelled or lost; (v) Borrower shall promptly upon final determination
thereof comply with any such Legal Requirement determined to be valid or
applicable or cure any violation of any Legal Requirement; (vi) such proceeding
shall suspend the enforcement of the contested Legal Requirement against
Borrower or the Property; and (vii) Borrower shall furnish such security as may
be required in the proceeding, or as may be requested by Lender, to insure
compliance with such Legal Requirement, together with all interest and
penalties payable in connection therewith (provided, however, if Anchor Tenant
is conducting the contest pursuant to the Anchor Tenant Lease, and is not
required under the Anchor Tenant Lease to post any such security, then this
clause (vii) shall not apply). Lender may apply any such security, as necessary
to cause compliance with such Legal Requirement at any time when, in the
reasonable judgment of Lender, the validity, applicability or violation of



 38
 






 



such Legal Requirement is finally established or the
Property (or any part thereof or interest therein) shall be in danger of being
sold, forfeited, terminated, cancelled or lost.


5.1.2                    Taxes and
Other Charges. Borrower shall pay or cause to be paid all Taxes and Other
Charges now or hereafter levied or assessed or imposed against the Property or
any part thereof as the same become due and payable; provided, however,
Borrower’s obligation to directly pay to the appropriate taxing authority Taxes
shall be suspended for so long as Borrower escrows for Taxes pursuant to the terms
and provisions of Section 7.2 hereof. Borrower will deliver to Lender receipts
for payment or other evidence satisfactory to Lender that the Taxes and Other
Charges have been so paid or are not then delinquent no later than ten (10)
days prior to the date on which the Taxes and/or Other Charges would otherwise
be delinquent if not paid (provided, however, that Borrower is not required to
furnish such receipts for payment of Taxes in the event that such Taxes have
been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes
to be paid all Taxes and Other Charges and provides a copy of the receipt
evidencing the payment thereof to Lender, then Lender shall reimburse Borrower,
provided that there are then sufficient proceeds in the Tax and Insurance
Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2.
Upon written request of Borrower, if Lender has paid such Taxes pursuant to
Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes
have been paid. Borrower shall not suffer and shall promptly cause to be paid
and discharged any Lien or charge whatsoever which may be or become a Lien or
charge against the Property, and shall promptly pay for all utility services
provided to the Property. After prior written notice to Lender, Borrower, at
its own expense, may contest by appropriate legal proceeding, promptly
initiated and conducted in good faith and with due diligence, the amount or
validity or application in whole or in part of any Taxes or Other Charges,
provided that (i) Borrower is permitted to do so under the provisions of any
mortgage or deed of trust superior in lien to the Mortgage; (ii) such
proceeding shall be permitted under and be conducted in accordance with the
provisions of any other instrument to which Borrower is subject and shall not
constitute a default thereunder and such proceeding shall be conducted in
accordance with all applicable statutes, laws and ordinances; (iii) the
Property nor any part thereof or interest therein will be in danger of being
sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly
upon final determination thereof pay the amount of any such Taxes or Other
Charges, together with all costs, interest and penalties which may be payable in
connection therewith; (v) such proceeding shall suspend the collection of such
contested Taxes or Other Charges from the Property; and (vi) Borrower shall
furnish such security as may be required in the proceeding, or as may be
reasonably requested by Lender, to insure the payment of any such Taxes or
Other Charges, together with all interest and penalties thereon (provided,
however, if Anchor Tenant is conducting the contest pursuant to the Anchor
Tenant Lease, and is not required under the Anchor Tenant Lease to post any
such security, then this clause (vi) shall not apply). Lender may pay over any
such cash deposit or part thereof held by Lender to the claimant entitled
thereto at any time when, in the reasonable judgment of Lender, the entitlement
of such claimant is established.


5.1.3                    Litigation.
Borrower shall give prompt written notice to Lender of any litigation or
governmental proceedings pending or threatened against Borrower which might
materially adversely affect Borrower’s condition (financial or otherwise) or
business or the Property.



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


5.1.5                    Notice of
Default. Borrower shall promptly advise Lender of any material adverse
change in Borrower’s condition, financial or otherwise, or of the occurrence of
any Default or Event of Default of which Borrower has knowledge.


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


5.1.7                    Perform
Loan Documents. Borrower shall observe, perform and satisfy all the terms,
provisions, covenants and conditions of, and shall pay when due all costs, fees
and expenses to the extent required under the Loan Documents executed and
delivered by, or applicable to, Borrower.


5.1.8                    Insurance
Benefits. Borrower shall cooperate with Lender in obtaining for Lender the
benefits of any Insurance Proceeds lawfully or equitably payable in connection
with the Property, and Lender shall be reimbursed for any expenses incurred in
connection therewith (including reasonable attorneys’ fees and disbursements,
and the payment by Borrower of the expense of an appraisal on behalf of Lender
in case of a fire or other casualty affecting the Property or any part thereof)
out of such Insurance Proceeds.


5.1.9                    Further
Assurances. Borrower shall, at Borrower’s sole cost and expense:


(a)
furnish to Lender all instruments, documents, boundary surveys, footing or
foundation surveys, certificates, plans and specifications, appraisals, title
and other insurance reports and agreements, and each and every other document,
certificate, agreement and instrument required to be furnished by Borrower
pursuant to the terms of the Loan Documents or reasonably requested by Lender
in connection therewith;


(b)
execute and deliver to Lender such documents, instruments, certificates,
assignments and other writings, and do such other acts necessary or desirable,
to evidence, preserve and/or protect the collateral at any time securing or
intended to secure the obligations of Borrower under the Loan Documents, as
Lender may reasonably require; and


(c)
do and execute all and such further lawful and reasonable acts, conveyances and
assurances for the better and more effective carrying out of the intents and
purposes of this Agreement and the other Loan Documents, as Lender shall
reasonably require from time to time.


5.1.10              Intentionally
Omitted.


5.1.11              Financial
Reporting. (a) Borrower will keep and maintain or will cause to be kept and
maintained on a Fiscal Year basis, in accordance with the requirements for a
Special Purpose Entity set forth above, proper and accurate books, records and
accounts reflecting all of



 40
 






 



the financial affairs of Borrower and all items of
income and expense in connection with the operation on an individual basis of
the Property. Lender shall have the right from time to time at all times during
normal business hours upon reasonable notice to examine such books, records and
accounts at the office of Borrower or other Person maintaining such books,
records and accounts and to make such copies or extracts thereof as Lender
shall desire. After the occurrence and during the continuance of an Event of
Default, Borrower shall pay any costs and expenses incurred by Lender to
examine Borrower’s accounting records with respect to the Property, as Lender
shall reasonably determine to be necessary or appropriate in the protection of
Lender’s interest.


(b)
Borrower will furnish to Lender annually, within ninety (90) days following the
end of each Fiscal Year of Borrower, either (i) a complete copy of Borrower’s
annual financial statements audited by an accounting firm or other independent
certified public accountant reasonably acceptable to Lender in accordance with
the requirements for a Special Purpose Entity set forth above, or (ii) a
consolidated and annotated financial statement of Borrower and Sole Member (as
applicable), audited by an accounting firm or other independent certified
public accountant reasonably acceptable to Lender in accordance with the
requirements for a Special Purpose Entity set forth above, together with unaudited
financial statements relating to the Borrower and the Property. Such financial
statements for the Property for such Fiscal Year and shall contain statements
of profit and loss for Borrower and the Property and a balance sheet for
Borrower. Such statements shall set forth the financial condition and the
results of operations for the Property for such Fiscal Year, and shall include,
but not be limited to, amounts representing annual Net Cash Flow, Net Operating
Income, Gross Income from Operations and Operating Expenses. Borrower’s annual
financial statements shall be accompanied by (i) a comparison of the budgeted
income and expenses and the actual income and expenses for the prior Fiscal
Year, (ii) a certificate executed by the chief financial officer of Borrower or
Sole Member, as applicable, stating that each such annual financial statement
presents fairly the financial condition and the results of operations of
Borrower and the Property being reported upon and has been prepared in
accordance with accounting principles reasonably acceptable to Lender,
consistently applied, (iii) an unqualified opinion of an accounting firm or
other independent certified public accountant reasonably acceptable to Lender,
(iv) a certified rent roll containing current rent, lease expiration dates and
the square footage occupied by each tenant; (v) a schedule audited by such
independent certified public accountant reconciling Net Operating Income to Net
Cash Flow (the “Net Cash Flow Schedule”),
which shall itemize all adjustments made to Net Operating Income to arrive at
Net Cash Flow deemed material by such independent certified public accountant.
Together with Borrower’s annual financial statements, Borrower shall furnish to
Lender an Officer’s Certificate certifying as of the date thereof whether there
exists an event or circumstance which constitutes a Default or Event of Default
under the Loan Documents executed and delivered by, or applicable to, Borrower,
and if such Default or Event of Default exists, the nature thereof, the period
of time it has existed and the action then being taken to remedy the same.


(c)
Borrower will furnish, or cause to be furnished, to Lender on or before forty
five (45) days after the end of each calendar quarter the following items,
accompanied by a certificate of the chief financial officer of Borrower or Sole
Member, as applicable, stating that such items are true, correct, accurate, and
complete and fairly present the financial condition and results of the
operations of Borrower and the Property (subject to normal year-end
adjustments)



 41
 






 



as applicable: (i) a rent roll for the subject month
accompanied by an Officer’s Certificate with respect thereto; (ii) quarterly
and year-to-date operating statements (including Capital Expenditures) prepared
for each calendar quarter, noting Net Operating Income, Gross Income from
Operations, and Operating Expenses (not including any contributions to the
Replacement Reserve Fund, and other information necessary and sufficient to
fairly represent the financial position and results of operation of the
Property during such calendar month, and containing a comparison of budgeted
income and expenses and the actual income and expenses together with a detailed
explanation of any variances of five percent (5%) or more between budgeted and
actual amounts for such periods, all in form satisfactory to Lender; (iii) a
calculation reflecting the annual Debt Service Coverage Ratio for the
immediately preceding twelve (12) month period as of the last day of such month
accompanied by an Officer’s Certificate with respect thereto; and (iv) a Net
Cash Flow Schedule (such Net Cash Flow for the Borrower may be unaudited if it
is certified by an officer of the Borrower). In addition, such certificate
shall also be accompanied by a certificate of the chief financial officer of
Borrower or Sole Member stating that the representations and warranties of
Borrower set forth in Section 4.1.30(a) are true and correct as of the date of
such certificate.


(d) For the partial year
period commencing on the Closing Date, and for each Fiscal Year thereafter,
Borrower shall submit to Lender an Annual Budget not later than thirty (30)
days after the commencement of such period or Fiscal Year in form reasonably
satisfactory to Lender.


(e) In the event that,
Borrower must incur an extraordinary operating expense or capital expense not
set forth in the Approved Annual Budget (each an “Extraordinary Expense”), then
Borrower shall promptly deliver to Lender a reasonably detailed explanation of
such proposed Extraordinary Expense for Lender’s approval.


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


A balance sheet with
respect to the Property for the two most recent fiscal years, meeting the
requirements of Section 210.3-01 of Regulation S-X of the Securities Act and
statements of income and statements of cash flows with respect to the Property
for the three most recent fiscal years, meeting the requirements of Section
210.3-02 of Regulation S-X, and, to the extent that such balance sheet is more
than one hundred thirty-five (135) days old as of the date of the document in
which such financial statements are included, interim financial statements of
the Property meeting the requirements of Section 210.3-01 and 210.3-02 of
Regulation S-X (all of such financial statements, collectively, the “Standard
Statements”); provided, however, that if the Property (other than properties
that are hotels, nursing homes, or other properties that would be deemed to
constitute a business and not real estate under Regulation S-X or



 42
 






 



other legal requirements) that has been acquired by
Borrower from an unaffiliated third party (such Property, “Acquired Property”),
as to which the other conditions set forth in Section 210.3-14 of Regulation
S-X for provision of financial statements in accordance with such Section have
been met, in lieu of the Standard Statements otherwise required by this
Section, Borrower shall instead provide the financial statements required by
such Section 210.3-14 of Regulation S-X (“Acquired Property Statements”).


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


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


Within ten (10) Business
Days after notice from Lender in connection with the Securitization of this
Loan, such additional financial statements, such that, as of the date (each, an
“Offering Document Date”) of each Disclosure Document, Borrower shall have
provided Lender with all financial statements as described in subsection (f)(i)
above; provided that the fiscal year and interim periods for which such
financial statements shall be provided shall be determined as of such Offering
Document Date.


(g) If requested by
Lender, Borrower shall provide Lender, promptly upon request, with summaries of
the financial statements referred to in Section 5.1.1l(f) hereof if, at the
time a Disclosure Document is being prepared for a Securitization, it is
expected that the principal amount of the Loan and any Affiliated Loans at the
time of such Securitization may, or if the principal amount of the Loan and any
Affiliated Loans at any time during which the Loan and any Affiliated Loans are
included in a Securitization does, equal or exceed ten percent (10%) (but is
less than twenty percent (20%)) of the aggregate principal amount of all
mortgage loans included or expected to be included, as applicable, in a Securitization.
Such summaries shall meet the requirements for “summarized financial
information,” as defined in Section 210.1-02(bb) of Regulation S-X, or such
other requirements as may be determined to be necessary or appropriate by
Lender.


(h) All financial statements
provided by Borrower hereunder pursuant to Section 5.1.11(f) and (g) hereof
shall be prepared in accordance with GAAP, and shall meet the requirements of
Regulation S-X and other applicable legal requirements. All financial
statements referred to in Sections 5.1.1l(f)(i) and 5.1.11(f)(iii) above shall
be audited by



 43
 






 



independent accountants of Borrower acceptable to
Lender in accordance with Regulation S-X and all other applicable legal
requirements, shall be accompanied by the manually executed report of the
independent accountants thereon, which report shall meet the requirements of
Regulation S-X and all other applicable legal requirements, and shall be
further accompanied by a manually executed written consent of the independent
accountants, in form and substance acceptable to Lender, to the inclusion of
such financial statements in any Disclosure Document and any Exchange Act
Filing and to the use of the name of such independent accountants and the
reference to such independent accountants as “experts” in any Disclosure
Document and Exchange Act Filing, all of which shall be provided at the same
time as the related financial statements are required to be provided. All
financial statements (audited or unaudited) provided by Borrower under Section
5.1.11(f) and (g) shall be accompanied by an Officer’s Certificate, which shall
state that such financial statements meet the requirements set forth in the
first sentence of this Section 5.1.11(h).


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


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


(k) Borrower shall furnish
to Lender, within ten (10) Business Days after request (or as soon thereafter
as may be reasonably possible), such further detailed information with respect
to the operation of the Property and the financial affairs of Borrower as may
be reasonably requested by Lender.


(1) Borrower shall
furnish to Lender, within ten (10) Business Days after Lender’s request (or as
soon thereafter as may be reasonably possible), financial and sales information
from any Tenant designated by Lender (to the extent such financial and sales
information is required to be provided under the applicable Lease and same is
received by Borrower after request therefor).


(m) Borrower will cause
Indemnitor to furnish to Lender annually, within one hundred twenty (120) days
following the end of each Fiscal Year of Indemnitor, financial statements
audited by an independent certified public accountant, which shall include an
annual balance sheet and profit and loss statement of Indemnitor, in the form
reasonably required by Lender.



 44
 






 



(n) Any reports,
statements or other information required to be delivered under this Agreement
shall be delivered (i) in paper form, (ii) on a diskette, and (iii) if
requested by Lender and within the capabilities of Borrower’s data systems
without change or modification thereto, in electronic form and prepared using a
Microsoft Word for Windows or WordPerfect for
Windows files (which files may be prepared using a spreadsheet program and
saved as word processing files).


5.1.12              Business and
Operations. Borrower will continue to engage in the businesses presently
conducted by it as and to the extent the same are necessary for the ownership,
maintenance, management and operation of the Property. Borrower will qualify to
do business and will remain in good standing under the laws of each
jurisdiction as and to the extent the same are required for the ownership,
maintenance, management and operation of the Property.


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


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


5.1.15              Estoppel
Statement. (a) After request by Lender, Borrower shall within ten (10) days
furnish Lender with a statement, duly acknowledged and certified, setting forth
(i) the amount of the original principal amount of the Note, (ii) the unpaid
principal amount of the Note, (iii) the applicable interest rate of the Note,
(iv) the date installments of interest and/or principal were last paid, (v) any
offsets or defenses to the payment of the Debt, if any, and (vi) that the Note,
this Agreement, the Mortgage and the other Loan Documents are valid, legal and binding
obligations and have not been modified or if modified, giving particulars of
such modification.


(b)
Borrower shall use commercially reasonable efforts to deliver to Lender upon request,
estoppel certificates from Anchor Tenant (and/or any replacement tenant leasing
space at the Property from Borrower) and Anchor Lease Guarantor in form and
substance reasonably



 45
 






 



satisfactory to Lender provided that Borrower shall
not be required to deliver such certificates more
frequently than two (2) times in any calendar year.


(c)
Within thirty (30) days of request by Borrower, Lender shall deliver to Borrower a statement setting forth the items
described at (a)(i), (ii), (iii) and (iv) of this Section 5.1.15.


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


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


5.1.18              Confirmation of
Representations. Borrower shall deliver, in connection with any
Securitization, (a) one or more Officer’s Certificates certifying as to the
accuracy of all representations made by Borrower in the Loan Documents as of
the date of the closing of such Securitization, and (b) certificates of the
relevant Governmental Authorities in all relevant jurisdictions indicating the
good standing and qualification of Borrower and its member as of the date of
the Securitization.


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


5.1.20              Leasing
Matters. Any Leases with respect
to the Property written after the Closing
Date for more than the Relevant Leasing Threshold square footage shall be subject
to the prior written approval of
Lender, which approval may be given or withheld in the sole discretion of Lender. Lender shall approve or disapprove any
such Lease other than a Lease for all or substantially all of the Property
within ten (10) Business Days of Lender’s receipt of a final execution
draft of such Lease (including all exhibits, schedules, supplements, addenda or
other agreements relating thereto) and a
written notice from Borrower requesting Lender’s approval to such Lease, and such Lease shall be deemed
approved, if Lender does not disapprove such Lease within said ten (10)
Business Day period provided such
written notice conspicuously states, in large bold type, that “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THE
LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) BUSINESS DAYS OF
LENDER’S RECEIPT OF SUCH LEASE AND
WRITTEN NOTICE”. Borrower
shall furnish Lender with executed copies
of all Leases. All renewals of Leases and all proposed Leases shall provide for
rental rates comparable to existing
local market rates (unless such rental rates are otherwise set forth in the Leases executed prior to the Closing Date).
All proposed Leases shall be on commercially



 46
 






 



reasonable terms and shall not contain any terms which
would materially affect Lender’s rights under the Loan Documents. All Leases
executed after the Closing Date shall provide that they are subordinate to the Mortgage encumbering the Property and that the
tenant thereunder agrees to attorn to Lender or any purchaser at a sale by
foreclosure or power of sale. Borrower (i) shall observe and perform the obligations imposed upon the lessor under the
Leases in a commercially reasonable manner; (ii) shall enforce the terms,
covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed in a
commercially reasonable manner and
in a manner not to impair the value of the Property involved except that no termination by Borrower or acceptance of surrender
by a tenant of any Lease shall be permitted unless by reason of a tenant default and then only in a commercially
reasonable manner to preserve and protect the Property provided, however,
that no such termination or surrender of any Lease covering more than
the Relevant Leasing Threshold will be permitted without the written consent of Lender which consent may be
withheld in the sole discretion of Lender; (iii) shall not collect any of the rents more than one (1) month in advance
(other than security deposits); (iv)
shall not execute any other assignment of lessor’s interest in the Leases or
the Rents (except as contemplated by
the Loan Documents); (v) shall not alter, modify or change the terms of the Leases in a manner inconsistent with
the provisions of the Loan Documents without the prior written consent
of Lender, which consent may be withheld in the sole discretion of Lender, provided, however, with respect to a
proposed modification or amendment to the Anchor Tenant Lease, Lender shall have fifteen (15) Business Days after
Borrower’s delivery of its request
for consent (WHICH CLEARLY SHALL STATE IN
BOLD-FACE TYPE THAT THE FAILURE TO RESPOND WITHIN FIFTEEN (15) BUSINESS DAYS WILL
RESULT IN DEEMED CONSENT UPON FAILURE
TO RESPOND WITHIN FIVE (5) BUSINESS
DAYS AFTER A “FAILURE TO RESPOND” SECOND NOTICE), together with preliminary drawings and specifications for such Alterations,
within which Lender may grant or not grant Borrower’s request for
consent. If Lender shall not have responded to Borrower within such 15-Business Day period, Borrower may give a second
notice WHICH CLEARLY SHALL STATE IN BOLD-FACE TYPE THAT THE FAILURE
TO RESPOND WITHIN FIVE (5) BUSINESS DAYS
SHALL BE DEEMED CONSENT. If
Lender shall not, within five (5) Business Days after such second
notice, notify Borrower that such consent will not be granted, such consent
shall be deemed to have been granted; and (vi) shall execute and deliver at the request of Lender all such further
assurances, confirmations and assignment in connection with the Leases as
Lender shall from time to time reasonably require. Notwithstanding the
foregoing, Borrower may, without the prior written consent of Lender, terminate
any Lease which demises less than the Relevant Leasing Threshold under any of
the following circumstances: (i) the tenant
under said Lease is in default beyond any applicable grace and cure
period, and Borrower has the right to terminate such Lease; (ii) such
termination is permitted by the terms of
the Lease in question and Borrower has secured an obligation from a third party to lease the space under the Lease to
be terminated at a rental equal to or higher than the rental due under the Lease to be terminated;
and (iii) if the tenant under the Lease to be terminated, has executed a
right under said Lease to terminate its Lease upon payment of a termination fee to Borrower, and has in fact
terminated its Lease and paid said fee, Borrower may accept said
termination. In addition, the requirements set forth in this Section 5.1.20
shall not apply to any permitted sublease
by Anchor Tenant pursuant to the terms of the Anchor Tenant Lease.



 47














 


5.1.21 Alterations.
Subject to the rights of tenants to make alterations pursuant to the terms of
the Anchor Tenant Lease, Borrower shall obtain Lender’s prior written consent
to any alterations to any Improvements, which consent shall not be unreasonably
withheld or delayed except with respect to alterations that may have a material
adverse effect on Borrower’s financial condition, the value of the Property or
the Net Operating Income. Notwithstanding the foregoing, Lender’s consent shall
not be required in connection with any alterations that will not have a
material adverse effect on Borrower’s financial condition, the value of the
Property or the Net Operating Income, provided that such alterations are made
in connection with (a) tenant improvement work performed pursuant to the terms
of any Lease executed on or before the Closing Date, (b) tenant improvement
work performed pursuant to the terms and provisions of a Lease and not
adversely affecting any structural component of any Improvements, any utility
or HVAC system contained in any Improvements or the exterior of any building
constituting a part of any Improvements, (c) alterations performed in
connection with the restoration of the Property after the occurrence of a
casualty in accordance with the terms and provisions of this Agreement or (d)
any structural alteration which costs less than $50,000.00 in the aggregate for
all components thereof which constitute such alteration or any non-structural
alteration which costs less than $100,000.00 in the aggregate for all
components thereof which constitute such alteration. If the total unpaid
amounts due and payable with respect to alterations to the Improvements at the
Property (other than such amounts to be paid or reimbursed by tenants under the
Leases) shall at any time equal or exceed $500,000.00 (the “Threshold Amount”), Borrower, upon
Lender’s request, shall promptly deliver to Lender as security for the payment
of such amounts and as additional security for Borrower’s obligations under the
Loan Documents any of the following: (A) cash, (B) U.S. Obligations, (C) other
securities having a rating acceptable to Lender and that the applicable Rating
Agencies have confirmed in writing will not, in and of itself, result in a
downgrade, withdrawal or qualification of the initial, or, if higher, then
current ratings assigned in connection with any Securitization, or (D) a
completion bond or letter of credit issued by a financial institution having a
rating by Standard & Poor’s
Ratings Group of not less than A-1+ if the term of such bond or letter of
credit is no longer than three (3) months or, if such term is in excess of
three (3) months, issued by a financial institution having a rating that is
acceptable to Lender and that the applicable Rating Agencies have confirmed in
writing will not, in and of itself, result in a downgrade, withdrawal or
qualification of the initial, or, if higher, then current ratings assigned in
connection with any Securitization. Such security shall be in an amount equal
to the excess of the total unpaid amounts with respect to alterations to the
Improvements on the Property (other than such amounts to be paid or reimbursed
by tenants under the Leases) over the Threshold Amount and, if cash, may be
applied from time to time, at the option of Borrower, to pay for such
alterations. At the option of Lender, following the occurrence and during the
continuance of an Event of Default, Lender may terminate any of the alterations
and use the deposit to restore the Property to the extent necessary to prevent
any material adverse effect on the value of the Property. With respect to
Alterations for which Borrower must obtain the consent of Lender pursuant to
the terms of this Agreement, Lender shall have fifteen (15) Business Days after
Borrower’s delivery of its request for consent (WHICH CLEARLY SHALL STATE IN BOLD-FACE TYPE THAT THE FAILURE TO RESPOND
WITHIN FIFTEEN (15) BUSINESS DAYS WILL RESULT IN DEEMED CONSENT UPON FAILURE TO
RESPOND WITHIN FIVE (5) BUSINESS DAYS AFTER A “FAILURE TO RESPOND” SECOND
NOTICE), together with preliminary drawings and specifications for
such Alterations, within which Lender may grant or not grant



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Borrower’s request
for consent. If Lender shall not have responded to Borrower within such
15-Business Day period, Borrower may give a second notice WHICH CLEARLY SHALL STATE IN BOLD-FACE TYPE THAT THE
FAILURE TO RESPOND WITHIN FIVE (5) BUSINESS DAYS SHALL BE DEEMED CONSENT. If
Lender shall not, within five (5) Business Days after such second notice,
notify Borrower that such consent will not be granted, such consent shall be
deemed to have been granted.


5.1.22 Intentionally
Omitted.


5.1.23 Intentionally
Omitted.


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


5.2.1 Operation of
Property. Borrower shall not, without the prior consent of Lender,
terminate the Management Agreement or otherwise replace the Manager or enter
into any other management agreement with respect to the Property unless the
Manager is in default thereunder beyond any applicable grace or cure period, in
which event no consent by Lender shall be required. Lender agrees that its
consent will not be unreasonably withheld, delayed or conditioned provided that
the Person chosen by Borrower as the replacement Manager is a Qualifying
Manager and provided further that Borrower shall deliver an acceptable
non-consolidation opinion covering such replacement Manager if such Person was
not covered by such opinion delivered at the closing of the Loan.


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


(i) Permitted Encumbrances;


(ii) Liens created by or
related to Indebtedness permitted pursuant to the Loan Documents; and


(iii) Liens for Taxes or
Other Charges not yet due (or that Borrower is contesting in accordance with
the terms of Section 5.1.2 hereof).


5.2.3 Dissolution.
Borrower shall not (a) engage in any dissolution, liquidation or consolidation
or merger with or into any other business entity, (b) engage in any business
activity not related to the ownership and operation of the Property, (c)
transfer, lease or sell, in one transaction or any combination of transactions,
the assets or all or substantially all of the properties or assets of Borrower
except to the extent permitted by the Loan Documents, (d) modify, amend, waive
or terminate its organizational documents or its qualification and good
standing in any jurisdiction or (e) cause the Sole Member to (i) dissolve, wind
up or liquidate or take any action, or omit to take an action, as a result of
which the Sole Member would be dissolved, wound up or liquidated in whole or in
part, or (ii) amend, modify, waive or terminate



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the certificate of limited partnership or partnership
agreement of the Sole Member, in each case, without obtaining the prior written
consent of Lender or Lender’s designee.


5.2.4 Change in
Business. Borrower shall not enter into any line of business other than the
ownership and operation of the Property, or make any material change in the
scope or nature of its business objectives, purposes or operations, or
undertake or participate in activities other than the continuance of its
present business.


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


5.2.6 Affiliate
Transactions. Borrower shall not enter into, or be a party to, any
transaction with an Affiliate of Borrower or any of the partners of Borrower
except in the ordinary course of business and on terms which are fully
disclosed to Lender in advance and are no less favorable to Borrower or such
Affiliate than would be obtained in a comparable arm’s-length transaction with
an unrelated third party.


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


5.2.8 Assets.
Borrower shall not purchase or own any properties other than the Property owned
by Borrower as of the Closing Date as reflected in the applicable Title
Insurance Policy.


5.2.9 Debt.
Borrower shall not create, incur or assume any Indebtedness other than the Debt
except to the extent expressly permitted hereby.


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


5.2.11 Intentionally
Omitted.


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


(b) Borrower
further covenants and agrees to deliver to Lender such certifications or other
evidence from time to time throughout the term of the Loan, as requested by
Lender in its sole discretion, that (A) Borrower is not and does not maintain
an “employee benefit plan” as



 50
 






 



defined in Section 3(3) of ERISA, which is subject to
Title I of ERISA, or a “governmental plan” within the meaning of Section 3(3)
of ERISA; (B) Borrower is not subject to state statutes regulating investments
and fiduciary obligations with respect to governmental plans; and (C) one or
more of the following circumstances is true:


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


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


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


5.2.13 Transfers.
Unless such action is permitted by the provisions of this Section 5.2.13,
Borrower agrees that it will not (i) sell, assign, convey, transfer or
otherwise dispose of its interests in the Property or any part thereof, (ii)
permit any owner, directly or indirectly, of an ownership interest in the
Property, to transfer such interest, whether by transfer of stock or other
interest in Borrower or any entity, or otherwise, (iii) incur Indebtedness
(other than the Indebtedness permitted pursuant to the terms of this
Agreement), (iv) mortgage, hypothecate or otherwise encumber or grant a
security interest in the Property or any part thereof, (v) sell, assign,
convey, transfer, mortgage, encumber, grant a security interest in, or
otherwise dispose of any direct or indirect ownership interest in Borrower, or
permit any owner of an interest in Borrower to do the same, or (vi) file a
declaration of condominium with respect to the Property (any of the foregoing
transactions, a “Transfer”). For purposes hereof, a “Transfer” shall not
include (A) any issuance, sale or transfer of interests in Sole Member or any
successor entity resulting from any merger permitted hereunder, (B) transfer by
devise or descent or by operation of law upon the death of a member of
Borrower, or (C) the merger of Sole Member with any of the following entities:
Inland Retail Real Estate Trust, Inc., a Maryland corporation, Inland Real
Estate Corporation, a Maryland corporation, Inland Real Estate Investment
Corporation, a Delaware corporation, Inland American Real Estate Trust, Inc., a
Maryland corporation, Inland Western Retail Estate Trust, Inc., a Maryland
corporation, any other real estate investment trust sponsored by Inland Real
Estate Investment Corporation, or any other entity composed entirely of any of
the foregoing; provided, however, (i) Lender shall receive not
less than thirty (30) days prior written notice of any such proposed merger,
(ii) the net worth of the entity surviving such merger shall equal or exceed
the net worth of Sole Member immediately prior to such merger, and (iii)
immediately following such merger, the entity surviving the merger shall be
publicly traded.


(a) At any time other
than during the Assumption Lockout Period, Lender shall not withhold its
consent to a Transfer of the Property, provided that the following conditions
are satisfied:


(1)                     the
transferee of the Property shall be a Qualified Entity and a Special Purpose
Entity (the “Transferee”) which at the time of such transfer will be in
compliance with the covenants contained in Section 5.1.1 and the



 51
 






 



representations contained in 4.1.30 hereof and which
shall have assumed in writing (subject to the terms of Section 9.4 hereof) and
agreed to comply with all the terms, covenants and conditions set forth in this
Loan Agreement and the other Loan Documents, expressly including the covenants
contained in Section 5.1.1 and the representations contained in 4.1.30 hereof;


(2)                     if
requested by Lender, Borrower shall deliver confirmation in writing from the
Rating Agencies that such proposed Transfer will not cause a downgrading,
withdrawal or qualification of the then current rating of any securities issued
pursuant to such Securitization;


(3)                     if
Manager does not act as manager of the transferred Property then the manager of
the Property must be a Qualifying Manager;


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


(5)                     Borrower
shall deliver, at its sole cost and expense, an endorsement to the existing
title policy insuring the Mortgage, as modified by the assumption agreement, as
a valid first lien on the Property and naming the Transferee as owner of the
fee estate of the Property, which endorsement shall insure that, as of the date
of the recording of the assumption agreement, the Property shall not be subject
to any additional exceptions or liens other than those contained in the title
policy issued on the date hereof, or otherwise permitted by Lender


(6)                     Transferee
shall deliver opinions regarding its existence, authority and enforceability,
and if required or requested by any of the Rating Agencies, an Additional
Insolvency Opinion and a fraudulent conveyance opinion which in each case may
be relied upon by the holder of the Note, the Ratings Agencies and their
respective counsel, agents and representatives with respect to the proposed
transaction, including the Transferee, which opinion shall be acceptable to
Lender in its reasonable discretion;


(7)                     Borrower
shall have paid (A) an assumption fee equal to one percent (1.0%) of the then
outstanding principal balance of the Loan, and (B) the reasonable and customary
third-party expenses (including reasonable attorneys’ fees and disbursements)
actually incurred by Lender in connection with such Transfer, provided, however,
no assumption fee shall be required for a Transfer of the Property to a
Transferee acceptable to Lender in connection with a joint venture between Sole
Member or Inland American Real Estate Trust, Inc. and a Qualified Entity,
provided (x) Sole Member, or an Affiliate wholly-owned (directly or indirectly)
by Sole Member, owns at least one percent (1.0%) of the ownership interests in
such Transferee, and for which (y) Sole Member, or an Affiliate wholly-owned
(directly or indirectly) by Sole Member is the managing entity and otherwise
maintains operational and managerial control of such



 52
 






 



Transferee, and (z) Sole
Member continues to be Indemnitor, and provided further that Borrower shall pay
all of Lender’s reasonable and customary third-party expenses (including
reasonable attorneys’ fees and disbursements) actually incurred by Lender in
connection with such Transfer and a processing fee determined pursuant to the
following schedule:


	
  Retained
  interest

  	
   

  	
  Processing Fee

  
	
   

  	
   

  	
   

  
	
  At least twenty
  percent (20%)

  	
   

  	
  $5,000

  
	
   

  	
   

  	
   

  
	
  At least ten
  percent (10%), but less than twenty percent (20%)

  	
   

  	
  $10,000

  
	
   

  	
   

  	
   

  
	
  At least one
  percent (1%), but less than ten percent (10%)

  	
   

  	
  The greater of $15,000 and one-quarter of one
  percent (0.25%) of the then outstanding principal balance of the Loan for the
  first such Transfer, and one percent (1%) of the then outstanding principal
  balance of the Loan for each subsequent Transfer

  



 


Lender shall approve or disapprove any proposed
Transfer governed by this Section 5.2.13(a) within thirty (30) days of Lender’s
receipt of a written notice from Borrower requesting Lender’s approval,
provided such notice includes all information necessary to make such decision,
and further provided that such written notice from Borrower shall conspicuously
state, in large bold type, that “PURSUANT TO
SECTION 5.2.13 OF THE LOAN AGREEMENT, A RESPONSE IS REQUIRED WITHIN THIRTY (30)
DAYS OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”. If Lender fails to
disapprove any such matter within such period, Borrower shall provide a second
written notice requesting approval, which written notice shall conspicuously
state, in large bold type, that “PURSUANT TO
SECTION 5.2.13 OF THE LOAN AGREEMENT, THE MATTER DESCRIBED HEREIN SHALL BE
DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) DAYS
OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”. Thereafter, if Lender
does not disapprove such matter within said ten (10) day period such matter
shall be deemed approved.


(b) At any time other
than during the Assumption Lockout Period, Lender shall not withhold its
consent to, and shall not charge an assumption fee in connection with a
Transfer of up to, in the aggregate, ninety-nine percent (99%) of the direct or
indirect ownership interests in Borrower, provided that (A) if such
Transfer exceeds forty-nine percent (49.0%) of the direct or indirect ownership
interests in Borrower, such Transfer is to a Qualified Entity, (B) Sole Member,
or an Affiliate wholly-owned (directly or indirectly) by Sole Member, maintains
operational and managerial control of Borrower, (C) Sole Member continues to be
Indemnitor,



 53
 






 



and (D) Borrower shall
pay all of Lender’s reasonable and customary third-party expenses (including reasonable attorneys’ fees and
disbursements) actually incurred by Lender in connection with such Transfer and a processing fee determined pursuant
to the table set forth in Section
5.2.13(b), above. If required or requested by any of the Rating Agencies,
Borrower shall deliver a substantive
non-consolidation opinion with respect to any party not now owning more than 49% of the ownership interests in Borrower
acquiring more than 49% of the ownership interests in Borrower.


(c)
Notwithstanding anything in this Section 5.2.13 to the contrary, at any
time other than during the Assumption
Lockout Period, Borrower shall be permitted to Transfer the entire Property in a single transaction to one
newly-formed Special Purpose Entity which shall be wholly-owned subsidiary of Sole Member (“Permitted Affiliate Transferee”)
which shall be approved by Lender in
its reasonable discretion (“Permitted
Affiliate Transfer”), provided (1) no Event of Default shall have occurred and be
continuing, (2) the creditworthiness of Sole Member has not deteriorated, in the sole discretion of Lender, from the
Closing Date to the date of the
proposed Transfer, and (3) Borrower shall have paid all reasonable and
customary third party expenses (including reasonable attorneys’ fees and
disbursements) actually incurred by Lender
in connection with such Transfer (but not any assumption or processing fee).


(d) Borrower, without the consent of Lender, may
grant easements, restrictions, covenants,
reservations and rights of way in the ordinary course of business for access,
parking, water and sewer lines, telephone and telegraph lines, electric lines
and other utilities or for other similar
purposes, and may enter into easements with respect to the skywalk appurtenant
to the Property, rooftop telecommunications equipment, and the use of
existing and future cables within the
Property, provided that no transfer, conveyance or encumbrance shall materially
impair the utility and operation of the Property or materially adversely
affect the value of the Property or the Net
Operating Income of the Property. If Borrower shall receive any consideration in connection with any of said
described transfers or conveyances, Borrower shall have the right to use any such proceeds in
connection with any alterations performed in connection therewith, or required thereby. In connection with any
transfer, conveyance or encumbrance
permitted above, the Lender shall execute and deliver any instrument reasonably
necessary or appropriate to evidence its consent to said action or to
subordinate the Lien of the Mortgage
to such easements, restrictions, covenants, reservations and rights of way or
other similar grants upon receipt by
the Lender of: (A) a copy of the instrument of transfer; and (B) an Officer’s
Certificate stating with respect to any transfer described above, that such
transfer does not materially impair
the utility and operation of the Property or materially reduce the value of the Property or the Net Operating Income of the
Property.


ARTICLE VI 

INSURANCE; CASUALTY; CONDEMNATION


Section 6.1 Insurance.
(a) Borrower shall obtain and maintain, or shall cause Anchor Tenant to
maintain, insurance for Borrower and the Property providing at least the following coverages:


(i)      comprehensive
all risk insurance on the Improvements and the Personal Property, including
contingent liability from Operation of Building Laws, Demolition



 54
 






 



Costs and Increased Cost of Construction Endorsements,
in each case (A) in an amount equal to one
hundred percent (100%) of the “Full Replacement Cost,” which for purposes of
this Agreement shall mean actual replacement value (exclusive of costs of
excavations, foundations, underground utilities and footings) with a
waiver of depreciation; (B) containing an
agreed amount endorsement with respect to the Improvements and Personal
Property waiving all co-insurance provisions; (C) providing for no deductible
in excess of one percent (1%) of Full Replacement Cost for all such
insurance coverage; and (D) containing an “Ordinance
or Law Coverage” or “Enforcement” endorsement if any of the Improvements
or the use of the Property shall at any time constitute legal non-conforming
structures or uses. In addition, Borrower shall obtain: (y) if any portion of
the Improvements is currently or at any time in the future located in a
federally designated “special flood hazard area”, flood hazard insurance in an
amount equal to the lesser of (1) the
outstanding principal balance of the Note or (2) the maximum amount of such insurance available under the National Flood
Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the
National Flood Insurance Reform Act of 1994, as each may be amended or such greater amount as Lender shall require; and
(z) earthquake insurance in amounts and in form and substance
satisfactory to Lender in the event the Property is located in an area with a
high degree of seismic activity, provided that the insurance pursuant to
clauses (y) and (z) hereof shall be on terms consistent with the comprehensive
all risk insurance policy required under this subsection (i).


(ii)      commercial
general liability insurance against claims for personal injury, bodily injury, death or property damage occurring
upon, in or about the Property, such insurance (A) to be on the so-called “occurrence”
form with a combined limit, including umbrella
coverage, of not less than Two Million and No/100 Dollars ($2,000,000.00); (B) to continue at not less than the aforesaid limit
until required to be changed by Lender in writing by reason of changed economic conditions making such protection
inadequate; and (C) to cover at least
the following hazards: (1) premises and operations; (2) products and completed
operations on an “if any” basis; (3) independent contractors; (4) blanket contractual liability for all legal contracts;
and (5) contractual liability covering the indemnities contained in Article 9 of the Mortgage to the extent the
same is available;


(iii)      business income insurance (A) with loss payable
to Lender; (B) covering all risks
required to be covered by the insurance provided for in subsection (i) above;
(C) covering rental losses or
business interruption, as may be applicable, for a period of at least twenty four (24) months after the date of
the casualty and containing an extended period of indemnity endorsement which
provides that after the physical loss to the Improvements and Personal Property has been repaired, the continued
loss of income will be insured until
such income either returns to the same level it was at prior to the loss, or the expiration of six (6) months from the date
that the Property is repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that
the policy may expire prior to the end of such period; and (D) in an
annual amount equal to (100%) of the rents
or estimated gross revenues from the operation of the Property (as reduced to reflect expenses not incurred during a period of
Restoration). The amount of such business
income insurance shall be determined prior to the date hereof and at least once
each year thereafter based on
Borrower’s reasonable estimate of the gross income from the Property for the
succeeding twenty four (24) month period. All proceeds payable to



 55
 






 



Lender pursuant to this subsection shall be held by
Lender and shall be applied to the obligations
secured by the Loan Documents from time to time due and payable hereunder and
under the Note; provided, however, that nothing herein contained
shall be deemed to relieve Borrower of its obligations to pay the obligations
secured by the Loan Documents on the respective dates of payment provided for
in the Note and the other Loan Documents except to the extent such amounts are
actually paid out of the proceeds of such
business income insurance;


(iv)      at
all times during which structural construction, repairs or alterations are being
made with respect to the Improvements, and only if the Property coverage form does not otherwise apply, (A) owner’s contingent
or protective liability insurance covering
claims not covered by or under the terms or provisions of the above mentioned commercial
general liability insurance policy; and (B) the insurance provided for in subsection (i) above written in a so-called
builder’s risk completed value form (1) on a non-reporting basis, (2) against
all risks insured against pursuant to subsection (i) above, (3) including permission to occupy the Property,
and (4) with an agreed amount endorsement
waiving co-insurance provisions;


(v)      workers’ compensation, subject to the statutory
limits of the State;


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


(vii)      umbrella liability insurance in an amount not
less than Fifty Million and No/100
Dollars ($50,000,000.00) per occurrence on terms consistent with the commercial
general liability insurance policy
required under subsection (ii) above;


(viii)      if any of the policies of insurance covering the
risks required to be covered under subsections (i) through (vii) above contains
an exclusion from coverage for acts of terrorism, Borrower shall obtain and
maintain a separate policy providing such coverages in the event of any act of terrorism, provided
such coverage is commercially available for properties similar to the Property and located in or around the region
in which the Property is located.


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


(b)
All insurance provided for in Section 6.1 (a) shall be obtained under valid and
enforceable policies (collectively,
the “Policies” or in the singular, the “Policy”), and shall be subject to the
approval of Lender as to insurance companies, amounts, deductibles, loss payees
and insureds. The Policies shall be issued by financially sound and
responsible insurance companies authorized
to do business in the State and having a rating of “A:VII” or better in the current
Best’s Insurance Reports and a claims paying ability rating of “A” or better by
at least two (2) of the Rating Agencies
including, (i) Standard & Poor’s Ratings Group, and (ii) Moody’s



 56
 






 



Investors Services, Inc. if Moody’s Investors Service,
Inc. is rating the Securities. The Policies described in Section 6.1 (other
than those strictly limited to liability protection) shall designate Lender as
loss payee. Not less than thirty (30) days prior to the expiration dates of the
Policies theretofore furnished to Lender, certificates of insurance evidencing
the Policies accompanied by evidence satisfactory to Lender of payment of the
premiums due thereunder (the “Insurance
Premiums”) shall be
delivered by Borrower to Lender.


(c) Any blanket insurance
Policy shall specifically allocate to the Property the amount of coverage from
time to time required hereunder and shall otherwise provide the same protection
as would a separate Policy insuring only the Property in compliance with the
provisions of Section 6.1 (a).


(d) All Policies of
insurance provided for or contemplated by Section 6.1(a), except for the Policy
referenced in Section 6.1(a)(v), shall name Borrower, or the Tenant, as the
insured and Lender as the additional insured, as its interests may appear, and
in the case of property damage, boiler and machinery, flood and earthquake
insurance, shall contain a so-called New York standard non-contributing
mortgagee clause in favor of Lender providing that the loss thereunder shall be
payable to Lender.


(e) All Policies of
insurance provided for in Section 6.1 (a) shall contain clauses or endorsements
to the effect that:


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


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


(iii)      the
issuers thereof shall give written notice to Lender if the Policy has not been
renewed fifteen (15) days prior to its expiration; and


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


(f) If at any time Lender
is not in receipt of written evidence that all insurance required hereunder is
in full force and effect, Lender shall have the right, after ten (10) Business
Days written notice to Borrower, to take such action as Lender deems necessary
to protect its interest in the Property, including, without limitation, the
obtaining of such insurance coverage as Lender in its sole discretion deems
appropriate. All premiums incurred by Lender in connection with such action or
in obtaining such insurance and keeping it in effect shall be paid by Borrower
to Lender upon demand and, until paid, shall be secured by the Mortgage and shall
bear interest at the Default Rate. If Borrower fails in so insuring the
Property or in so assigning and delivering the Policies, Lender may, at its
option, obtain such insurance using such carriers and agencies as Lender shall
elect from year to year and pay the premiums therefor, and



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Borrower will reimburse Lender for any premium so
paid, with interest thereon as stated in the Note from the time of payment, on
demand, and the amount so owning to Lender shall be secured by the Mortgage.
The insurance obtained by Lender may, but need not, protect Borrower’s interest
and the coverage that Lender purchases may not pay any claim that Borrower
makes or any claim that is made against Borrower in connection with the
Property.


Section 6.2 Casualty.
If the Property shall be damaged or destroyed, in whole or in part, by fire or
other casualty (a “Casualty”),
Borrower (a) shall give (or cause Anchor Tenant to give) to Lender prompt
notice of such damage reasonably estimated by Borrower to cost more than One
Hundred Thousand Dollars ($100,000.00) to repair, and (b) shall promptly
commence and diligently prosecute the completion of the repair and restoration
of the Property as nearly as possible to the condition the Property was in
immediately prior to such fire or other casualty, with such alterations as may
be reasonably approved by Lender (a “Restoration”)
and otherwise in accordance with Section 6.4. Borrower shall pay all costs of
such Restoration whether or not such costs are covered by insurance. Lender
may, but shall not be obligated to make proof of loss if not made promptly by
Borrower.


Section 6.3 Condemnation.
Borrower shall promptly give Lender notice of the actual or threatened
commencement of any proceeding for the Condemnation of the Property and shall
deliver to Lender copies of any and all papers served in connection with such
proceedings. Lender may participate in any such proceedings, and Borrower shall
from time to time deliver to Lender all instruments requested by it to permit
such participation. Borrower shall, at its expense, diligently prosecute any
such proceedings, and shall consult with Lender, its attorneys and experts, and
cooperate with them in the carrying on or defense of any such proceedings.
Notwithstanding any taking by any public or quasi-public authority through
Condemnation or otherwise (including but not limited to any transfer made in
lieu of or in anticipation of the exercise of such taking), Borrower shall
continue to pay the Debt at the time and in the manner provided for its payment
in the Note and in this Agreement and the Debt shall not be reduced until any
Award shall have been actually received and applied by Lender, after the
deduction of expenses of collection, to the reduction or discharge of the Debt.
Lender shall not be limited to the interest paid on the Award by the condemning
authority but shall be entitled to receive out of the Award interest at the
rate or rates provided herein or in the Note. If the Property or any portion
thereof is taken by a condemning authority, Borrower shall promptly commence
and diligently prosecute the Restoration of the Property and otherwise comply
with the provisions of Section 6.4. If the Property is sold, through
foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender
shall have the right, whether or not a deficiency judgment on the Note shall
have been sought, recovered or denied, to receive the Award, or a portion
thereof sufficient to pay the Debt.


Section 6.4 Restoration.
The following provisions shall apply in connection with the Restoration of the
Property:


(a) If the Net Proceeds
shall be less than Relevant Restoration Threshold and the costs of completing
the Restoration shall be less than the Relevant Restoration Threshold, the Net
Proceeds will be disbursed by Lender to Borrower upon receipt, provided that
all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L)
of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written
undertaking to expeditiously commence and to



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satisfactorily complete
with due diligence the Restoration in accordance with the terms of this
Agreement.


(b) If the Net Proceeds
are equal to or greater than the Relevant Restoration Threshold or the costs of
completing the Restoration is equal to or greater than the Relevant Restoration
Threshold, then in either case, Lender shall make the Net Proceeds available
for the Restoration in accordance with the provisions of this Section 6.4(b).
The term “Net Proceeds” for
purposes of this Section 6.4 shall mean: (x) the net amount of all insurance
proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi) and
(viii) as a result of such damage or destruction, after deduction of its
reasonable costs and expenses (including, but not limited to, reasonable counsel
fees), if any, in collecting same (“Insurance
Proceeds”), or (y)
the net amount of the Award, after deduction of its reasonable costs and
expenses (including, but not limited to, reasonable counsel fees), if any, in
collecting same (“Condemnation Proceeds”) whichever the case may be.


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


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


(B) (1) in the event the
Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent
(25%) of the total floor area of the Improvements on the Property has been
damaged, destroyed or rendered unusable as a result of such fire or other
casualty, or (y) Borrower is required under a Lease exceeding the Relevant
Leasing Threshold to use the Net Proceeds for the restoration of the Property,
or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less
than ten percent (10%) of the land constituting the Property is taken, and such
land is located along the perimeter or periphery of the Property, and no
portion of the Improvements is located on such land, or (y) Borrower is
required under a Lease exceeding the Relevant Leasing Threshold to use the Net
Proceeds for the restoration of the Property;


(C) Leases demising in
the aggregate a percentage amount equal to or greater than the Rentable Space
Percentage of the total rentable space in the Property which has been demised
under executed and delivered Leases in effect as of the date of the occurrence
of such fire or other casualty or taking, whichever the case may be, shall
remain in full force and effect during and after the completion of the
Restoration, notwithstanding the occurrence of any such fire or other casualty
or taking, whichever the case may be, and will make all necessary repairs and
restorations thereto at their sole cost and expense. The term “Rentable Space Percentage” shall
mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage
amount equal to fifty percent (50%) and (y) in the event the Net Proceeds are
Condemnation Proceeds, a percentage amount equal to fifty percent (50%);



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(D) Borrower shall
commence the Restoration as soon as reasonably practicable (but in no event
later than ninety (90) days after such damage or destruction or taking,
whichever the case may be, occurs) and shall diligently pursue the same to
satisfactory completion;


(E) Lender shall be
satisfied that any operating deficits, including all scheduled payments of
principal and interest under the Note, which will be incurred with respect to
the Property as a result of the occurrence of any such fire or other casualty
or taking, whichever the case may be, will be covered out of (1) the Net
Proceeds, (2) the insurance coverage referred to in Section 6.1(a)(iii), if
applicable, or (3) by other funds of Borrower;


(F) Lender shall be
satisfied that the Restoration will be completed on or before the earliest to
occur of (1) the Anticipated Repayment Date, (2) the earliest date required for
such completion under the terms of any Leases, (3) such time as may be required
under applicable zoning law, ordinance, rule or regulation in order to repair
and restore the Property to the condition it was in immediately prior to such
fire or other casualty or to as nearly as possible the condition it was in
immediately prior to such taking, as applicable or (4) the expiration of the
insurance coverage referred to in Section 6.1(a)(iii);


(G) the Property and the
use thereof after the Restoration will be in compliance with and permitted
under all applicable zoning laws, ordinances, rules and regulations provided,
however, that compliance with such zoning laws, ordinances, rules and
regulations (including, without limitation, parking requirements) will not
require restoration of the Improvements or the Property to a size, condition,
or configuration materially different than that which existed immediately prior
to such Casualty or taking;


(H) the Restoration shall
be done and completed by Borrower in an expeditious and diligent fashion and in
compliance with all applicable governmental laws, rules and regulations
(including, without limitation, all applicable environmental laws);


(I) such fire or other
casualty or taking, as applicable, does not result in the loss of access to the
Property or the related Improvements;


(J) the Debt Service
Coverage Ratio, after giving effect to the Restoration, shall be equal to or
greater than 1.17:1.0;


(K) Borrower shall
deliver or cause to be delivered to Lender a signed detailed budget approved in
writing by Borrower’s architect or engineer stating the entire cost of
completing the Restoration, which budget should be consistent with restoration
budgets of similar office



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properties then owned and operated by nationally
recognized owners and operators of office properties located in the areas in
which the Property is located; and


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


(ii)      The
Net Proceeds shall be held by Lender in an interest bearing account and, until
disbursed in accordance with the provisions of this Section 6.4(b), shall
constitute additional security for the Debt and other obligations under the
Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as
directed by, Borrower from time to time during the course of the Restoration,
upon receipt of evidence satisfactory to Lender that (A) all materials installed
and work and labor performed to be paid for out of the requested disbursement
in connection with the Restoration have been performed, and (B) there exist no
notices of pendency, stop orders, mechanic’s or materialman’s liens or notices
of intention to file same, or any other liens or encumbrances of any nature
whatsoever on the Property which have not either been fully bonded to the
satisfaction of Lender and discharged of record or in the alternative fully
insured to the satisfaction of Lender by the title company issuing the Title
Insurance Policy.


(iii)      All
plans and specifications required in connection with the Restoration shall be
subject to prior review and acceptance in all respects by Lender and by an
independent consulting engineer selected by Lender (the “Casualty Consultant”), such review
and acceptance not to be unreasonably withheld or delayed. Lender shall have
the use of the plans and specifications and all permits, licenses and approvals
required or obtained in connection with the Restoration. The identity of the
contractors, subcontractors and materialmen engaged in the Restoration, as well
as the contracts under which they have been engaged, shall be subject to prior
review and acceptance by Lender and the Casualty Consultant, such review and
acceptance not to be unreasonably withheld or delayed. All costs and expenses
incurred by Lender in connection with making the Net Proceeds available for the
Restoration including, without limitation, reasonable counsel fees and
disbursements and the Casualty Consultant’s fees, shall be paid by Borrower.


(iv)      In
no event shall Lender be obligated to make disbursements of the Net Proceeds in
excess of an amount equal to the costs actually incurred from time to time for
work in place as part of the Restoration, as certified by the Casualty
Consultant, minus the Casualty Retainage. The term “Casualty Retainage” shall mean an
amount equal to ten percent (10%) of the costs actually incurred for work in
place as part of the Restoration, as certified by the Casualty Consultant,
until the Restoration has been completed. The Casualty Retainage shall in no
event, and notwithstanding anything to the contrary set forth above in this
Section 6.4(b), be less than the amount actually held back by Borrower from
contractors, subcontractors and materialmen engaged in the Restoration. The
Casualty Retainage shall not be released until the Casualty Consultant
certifies to Lender that the Restoration has been completed in accordance with
the



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provisions of this Section 6.4(b) and that all
approvals necessary for the re-occupancy and use of the Property have been
obtained from all appropriate governmental and quasi-governmental authorities,
and Lender receives evidence satisfactory to Lender that the costs of the
Restoration have been paid in full or will be paid in full out of the Casualty
Retainage; provided, however, that Lender will release the
portion of the Casualty Retainage being held with respect to any contractor,
subcontractor or materialman engaged in the Restoration as of the date upon
which the Casualty Consultant certifies to Lender that the contractor,
subcontractor or materialman has satisfactorily completed all work and has
supplied all materials in accordance with the provisions of the contractor’s,
subcontractor’s or materialman’s contract, the contractor, subcontractor or
materialman delivers the lien waivers and evidence of payment in full of all
sums due to the contractor, subcontractor or materialman as may be reasonably
requested by Lender or by the title company issuing the Title Insurance Policy,
and Lender receives an endorsement to the Title Insurance Policy insuring the
continued priority of the lien of the Mortgage and evidence of payment of any
premium payable for such endorsement. If required by Lender, the release of any
such portion of the Casualty Retainage shall be approved by the surety company,
if any, which has issued a payment or performance bond with respect to the
contractor, subcontractor or materialman.


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


(vi)      If
at any time the Net Proceeds or the undisbursed balance thereof shall not, in
the reasonable opinion of Lender in consultation with the Casualty Consultant,
be sufficient to pay in full the balance of the costs which are estimated by
the Casualty Consultant to be incurred in connection with the completion of the
Restoration, Borrower shall deposit the deficiency (the “Net Proceeds Deficiency”) with
Lender before any further disbursement of the Net Proceeds shall be made. The
Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall
be disbursed for costs actually incurred in connection with the Restoration on
the same conditions applicable to the disbursement of the Net Proceeds, and
until so disbursed pursuant to this Section 6.4(b) shall constitute additional
security for the Debt and other obligations under the Loan Documents.


(vii)      The
excess, if any, of the Net Proceeds and the remaining balance, if any, of the
Net Proceeds Deficiency deposited with Lender after the Casualty Consultant
certifies to Lender that the Restoration has been completed in accordance with
the provisions of this Section 6.4(b), and the receipt by Lender of evidence
satisfactory to Lender that all costs incurred in connection with the
Restoration have been paid in full, shall be remitted by Lender to Borrower,
provided no Event of Default shall have occurred and shall be continuing under
the Note, this Agreement or any of the other Loan Documents.


(c) All Net Proceeds not
required (i) to be made available for the Restoration or (ii) to be returned to
Borrower as excess Net Proceeds pursuant to Section 6.4(b)(vii) may be retained
and applied by Lender toward the payment of the Debt whether or not then due
and payable in such order, priority and proportions as Lender in its sole
discretion shall deem proper



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(provided no Event of Default exists, such Borrower
shall not be required to pay any Prepayment Consideration in connection with
such payment), or, at the discretion of Lender, the same may be paid, either in
whole or in part, to Borrower for such purposes as Lender shall designate, in
its discretion.


(d) In the event of
foreclosure of the Mortgage with respect to the Property, or other transfer of
title to the Property in extinguishment in whole or in part of the Debt all
right, title and interest of Borrower in and to the Policies that are not
blanket Policies then in force concerning the Property and all proceeds payable
thereunder shall thereupon vest in the purchaser at such foreclosure or Lender
or other transferee in the event of such other transfer of title.


(e) Lender shall with
reasonable promptness following any Casualty or Condemnation notify Borrower
whether or not Net Proceeds are required to be made available to Borrower for
restoration pursuant to this Section 6.4. All Net Proceeds not required to be
made available for Restoration shall be retained and applied by Lender in accordance
with Section 2.3.2(a) hereof (a “Net
Proceeds Prepayment”). If such Net Proceeds Prepayment shall be
equal to or greater than Seventy Five Million and 00/100 Dollars ($75,000,000);
Borrower shall have the right to elect to prepay the remaining outstanding
principal balance of the Note (a “Casualty/Condemnation
Prepayment”) in accordance with Section 2.3.2(b) hereof
upon satisfaction of the following conditions: (i) within thirty (30) days
following the date of the Net Proceeds Prepayment, Borrower shall provide
Lender with written notice of Borrower’s intention to pay the Note in full,
(ii) Borrower shall prepay the Note in accordance with Section 2.3.2(b) hereof
on or before the second Payment Date occurring following the date of the Net
Proceeds Prepayment, and (iii) no Event of Default shall exist on the date of
such Casualty/Condemnation Prepayment. Notwithstanding anything in Section 6.2
or Section 6.3 to the contrary, Borrower shall have no obligation to commence
Restoration of the Property upon delivery of the written notice set forth in
clause (i) of the preceding sentence (unless Borrower subsequently shall fail
to satisfy the requirement of clause (ii) of the preceding sentence).


ARTICLE VII

RESERVE FUNDS


Section 7.1 Required
Repair Funds.


7.1.1 Deposits.
Borrower shall perform (or shall cause Anchor Tenant to perform) the repairs at
the Property, if any, as more particularly set forth on Schedule III
hereto (such repairs hereinafter referred to as “Required Repairs”) within six (6) months from the
Closing Date, or such earlier time as specified on Schedule III. If
Borrower has not delivered to Lender evidence reasonably satisfactory to Lender
that it has completed all Required Repairs on or before the date that is six
(6) months from the Closing Date, or such earlier time as specified on Schedule
III, Borrower shall deposit with Lender the amount for the Property set
forth on such Schedule III hereto, if any (less the amount allocated to
the performance of Required Repairs for which evidence of completion has been
delivered to Lender), to perform the Required Repairs for the Property. Amounts
so deposited with Lender, if any, shall be held by Lender in an interest
bearing account. Amounts so deposited, if any, shall hereinafter be referred to
as Borrower’s “Required Repair Fund”
and the account, if any, in which such amounts are



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held shall hereinafter be referred to as Borrower’s “Required Repair Account”. It
shall be an Event of Default under this Agreement if Borrower does not either
(i) does not deposit with Lender the Required Repair Fund as set forth above,
or (ii) complete the Required Repairs at the Property within nine (9) months
from the Closing Date. Upon the occurrence of such an Event of Default, Lender,
at its option, may withdraw all Required Repair Funds from the Required Repair
Account and Lender may apply such funds either to completion of the Required
Repairs at the Property or toward payment of the Debt in such order, proportion
and priority as Lender may determine in its sole discretion. Lender’s right to
withdraw and apply Required Repair Funds shall be in addition to all other
rights and remedies provided to Lender under this Agreement and the other Loan
Documents.


7.1.2 Release of
Required Repair Funds. Lender shall disburse to Borrower the Required
Repair Funds from the Required Repair Account from time to time upon
satisfaction by Borrower of each of the following conditions: (i) Borrower
shall submit a written request for payment to Lender at least fifteen (15) days
prior to the date on which Borrower requests such payment be made and specifies
the Required Repairs to be paid, (ii) on the date such request is received by
Lender and on the date such payment is to be made, no Default or Event of
Default shall exist and remain uncured, (iii) Lender shall have received a
certificate from Borrower (A) stating that all Required Repairs at the Property
to be funded by the requested disbursement have been completed in good and
workmanlike manner and in accordance with all applicable federal, state and
local laws, rules and regulations, such certificate to be accompanied by a copy
of any license, permit or other approval by any Governmental Authority required
to commence and/or complete the Required Repairs, (B) identifying each Person
that supplied materials or labor in connection with the Required Repairs
performed at the Property to be funded by the requested disbursement under a
contract in excess of $50,000, and (C) stating that each Person who has
supplied materials or labor in connection with the Required Repairs to be
funded by the requested disbursement has been paid in full or will be paid in
full upon such disbursement, such certificate to be accompanied by lien waivers
or other evidence of payment satisfactory to Lender, (iv) at Lender’s option, a
title search for the Property indicating that the Property is free from all
liens, claims and other encumbrances not previously approved by Lender, and (v)
Lender shall have received such other evidence as Lender shall reasonably request
that the Required Repairs at the Property to be funded by the requested
disbursement have been completed and are paid for or will be paid upon such
disbursement to Borrower. Lender shall not be required to make disbursements
from the Required Repair Account with respect to the Property more than once
each calendar month and such disbursement shall be made only upon satisfaction
of each condition contained in this Section 7.1.2.


Section 7.2 Tax and
Insurance Escrow Fund.


Borrower shall pay
to Lender on each Payment Date (a) one-twelfth of the Taxes that Lender
estimates will be payable during the next ensuing twelve (12) months in order
to accumulate with Lender sufficient funds to pay all such Taxes at least
thirty (30) days prior to their respective due dates and (b) one-twelfth of the
Insurance Premiums that Lender estimates will be payable for the renewal of the
coverage afforded by the Policies upon the expiration thereof in order to
accumulate with Lender sufficient funds to pay all such Insurance Premiums at
least thirty (30) days prior to the expiration of the Policies, (said amounts
in (a) and (b) above are hereinafter called the “Tax and Insurance Escrow Fund”). The Tax and Insurance Escrow



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Fund and the payments of interest or principal or both,
payable pursuant to the Note, shall be added together and shall be paid as an
aggregate sum by Borrower to Lender. Lender will apply the Tax and Insurance
Escrow Fund to payments of Taxes and Insurance Premiums required to be made by
Borrower pursuant to this Agreement and under the Mortgage. In making any
payment relating to the Tax and Insurance Escrow Fund, Lender may do so
according to any bill, statement or estimate procured from the appropriate
public office (with respect to Taxes) or insurer or agent (with respect to
Insurance Premiums) or from Borrower without inquiry into the accuracy of such
bill, statement or estimate or into the validity of any tax, assessment, sale,
forfeiture, tax lien or title or claim thereof, provided, however, Lender shall
use reasonable efforts to pay such real property taxes sufficiently early to
obtain the benefit of any available discounts of which it has knowledge. If the
amount of the Tax and Insurance Escrow Fund shall exceed the amounts due for
Taxes and Insurance Premiums, Lender shall, in its sole discretion, return any
excess to Borrower or credit such excess against future payments to be made to
the Tax and Insurance Escrow Fund. The Tax and Insurance Escrow Fund shall be
held by Lender in an interest-bearing account and shall at Lender’s option be
held in Eligible Account at an Eligible Institution. Any interest earned on
said account shall accrue in said account for the benefit of Borrower, but
shall remain in and constitute part of the Tax and Insurance Escrow Fund, and
shall be disbursed in accordance with the terms hereof. Any amount remaining in
the Tax and Insurance Escrow Fund after the Debt has been paid in full shall be
returned to Borrower. In allocating such excess, Lender may deal with the
Person shown on the records of Lender to be the owner of the Property. If at
any time Lender reasonably determines that the Tax and Insurance Escrow Fund is
not or will not be sufficient to pay Taxes or Insurance Premiums by the dates
set forth above, Lender shall notify Borrower of such determination and
Borrower shall increase its monthly payments to Lender by the amount that
Lender estimates is sufficient to make up the deficiency at least thirty (30)
days prior to delinquency of the Taxes or Insurance Premiums.


Notwithstanding anything
to the contrary hereinbefore contained, in the event that Borrower provides (1)
evidence satisfactory to Lender that the Property is insured in accordance with
Section 6.1 of this Agreement and (2) evidence satisfactory to Lender
that the Taxes for the Property have been paid in accordance with the
requirements set forth in this Agreement, Lender will waive the requirement set
forth herein for Borrower to make deposits into the Tax and Insurance Escrow
Fund for the payment of Insurance Premiums and for payment of such Taxes,
provided, however, Lender expressly reserves the right to require Borrower to
make deposits to the Tax and Insurance Escrow Fund for the payment of Insurance
Premiums if at any time the Property is not insured in accordance with Section
6.1 of this Agreement or Taxes are not paid in accordance with the
requirements of this Agreement.


Section 7.3 Replacements
and Replacement Reserve.


Section 7.3.1 Replacement
Reserve Fund. Borrower shall pay to Lender on the Closing Date and on each
Payment Date one twelfth of the amount (the “Replacement
Reserve Monthly Deposit”)
reasonably estimated by Lender in its sole discretion to be due for
replacements and repairs required to be made to the Property during the
calendar year (collectively, the “Replacements”),
which Replacement Reserve Monthly Deposit shall be in an amount equal to no
less than $0.15 per year per square foot of gross leasable area. Amounts so
deposited shall hereinafter be referred to as Borrower’s “Replacement Reserve Fund” and the



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account in which such amounts are held shall
hereinafter be referred to as Borrower’s “Replacement
Reserve Account”. Lender may reassess its estimate of the amount
necessary for the Replacement Reserve Fund from time to time, and may increase
the monthly amounts required to be deposited into the Replacement Reserve Fund
upon thirty (30) days notice to Borrower if Lender determines in its reasonable
discretion that an increase is necessary to maintain the proper maintenance and
operation of the Property. Any amount held in the Replacement Reserve Account
and allocated for the Property shall be retained by Lender in an interest
bearing account, or, at the option of Lender, in an Eligible Account at an
Eligible Institution; provided, however, that, any interest
earned on said account shall accrue in said account for the benefit of
Borrower, but shall remain in and constitute part of the Replacement Reserve
Fund, and shall be disbursed in accordance with the terms hereof.


Notwithstanding anything
to the contrary in this Section 7.3, Borrower shall not be required to make
Replacement Reserve Monthly Deposits, provided that: (i) no Event of Default
shall have occurred; and (ii) either (A) Borrower makes all necessary
Replacements and otherwise maintains the Property to Lender’s satisfaction, or
(B) Anchor Tenant maintains the Property as required pursuant to the Anchor
Tenant Lease. Upon notice from Lender following: (a) an Event of Default; or
(b) the failure of Borrower to make necessary Replacements and otherwise
maintain the Property to Lender’s satisfaction, or the failure of Anchor Tenant
to maintain the Property as required pursuant to the Anchor Tenant Lease, as
applicable, Borrower shall begin to deposit the Replacement Reserve Monthly Deposit
into the Replacement Reserve Fund beginning on the Payment Date (as defined
herein) immediately following the date of such notice.


Section 7.3.2 Disbursements
from Replacement Reserve Account.


(a)
Lender shall make disbursements from the Replacement Reserve Account to pay
Borrower only for the costs of the Replacements. Lender shall not be obligated
to make disbursements from the Replacement Reserve Account to reimburse
Borrower for the costs of routine maintenance to the Property or for costs which
are to be reimbursed from the Required Repair Fund (if any).


(b)
Lender shall, upon written request from Borrower and satisfaction of the
requirements set forth in this Section 7.3.2, disburse to Borrower amounts from the Replacement Reserve Account
necessary to pay for the actual approved costs of Replacements or to reimburse
Borrower therefor, upon completion of such Replacements (or, upon partial
completion in the case of Replacements made pursuant to Section 7.3.2(f)) as
determined by Lender. In no event shall Lender be obligated to disburse funds
from the Replacement Reserve Account if a Default or an Event of Default
exists.


(c)
Each request for disbursement from the Replacement Reserve Account shall be in
a form specified or approved by Lender and shall specify (i) the specific Replacements for which the
disbursement is requested, (ii) the quantity and price of each item purchased,
if the Replacement includes the purchase or replacement of specific items,
(iii) the price of all materials (grouped by type or category) used in any
Replacement other than the purchase or replacement of specific items, and (iv)
the cost of all contracted labor or other services applicable to each
Replacement for which such request for disbursement is made. With each request



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Borrower shall certify that all Replacements have been
made in accordance with all applicable Legal Requirements of any Governmental
Authority having jurisdiction over the Property to which the Replacements are
being provided and, unless Lender has agreed to issue joint checks as described
below, each request shall include evidence of payment of all such amounts. Each
request for disbursement shall include copies of invoices for all items or
materials purchased and all contracted labor or services provided. Except as
provided in Section 7.3.2(e), each request for disbursement from the
Replacement Reserve Account shall be made only after completion of the
Replacement for which disbursement is requested. Borrower shall provide Lender
evidence of completion satisfactory to Lender in its reasonable judgment.


(d)
Borrower shall pay all invoices in connection with the Replacements with
respect to which a disbursement is requested prior to submitting such request
for disbursement from the Replacement Reserve Account or, at the request of
Borrower, Lender will issue joint checks, payable to Borrower and the
contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in
connection with a Replacement. In the case of payments made by joint check,
Lender may require a waiver of lien from each Person receiving payment prior to
Lender’s disbursement from the Replacement Reserve Account. In addition, as a
condition to any disbursement, Lender may require Borrower to obtain lien
waivers from each contractor, supplier, materialman, mechanic or subcontractor
who receives payment in an amount equal to or greater than $100,000 for
completion of its work or delivery of its materials. Any lien waiver delivered
hereunder shall conform to the requirements of applicable law and shall cover
all work performed and materials supplied (including equipment and fixtures)
for the Property by that contractor, supplier, subcontractor, mechanic or
materialman through the date covered by the current reimbursement request (or,
in the event that payment to such contractor, supplier, subcontractor, mechanic
or materialmen is to be made by a joint check, the release of lien shall be
effective through the date covered by the previous release of funds request).


(e)
If (i) the cost of a Replacement exceeds $100,000, (ii) the contractor
performing such Replacement requires periodic payments pursuant to terms of a
written contract, and (iii) Lender has approved in writing in advance such
periodic payments, a request for reimbursement from the Replacement Reserve
Account may be made after completion of a portion of the work under such
contract, provided (A) such contract requires payment upon completion of such
portion of the work, (B) the materials for which the request is made are on
site at the Property and are properly secured or have been installed in the
Property, (C) all other conditions in this Agreement for disbursement have been
satisfied, (D) funds remaining in the Replacement Reserve Account are, in
Lender’s judgment, sufficient to complete such Replacement and other
Replacements when required, and (E) if required by Lender, each contractor or
subcontractor receiving payments under such contract shall provide a waiver of
lien with respect to amounts which have been paid to that contractor or
subcontractor.


(f) Borrower shall not
make a request for disbursement from the Replacement Reserve Account more
frequently than once in any calendar month and (except in connection with the
final disbursement) the total cost of all Replacements in any request shall not
be less than $5,000.00.



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Section 7.3.3 Performance of Replacements.


(g)
Borrower shall make Replacements when required in order to keep the Property in
condition and repair consistent with other office properties in the same market
segment in the metropolitan area in which the Property is located, and to keep
the Property or any portion thereof from deteriorating. Borrower shall complete
all Replacements in a good and workmanlike manner as soon as practicable
following the commencement of making each such Replacement.


(h)
Lender reserves the right, at its option, to approve all contracts or work
orders with materialmen, mechanics, suppliers, subcontractors, contractors or
other parties providing labor or materials under contracts for an amount in
excess of $100,000 in connection with the Replacements performed by Borrower.
Upon Lender’s request, Borrower shall assign any contract or subcontract to
Lender.


(i)
In the event Lender determines in its reasonable discretion that any
Replacement is not being performed in a workmanlike or timely manner or that
any Replacement has not been completed in a workmanlike or timely manner, and
such failure continues to exist for more than thirty (30) days after notice
from Lender to Borrower, Lender shall have the option to withhold disbursement
for such unsatisfactory Replacement and to proceed under existing contracts or
to contract with third parties to complete such Replacement and to apply the
Replacement Reserve Fund toward the labor and materials necessary to complete
such Replacement, without providing any prior notice to Borrower and to
exercise any and all other remedies available to Lender upon an Event of
Default hereunder.


(j)
In order to facilitate Lender’s completion or making of the Replacements
pursuant to Section 7.3.3(c) above, Borrower grants Lender the right to enter
onto the Property and perform any and all work and labor necessary to complete
or make the Replacements and/or employ watchmen to protect the Property from
damage, subject to the rights of Tenants. All sums so expended by Lender, to
the extent not from the Replacement Reserve Fund, shall be deemed to have been
advanced under the Loan to Borrower and secured by the Mortgage. For this
purpose Borrower constitutes and appoints Lender its true and lawful
attorney-in-fact with full power of substitution to complete or undertake the
Replacements in the name of Borrower. Such power of attorney shall be deemed to
be a power coupled with an interest and cannot be revoked but shall only be
effective following an Event of Default. Borrower empowers said
attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve
Account for the purpose of making or completing the Replacements; (ii) to make
such additions, changes and corrections to the Replacements as shall be necessary
or desirable to complete the Replacements; (iii) to employ such contractors,
subcontractors, agents, architects and inspectors as shall be required for such
purposes; (iv) to pay, settle or compromise all existing bills and claims which
are or may become Liens against the Property, or as may be necessary or
desirable for the completion of the Replacements, or for clearance of title;
(v) to execute all applications and certificates in the name of Borrower which
may be required by any of the contract documents; (vi) to prosecute and defend
all actions or proceedings in connection with the Property or the
rehabilitation and repair of the Property; and (vii) to do any and every act
which Borrower might do in its own behalf to fulfill the terms of this Agreement.


(k) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for
making or completing the Replacements; (ii) require Lender to expend funds in
addition to the Replacement



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Reserve Fund to make or complete any Replacement;
(iii) obligate Lender to proceed with the Replacements; or (iv) obligate Lender
to demand from Borrower additional sums to make or complete any Replacement.


(1)
Borrower shall permit Lender and Lender’s agents and representatives (including,
without limitation, Lender’s engineer, architect, or inspector) or third
parties making Replacements pursuant to
this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of tenants under
their Leases) to inspect the progress of any Replacements and all materials being used in connection therewith, to
examine all plans and shop drawings relating to such Replacements which
are or may be kept at the Property, and to complete
any Replacements made pursuant to this Section 7.3.3. Borrower shall cause all contractors
and subcontractors to cooperate with Lender or Lender’s representatives or such
other persons described above in
connection with inspections described in this Section 7.3.3(f) or the
completion of Replacements pursuant to this Section 7.3.3.


(m) Lender may require an
inspection of the Property at Borrower’s expense prior to making a monthly
disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements
for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate
independent qualified professional selected by Lender and/or may require
a copy of a certificate of completion by an independent
qualified professional acceptable to Lender prior to the disbursement of any
amounts from the Replacement Reserve Account. Borrower shall pay the expense of
the inspection as required hereunder, whether such inspection is
conducted by Lender or by an independent qualified professional.


(n) The Replacements and
all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or
completed, as applicable, free and clear of all mechanic’s, materialman’s
or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by
Lender).


(o)
Before each disbursement from the Replacement Reserve Account, Lender may
require Borrower to provide Lender with a search of title to the Property
effective to the date of the disbursement,
which search shows that no mechanic’s or materialmen’s liens or other liens of
any nature have been placed against the Property since the date of recordation
of the Mortgage and that title to
the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved
in writing by Lender, if any).


(p)
All Replacements shall comply with all applicable Legal Requirements of all Governmental
Authorities having jurisdiction over the Property and applicable insurance
requirements including, without limitation, applicable building codes, special
use permits, environmental regulations, and
requirements of insurance underwriters.


(q) In addition to
any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s
compensation insurance, builder’s risk, and public liability insurance
and other insurance to the extent required under applicable law in connection with a particular Replacement. All
such policies shall be in form and amount reasonably satisfactory to
Lender. All such policies which can be endorsed with standard



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mortgagee clauses making loss payable to Lender or its
assigns shall be so endorsed. Certified copies
of such policies shall be delivered to Lender.


Section 7.3.4 Failure
to Make Replacements. (a) It shall be an Event of Default under this
Agreement if Borrower fails to comply with any provision of this Section 7.3
and such failure is not cured within thirty
(30) days after notice from Lender; provided, however, if such failure is not capable of being cured within said
thirty (30) day period, then provided that Borrower commences action to
complete such cure and thereafter diligently proceeds to complete such cure, such thirty (30) day period
shall be extended for such time as is reasonably necessary for Borrower, in the
exercise of due diligence, to cure such failure, but such additional period
of time shall not exceed sixty (60) days. Upon the occurrence of such an Event
of Default, Lender may use the Replacement
Reserve Fund (or any portion thereof) for any purpose, including but not
limited to completion of the Replacements as provided in Section 7.3.3, or for any other repair or replacement to
the Property or toward payment of the Debt in such order, proportion and priority as Lender may determine in its sole
discretion. Lender’s right to
withdraw and apply the Replacement Reserve Funds shall be in addition to all
other rights and remedies provided to
Lender under this Agreement and the other Loan Documents.


(s) Nothing in this
Agreement shall obligate Lender to apply all or any portion of the Replacement Reserve Fund on account of an
Event of Default to payment of the Debt or in any specific order or
priority.


Section 7.3.5 Balance
in the Replacement Reserve Account. The insufficiency of any balance in the
Replacement Reserve Account shall not relieve Borrower from its obligation to
fulfill all preservation and maintenance covenants in the Loan Documents.


Section
7.3.6 Indemnification. Borrower shall indemnify Lender and hold Lender harmless
from and against any and all actions, suits, claims, demands, liabilities,
losses, damages, obligations and costs and
expenses (including litigation costs and reasonable attorneys fees and
expenses) arising from or in any way connected with the performance of the Replacements unless the same are solely due to
gross negligence or willful misconduct of Lender. Borrower shall assign to Lender all rights and claims Borrower
may have against all persons or
entities supplying labor or materials in connection with the Replacements; provided,
however, that Lender may not pursue any such right or
claim unless an Event of Default has occurred
and remains uncured.


Section 7.4 Intentionally
Omitted.


Section
7.5 Intentionally Omitted.


Section 7.6 Intentionally
Omitted.


Section
7.7 Reserve Funds, Generally.


7.7.1 Borrower grants to Lender a first-priority perfected security
interest in each of the Reserve Funds and any and all monies now or
hereafter deposited in each Reserve Fund as
additional security for payment of the Debt. Until expended or applied in
accordance herewith, the Reserve Funds shall constitute additional security for
the Debt.



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7.7.2
Upon the occurrence of an Event of Default, Lender may, in addition to any and all other rights and remedies available to
Lender, apply any sums then present in any or all of the Reserve Funds to the
payment of the Debt in any order in its sole discretion.


7.7.3
The Reserve Funds shall not constitute trust funds and may be commingled with other monies held by Lender.


7.7.4
Intentionally omitted.


7.7.5
Borrower shall not, without obtaining the prior written consent of
Lender, further pledge, assign or grant any security interest in any Reserve
Fund or the monies deposited therein or
permit any lien or encumbrance to attach thereto, or any levy to be made
thereon, or any UCC-1 Financing Statements, except those naming Lender as the
secured party, to be filed with respect thereto.


7.7.6
Lender shall not be liable for any loss sustained on the investment of
any funds constituting the Reserve Funds unless occasioned by the gross
negligence or willful misconduct of Lender.


7.7.7
Upon payment in full of the Debt and performance of all other
obligations under this Agreement and the
other Loan Documents, Lender shall disburse to Borrower all remaining Reserve Funds.


ARTICLE VIII 

DEFAULTS


Section 8.1 Event of
Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):


(i)      if
any portion of the Debt is not paid within five (5) days of the applicable due date, or is not paid on or before the Maturity
Date;


(ii)      if
any of the Taxes or Other Charges are not paid prior to the date when the same
become delinquent, except to the extent that Borrower is contesting same in accordance with the terms of Section 5.1.2 hereof,
or there are sufficient funds in the Tax and Insurance Escrow Fund to pay such
Taxes or Other Charges and Lender fails to or refuses to release the same from
the Tax and Insurance Escrow Fund;


(iii)      if
the Policies are not kept in full force and effect, or if certified copies of the Policies are not delivered to Lender within
ten (10) days of request;


(iv)      if Borrower transfers or encumbers any portion of
the Property without Lender’s prior written consent (to extent such
consent is required) or otherwise violates the
provisions of Section 5.2.13 of this Loan Agreement;


(v)      if any material representation or warranty made by Borrower herein or
in any other Loan Document, or in any report, certificate, financial
statement or other instrument, agreement or
document furnished to Lender shall have been false or



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misleading in any material respect as of the date the representation or
warranty was made;


(vi)      if
Borrower or indemnitor or any guarantor under any guaranty or indemnity issued
in connection with the Loan shall make an assignment for the benefit of
creditors;


(vii) if a receiver,
liquidator or trustee shall be appointed for Borrower or any guarantor or
indemnitor under any guarantee or indemnity issued in connection with the Loan
or if Borrower or such guarantor or indemnitor shall be adjudicated a bankrupt
or insolvent, or if any petition for bankruptcy, reorganization or arrangement
pursuant to federal bankruptcy law, or any similar federal or state law, shall
be filed by or against, consented to, or acquiesced in by, Borrower or such
guarantor or indemnitor, or if any proceeding for the dissolution or
liquidation of Borrower or such guarantor or indemnitor shall be instituted; provided,
however, if such appointment, adjudication, petition or proceeding was
involuntary and not consented to by Borrower or such guarantor or indemnitor,
upon the same not being discharged, stayed or dismissed within one hundred
eighty (180) days;


(viii)      if
Borrower attempts to assign its rights under this Agreement or any of the other
Loan Documents or any interest herein or therein in contravention of the Loan
Documents;


(ix)      if
Borrower breaches any of its respective negative covenants contained in Section
5.2 or any covenant contained in Section 4.1.30 hereof;


(x)      with
respect to any term, covenant or provision set forth herein which specifically
contains a notice requirement or grace period, if Borrower shall be in default
under such term, covenant or condition after the giving of such notice or the
expiration of such grace period;


(xi)      if
any of the assumptions contained in any Insolvency Opinion or Additional
Insolvency Opinion are or shall become untrue in any material respect;


(xii)      if
Borrower shall continue to be in Default under any of the other terms,
covenants or conditions of this Agreement not specified in subsections (i) to
(xi) above, for ten (10) days after notice to Borrower from Lender, in the case
of any Default which can be cured by the payment of a sum of money, or for
thirty (30) days after notice from Lender in the case of any other Default; provided,
however, that if such non-monetary Default is susceptible of cure but
cannot reasonably be cured within such 30-day period and provided further that
Borrower shall have commenced to cure such Default within such 30-day period
and thereafter diligently and expeditiously proceeds to cure the same, such
30-day period shall be extended for such time as is reasonably necessary for
Borrower in the exercise of due diligence to cure such Default, such additional
period not to exceed one hundred eighty (180) days; or


(xiii)      if
there shall be default under any of the other Loan Documents beyond any applicable
cure periods contained in such documents, whether as to Borrower or the



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Property, or if any other such event shall occur or
condition shall exist, if the effect of such event or condition is to
accelerate the maturity of any portion of the Debt or to permit Lender to
accelerate the maturity of all or any portion of the Debt.


(b) Upon the occurrence
of an Event of Default (other than an Event of Default described in clauses
(vi), (vii) or (viii) above) and at any time thereafter Lender may, in addition
to any other rights or remedies available to it pursuant to this Agreement and
the other Loan Documents or at law or in equity, Lender may take such action,
without notice or demand, that Lender deems advisable to protect and enforce
its rights against Borrower and in the Property, including, without limitation,
declaring the Debt to be immediately due and payable, and Lender may enforce or
avail itself of any or all rights or remedies provided in the Loan Documents
against Borrower and the Property, including, without limitation, all rights or
remedies available at law or in equity; and upon any Event of Default described
in clauses (vi), (vii) or (viii) above, the Debt and all other obligations of
Borrower hereunder and under the other Loan Documents shall immediately and
automatically become due and payable, without notice or demand, and Borrower
hereby expressly waives any such notice or demand, anything contained herein or
in any other Loan Document to the contrary notwithstanding.


Section 8.2 Remedies.
(a) Upon the occurrence of an Event of Default, all or any one or more of the
rights, powers, privileges and other remedies available to Lender against
Borrower under this Agreement or any of the other Loan Documents executed and
delivered by, or applicable to, Borrower or at law or in equity may be
exercised by Lender at any time and from time to time, whether or not all or
any of the Debt shall be declared due and payable, and whether or not Lender
shall have commenced any foreclosure proceeding or other action for the
enforcement of its rights and remedies under any of the Loan Documents with
respect to the Property. Any such actions taken by Lender shall be cumulative
and concurrent and may be pursued independently, singly, successively, together
or otherwise, at such time and in such order as Lender may determine in its
sole discretion, to the fullest extent permitted by law, without impairing or
otherwise affecting the other rights and remedies of Lender permitted by law,
equity or contract or as set forth herein or in the other Loan Documents.
Without limiting the generality of the foregoing, Borrower agrees that if an
Event of Default is continuing (i) Lender is not subject to any “one action” or
“election of remedies” law or rule, and (ii) all liens and other rights,
remedies or privileges provided to Lender shall remain in full force and effect
until Lender has exhausted all of its remedies against the Property and the
Mortgage has been foreclosed, sold and/or otherwise realized upon in satisfaction
of the Debt or the Debt has been paid in full.


(b) To the extent
permitted by applicable law, Lender shall have the right from time to time to
partially foreclose the Mortgage in any manner and for any amounts secured by
the Mortgage then due and payable as determined by Lender in its sole
discretion including, without limitation, the following circumstances: (i) in
the event Borrower defaults beyond any applicable grace period in the payment
of one or more scheduled payments of principal and interest, Lender may
foreclose the Mortgage to recover such delinquent payments, or (ii) in the
event Lender elects to accelerate less than the entire outstanding principal
balance of the Loan, Lender may foreclose the Mortgage to recover so much of
the principal balance of the Loan as Lender may accelerate and such other sums
secured by the Mortgage as Lender may elect.



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Notwithstanding one or more partial foreclosures, the
Property shall remain subject to the Mortgage to secure payment of sums secured
by the Mortgage and not previously recovered.


(c) Lender shall have the
right from time to time to sever the Note and the other Loan Documents into one
or more separate notes, mortgages and other security documents (the “Severed Loan Documents”) in such denominations as Lender shall
determine in its sole discretion for purposes of evidencing and enforcing its
rights and remedies provided hereunder. Borrower shall execute and deliver to
Lender from time to time, promptly after the request of Lender, a severance
agreement and such other documents as Lender shall request in order to effect
the severance described in the preceding sentence, all in form and substance
reasonably satisfactory to Lender. Borrower hereby absolutely and irrevocably
appoints Lender following the occurrence of an Event of Default as its true and
lawful attorney, coupled with an interest, in its name and stead to make and
execute all documents necessary or desirable to effect the aforesaid severance,
Borrower ratifying all that its said attorney shall do by virtue thereof; provided,
however, Lender shall not make or execute any such documents under such
power until three (3) days after notice has been given to Borrower by Lender of
Lender’s intent to exercise its rights under such power. Borrower shall not be
obligated to pay any costs or expenses incurred in connection with the
preparation, execution, recording or filing of the Severed Loan Documents, and
the Severed Loan Documents shall not contain any representations, warranties or
covenants not contained in the Loan Documents and any such representations and
warranties contained in the Severed Loan Documents will be given by Borrower
only as of the Closing Date.


(d) As used in this
Section 8.2, a “foreclosure” shall include any sale by power of sale.


Section 8.3 Remedies
Cumulative; Waivers. The rights, powers and remedies of Lender under this
Agreement shall be cumulative and not exclusive of any other right, power or
remedy which Lender may have against Borrower pursuant to this Agreement or the
other Loan Documents, or existing at law or in equity or otherwise. Lender’s
rights, powers and remedies may be pursued singly, concurrently or otherwise,
at such time and in such order as Lender may determine in Lender’s sole
discretion. No delay or omission to exercise any remedy, right or power
accruing upon an Event of Default shall impair any such remedy, right or power
or shall be construed as a waiver thereof, but any such remedy, right or power
may be exercised from time to time and as often as may be deemed expedient. A
waiver of one Default or Event of Default with respect to Borrower shall not be
construed to be a waiver of any subsequent Default or Event of Default by
Borrower or to impair any remedy, right or power consequent thereon.


ARTICLE IX 

SPECIAL PROVISIONS


Section 9.1 Sale
of Notes and Securitization. At the request of the holder of the Note and,
to the extent not already required to be provided by Borrower under this
Agreement, Borrower shall cooperate with Lender to allow Lender to satisfy the
market standards to which the holder of the Note customarily adheres or which
may be reasonably required in the marketplace or by the Rating Agencies in
connection with the sale of the Note or participations therein or the first
successful securitization (such sale and/or securitization, the “Securitization”)



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of rated single or multi-class securities (the “Securities”) secured by or
evidencing ownership interests in the Note and the Mortgage. In this regard
Borrower shall:


(a) (i) provide such
financial and other information with respect to the Property, Borrower and the
Manager, (ii) provide budgets relating to the Property and (iii) to perform or
permit or cause to be performed or permitted such site inspection, appraisals,
market studies, environmental reviews and reports (Phase I’s and, if
appropriate, Phase II’s), engineering reports and other due diligence
investigations of the Property, as may be reasonably requested by the holder of
the Note or the Rating Agencies or as may be necessary or appropriate in
connection with the Securitization (the “Provided
Information”), together, if customary, with appropriate
verification and/or consents of the Provided Information through letters of
auditors or opinions of counsel of independent attorneys acceptable to Lender
and the Rating Agencies;


(b) cause counsel to
render opinions, which may be relied upon by the holder of the Note, the Rating
Agencies and their respective counsel, agents and representatives, as to
non-consolidation, fraudulent conveyance, and true sale and/or lease or any
other opinion customary in securitization transactions, which counsel and
opinions shall be reasonably satisfactory to the holder of the Note and the
Rating Agencies;


(c) make such
representations and warranties as of the closing date of the Securitization
with respect to the Property, Borrower, and the Loan Documents as are
consistent with the representations and warranties made in the Loan Documents;
and


(d) execute such
amendments to the Loan Documents and organizational documents as may be
reasonably requested by the holder of the Note or the Rating Agencies or
otherwise to effect the Securitization; provided, however, that
Borrower shall not be required to modify or amend any Loan Document if such
modification or amendment would (i) change the interest rate, the stated
maturity or the amortization of principal set forth in the Note, or (ii) modify
or amend any other material economic term of the Loan.


All material
out-of-pocket third party costs and expenses incurred by Borrower in connection
with complying with requests made under this Section 9.1 shall be paid by
Lender.


Section 9.2 Securitization.
(a) Borrower understands that certain of the Provided Information may be
included in disclosure documents in connection with the Securitization,
including, without limitation, a prospectus, prospectus supplement or private
placement memorandum (each, a “Disclosure
Document”) and may also be included in filings with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended (the “Securities Act”),
or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made
available to investors or prospective investors in the Securities, the Rating
Agencies, and service providers relating to the Securitization. In the event
that the Disclosure Document is required to be revised prior to the sale of all
Securities, Borrower will cooperate with the holder of the Note in updating the
Disclosure Document by providing all current information necessary to keep the
Disclosure Document accurate and complete in all material respects, and
otherwise to enable Lender to comply with applicable laws regarding disclosure.



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(b) The Indemnifying
Persons agree to provide, in connection with the Securitization, an
indemnification agreement certifying that (i) the Indemnifying Persons have
carefully examined the Disclosure Documents, (ii) such sections and such other
information in the Disclosure Documents (to the extent such information relates
to or includes any Provided Information or any information regarding the
Properties, Borrower, Manager and/or the Loan) (collectively with the Provided
Information, the “Covered Disclosure
Information”) do not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
made, in the light of the circumstances under which they were made, not
misleading, and (iii) jointly and severally indemnifying Lender and any
Affiliate of Lender involved in the Securitization (collectively, the “Indemnified Persons”), for any
losses, claims, damages, liabilities, costs or expenses (including without
limitation legal fees and expenses for enforcement of these obligations
(collectively, the “Liabilities”)
to which any such Indemnified Person may become subject insofar as the
Liabilities arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Covered Disclosure
Information or arise out of or are based upon the omission or alleged omission
to state in the Covered Disclosure Information a material fact required to be
stated therein or necessary in order to make the statements in the Covered
Disclosure Information, in light of the circumstances under which they were
made, not misleading.


Section 9.3 Rating
Surveillance. Lender, at its option, may retain the Rating Agencies to
provide rating surveillance services on any certificates issued in a
Securitization. Such rating surveillance will be at the expense of Lender (the “Rating Surveillance Charge”).


Section 9.4 Exculpation.
Subject to the qualifications below, Lender shall not enforce the liability and
obligation of Borrower to perform and observe the obligations contained in the
Note, this Agreement, the Mortgage or the other Loan Documents by any action or
proceeding wherein a money judgment shall be sought against Borrower, except
that Lender may bring a foreclosure action, an action for specific performance
or any other appropriate action or proceeding to enable Lender to enforce and
realize upon its interest under the Note, this Agreement, the Mortgage and the
other Loan Documents, or in the Property, the Rents following an Event of
Default, or any other collateral given to Lender pursuant to the Loan Documents;
provided, however, that, except as specifically provided herein, any judgment
in any such action or proceeding shall be enforceable against Borrower only to
the extent of Borrower’s interest in the Property, in the Rents following an
Event of Default and in any other collateral given to Lender, and Lender, by
accepting the Note, this Agreement, the Mortgage and the other Loan Documents,
agrees that it shall not sue for, seek or demand any deficiency judgment
against Borrower in any such action or proceeding under or by reason of or
under or in connection with the Note, this Agreement, the Mortgage or the other
Loan Documents. The provisions of this section shall not, however, (a)
constitute a waiver, release or impairment of any obligation evidenced or secured
by any of the Loan Documents; (b) impair the right of Lender to name Borrower
as a party defendant in any action or suit for foreclosure and sale under any
of the Mortgage; (c) affect the validity or enforceability of or any guaranty
made in connection with the Loan or any of the rights and remedies of Lender
thereunder; (d) impair the right of Lender to obtain the appointment of a
receiver; (e) impair the enforcement of any of the Assignment of Leases
following an Event of Default; (f) constitute a prohibition against Lender
commencing any other appropriate action or proceeding in order for Lender to
exercise its remedies against the Property; or (g) constitute a waiver of the
right of Lender to enforce the liability and



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obligation of Borrower, by money judgment or
otherwise, to the extent of any loss, damage, cost, expense, liability, claim
or other obligation incurred by Lender (including attorneys’ fees and costs
reasonably incurred) arising out of or in connection with the following:


(i)      fraud
or intentional misrepresentation by Borrower or any guarantor in connection
with the Loan;


(ii)      the gross
negligence or willful misconduct of Borrower;


(iii)      material
physical waste of the Property;


(iv)      the
breach of any representation, warranty, covenant or indemnification provision
in the Environmental Indemnity or in the Mortgage concerning environmental
laws, hazardous substances and asbestos and any indemnification of Lender with
respect thereto in either document;


(v)      the
removal or disposal of any portion of the Property after an Event of Default;


(vi)      the
misapplication or conversion by Borrower of (A) any insurance proceeds paid by
reason of any loss, damage or destruction to the Property which are not applied
by Borrower in accordance with this Agreement, (B) any awards or other amounts
received in connection with the condemnation of all or a portion of the
Property which are not applied by Borrower in accordance with this Agreement,
or (C) any Rents following an Event of Default;


(vii)      failure
to pay charges for labor or materials or other charges that can create liens on
any portion of the Property; or


(viii)      any
security deposits, advance deposits or any other deposits collected with
respect to the Property which are not delivered to Lender upon a foreclosure of
the Property or action in lieu thereof, except to the extent any such security
deposits were applied in accordance with the terms and conditions of any of the
Leases prior to the occurrence of the Event of Default that gave rise to such
foreclosure or action in lieu thereof.


Notwithstanding
anything to the contrary in this Agreement, the Note or any of the Loan
Documents, (A) the Debt shall be fully recourse to the Borrower and (B) Lender
shall not be deemed to have waived any right which Lender may have under
Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy
Code to file a claim for the full amount of the Debt secured by the Mortgage or
to require that all collateral shall continue to secure all of the Debt owing
to Lender in accordance with the Loan Documents in the event that the (I) first
full monthly payment under the Note is not paid within five (5) days of notice
that such payment is late (provided, however, that such grace period relates
only to the recourse trigger described in this paragraph), or (II) failure of
Borrower to permit on-site inspections of the Property subject to the rights of
Tenants and any applicable cure period set forth in the Loan Documents, to
provide financial information as required under the Loan Documents subject to
any applicable cure period (except for financial information required to be
delivered by a tenant pursuant to the



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applicable Lease that has not been delivered to
Borrower, provided Borrower has requested such financial information from such tenant), or (III) failure of Borrower
to comply with Section 4.1.30 hereof, or (IV) failure of Borrower to
obtain Lender’s prior written consent (to extent such consent is required) to any subordinate financing or other voluntary
lien encumbering the Property, or (V)
failure of Borrower to obtain Lender’s prior written consent to any assignment,
transfer or conveyance of the Property, or any portion thereof, or any interest
therein as required by this
Agreement. Notwithstanding the provision set forth in clause (IV) of this
paragraph, a voluntary lien other than a lien securing an
extension of credit filed against the Property shall not constitute a recourse trigger for purposes of this
paragraph provided such lien (A) is fully bonded to the satisfaction of Lender and discharged of record within ninety
(90) days of filing, or (B) within such ninety (90) day period, Lender receives
affirmative title insurance from the title insurance company insuring the lien of the Mortgage that such lien is
subject and subordinate to the lien of the Mortgage and no enforcement action
is commenced by the applicable lien holder. Upon the acceptance by Lender of any cure by Borrower of a recourse
trigger described in clauses (I),
(II) or (IV) above, the Debt shall no longer be fully recourse to Borrower
solely as a result of such trigger.
Upon the acceptance by Lender of any cure by Borrower of a recourse trigger
described in clauses (III) or (V) above, the Debt shall no longer be fully
recourse to Borrower solely as a result of such trigger, provided, however,
Borrower shall remain liable to the extent of any loss, damage, cost, expense,
liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising
out of or in connection with such trigger.


Section
9.5 Termination of Manager. If (a) the amounts evidenced by the Note have
been accelerated pursuant to Section 8.1(b) hereof, (b) the Manager shall
become bankrupt or insolvent, (c) the Manager is in default under the terms of
the Management Agreement beyond any applicable grace or cure period, or (d)
Manager is not managing the Property in accordance with the management practices of nationally recognized management companies
managing similar properties in
locations comparable to those of the Property, then, in the case of (a), (b), (c)
or (d), Borrower shall, at the request of Lender, terminate the Management
Agreement and replace the Manager with a manager reasonably approved by Lender
on terms and conditions reasonably
satisfactory to Lender, it being understood and agreed that the management fee
for such replacement manager shall not exceed then prevailing market
rates. In addition and without limiting the rights of Lender hereunder or under
any of the other Loan Documents, in the event that
(i) the Management Agreement is terminated, (ii) the Manager no longer manages
the Property, or (iii) a receiver,
liquidator or trustee shall be appointed for Manager or if Manager shall
be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy,
reorganization or arrangement pursuant to federal bankruptcy law, or any
similar federal or state law, shall be filed by
or against, consented to, or acquiesced in by, Manager, or if any proceeding
for the dissolution or liquidation of Manager shall be instituted, then
Borrower (at Borrower’s sole cost and expense) shall immediately, in its name,
establish new deposit accounts separate from any other Person with a depository
satisfactory to Lender into which all Rents and other income from the Property shall be deposited and shall grant
Lender a first priority security interest in such account pursuant to
documentation satisfactory in form and substance to Lender.


Section 9.6 Servicer. At the option of Lender, the Loan may be
serviced by a servicer/trustee (the “Servicer”) selected by Lender and Lender
may delegate all or any portion of
its responsibilities under this Agreement and the other Loan Documents to the
Servicer



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pursuant to a servicing agreement (the “Servicing Agreement”) between
Lender and Servicer. Lender shall be responsible for any set-up fees or any
other costs relating to or arising under the Servicing Agreement.


Section
9.7 Splitting the Loan. At the election of Lender in its sole
discretion, Lender may split the loan into two or more loans, or convert
any portion of the Loan to subordinate
financing, including one or more tranches of mezzanine debt, preferred equity, subordinate
debt or participation in such loan, subordinate to such loan (collectively, “Subordinate Financing”). Borrower hereby agrees to deliver to Lender to
effectuate such severing of the Loan or Subordinate Financing as reasonably
requested by Lender (a) additional executed documents, or amendments and
modifications to the applicable Loan Documents, (b) new opinions or
updates to the opinions delivered to Lender in connection with the closing of
the Loan, (c) endorsements and/or updates
to the title insurance policies delivered to Lender in connection with the closing of the Loan, and (d)
any other certificates, instruments and documentation reasonably
determined by Lender as necessary or appropriate (the items described in
subsections (a) through (d) collectively hereinafter shall be referred to as “Additional Documentation”), which
Additional Documentation shall be acceptable to Lender in form and substance in its reasonable discretion. Notwithstanding the
foregoing, Borrower shall not be
required to execute such Additional Documentation if such Additional Documentation would (i) change the interest rate,
the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other
material economic term of the Loan. At Lender’s option, any severed loan or
Subordinate Financing shall be cross-defaulted with the Loan. If the Subordinate Financing takes the form of a
mezzanine loan, a mezzanine borrower
(the “Mezzanine Borrower”)
may be created which will own 100% of the equity interests in the
Borrower. All of the ownership and economic interests in the Mezzanine Borrower may, at Lender’s discretion, be required
to be pledged as security for such mezzanine loan or other Subordinate
Financing. Such Subordinate Financing shall be subject to an intercreditor agreement by and between the Lender
and the subordinate lender(s). The initial weighted average interest rate for the Loan and any such mezzanine loan
shall equal the Interest Rate. Lender hereby agrees to be responsible for all
reasonable third-party expenses incurred in connection with the preparation and
delivery of the Additional Documentation and or other documentation related to Subordinate Financing
and, if applicable, the effectuation of the uncrossing of the Loan from the Subordinate Financing. Borrower hereby
acknowledges and agrees that upon
such severing of the Loan and/or creation of Subordinate Financing, Lender may effect, in its sole discretion, one or more
Securitizations of which the other Loans may be a part.


ARTICLE
X

MISCELLANEOUS


Section 10.1 Survival.
This Agreement and all covenants, agreements, representations
and warranties made herein and in the certificates delivered pursuant hereto
shall survive the making by Lender of the Loan and the execution and delivery
to Lender of the Note, and shall continue
in full force and effect so long as all or any of the Debt is outstanding and
unpaid unless a longer period is expressly set forth herein or in the other
Loan Documents. Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives,
successors and assigns of such party. All covenants,



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promises and agreements in this Agreement, by or on
behalf of Borrower, shall inure to the benefit of the legal representatives,
successors and assigns of Lender.


Section 10.2 Lender’s
Discretion. Whenever pursuant to this Agreement, Lender exercises any right
given to it to approve or disapprove, or any arrangement or term is to be
satisfactory to Lender, the decision of Lender to approve or disapprove or to
decide whether arrangements or terms are satisfactory or not satisfactory shall
(except as is otherwise specifically herein provided) be in the sole discretion
of Lender and shall be final and conclusive.


Section 10.3 Governing
Law. THIS AGREEMENT SHALL BE DEEMED TO BE
A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF THE STATE IN WHICH THE PROPERTY
IS LOCATED AND SHALL IN ALL RESPECTS BE GOVERNED, CONSTRUED, APPLIED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED
AND APPLICABLE FEDERAL LAWS.


Section 10.4 Modification,
Waiver in Writing. No modification, amendment, extension, discharge,
termination or waiver of any provision of this Agreement, or of the Note, or of
any other Loan Document, nor consent to any departure by Borrower therefrom,
shall in any event be effective unless the same shall be in a writing signed by
the party against whom enforcement is sought, and then such waiver or consent
shall be effective only in the specific instance, and for the purpose, for
which given. Except as otherwise expressly provided herein, no notice to, or
demand on Borrower, shall entitle Borrower to any other or future notice or
demand in the same, similar or other circumstances.


Section 10.5 Delay Not
a Waiver. Neither any failure nor any delay on the part of Lender in
insisting upon strict performance of any term, condition, covenant or
agreement, or exercising any right, power, remedy or privilege hereunder, or
under the Note or under any other Loan Document, or any other instrument given
as security therefor, shall operate as or constitute a waiver thereof, nor
shall a single or partial exercise thereof preclude any other future exercise,
or the exercise of any other right, power, remedy or privilege. In particular, and
not by way of limitation, by accepting payment after the due date of any amount
payable under this Agreement, the Note or any other Loan Document, Lender shall
not be deemed to have waived any right either to require prompt payment when
due of all other amounts due under this Agreement, the Note or the other Loan
Documents, or to declare a default for failure to effect prompt payment of any
such other amount.


Section 10.6 Notices.
All notices, consents, approvals and requests required or permitted hereunder
or under any other Loan Document shall be given in writing and shall be
effective for all purposes if hand delivered or sent by (a) certified or
registered United States mail, postage prepaid, return receipt requested or (b)
expedited prepaid delivery service, either commercial or United States Postal
Service, with proof of attempted delivery, and by telecopier (with answer back
acknowledged), addressed as follows (or at such other address and Person as
shall be designated from time to time by any party hereto, as the case may be,
in a written notice to the other parties hereto in the manner provided for in
this Section):



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  If to Lender:

  
	
   

  	
   

  
	
   

  	
   

  	
  Bear Steams Commercial Mortgage, Inc.

  
	
   

  	
   

  	
  383 Madison Avenue

  
	
   

  	
   

  	
  New York, New York 10179

  
	
   

  	
   

  	
  Attention: J. Christopher Hoeffel

  
	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
   

  	
  Katten Muchin Rosenman LLP

  
	
   

  	
   

  	
  401 South Tryon Street

  
	
   

  	
   

  	
  Suite 2600

  
	
   

  	
   

  	
  Charlotte, North Carolina 28202-1935

  
	
   

  	
   

  	
  Attention: Daniel S. Huffenus, Esq.

  
	
   

  	
   

  	
   

  
	
   

  	
  If to Borrower:

  
	
   

  	
   

  
	
   

  	
   

  	
  MB St. Louis Chestnut, L.L.C.

  
	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
  Oak Brook, IL 60523

  
	
   

  	
   

  	
  Attention: Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
   

  	
  Inland Real Estate Group, Inc.

  
	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
  Oak Brook, IL 60523

  
	
   

  	
   

  	
  Attention: Robert H. Baum, Esq.

  
	
   

  	
   

  	
   

  
	
   

  	
  and with a copy to:

  
	
   

  	
   

  
	
   

  	
   

  	
  Inland American Real Estate Trust, Inc.

  
	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
  Oak Brook, IL 60523

  
	
   

  	
   

  	
  Attention: CFO

  



 


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


Section 10.7 Trial
by Jury. BORROWER AND LENDER HEREBY AGREE
NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES
ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR
HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM
OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL
BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY



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BORROWER AND LENDER, AND IS INTENDED
TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO
A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A
COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER
BY BORROWER AND LENDER.


Section 10.8 Headings.
The Article and/or Section headings and the Table of Contents in this Agreement
are included herein for convenience of reference only and shall not constitute
a part of this Agreement for any other purpose.


Section 10.9 Severability.
Wherever possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.


Section 10.10 Preferences.


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


Section 10.11 Waiver
of Notice. Borrower shall not be entitled to any notices of any nature
whatsoever from Lender except with respect to matters for which this Agreement
or the other Loan Documents specifically and expressly provide for the giving
of notice by Lender to Borrower and except with respect to matters for which
Borrower is not, pursuant to applicable Legal Requirements, permitted to waive
the giving of notice. Borrower hereby expressly waives the right to receive any
notice from Lender with respect to any matter for which this Agreement or the
other Loan Documents do not specifically and expressly provide for the giving
of notice by Lender to Borrower.


Section 10.12 Remedies
of Borrower. In the event that a claim or adjudication is made that Lender
or its agents have acted unreasonably or unreasonably delayed acting in any
case where by law or under this Agreement or the other Loan Documents, Lender
or such agent, as the case may be, has an obligation to act reasonably or
promptly, Borrower agrees that neither Lender nor its agents shall be liable
for any monetary damages, and Borrower’s sole remedies shall be limited to
commencing an action seeking injunctive relief or declaratory judgment. The
parties hereto agree that any action or proceeding to determine whether Lender
has acted reasonably shall be determined by an action seeking declaratory
judgment.



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Section 10.13 Expenses;
Indemnity.


(a) Borrower covenants
and agrees to pay or, if Borrower fails to pay, to reimburse, Lender upon
receipt of written notice from Lender for all reasonable costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred by Lender in
connection with (i) the preparation, negotiation, execution and delivery of
this Agreement and the other Loan Documents and the consummation of the
transactions contemplated hereby and thereby and all the costs of furnishing
all opinions by counsel for Borrower (including without limitation any opinions
requested by Lender as to any legal matters arising under this Agreement or the
other Loan Documents with respect to the Property); (ii) Borrower’s ongoing
performance of and compliance with Borrower’s respective agreements and
covenants contained in this Agreement and the other Loan Documents on its part
to be performed or complied with after the Closing Date, including, without
limitation, confirming compliance with environmental and insurance
requirements; (iii) Lender’s ongoing performance and compliance with all
agreements and conditions contained in this Agreement and the other Loan
Documents on its part to be performed or complied with after the Closing Date;
(iv) except as otherwise provided in this Agreement, the negotiation,
preparation, execution, delivery and administration of any consents,
amendments, waivers or other modifications to this Agreement and the other Loan
Documents and any other documents or matters reasonably requested by Lender;
(v) securing Borrower’s compliance with any requests made pursuant to the
provisions of this Agreement; (vi) the filing and recording fees and expenses,
title insurance and reasonable fees and expenses of counsel for providing to
Lender all required legal opinions, and other similar expenses incurred in
creating and perfecting the Liens in favor of Lender pursuant to this Agreement
and the other Loan Documents; (vii) enforcing or preserving any rights, in
response to third party claims or the prosecuting or defending of any action or
proceeding or other litigation, in each case against, under or affecting
Borrower, this Agreement, the other Loan Documents, the Property, or any other
security given for the Loan; and (viii) enforcing any obligations of or
collecting any payments due from Borrower under this Agreement, the other Loan
Documents or with respect to the Property or in connection with any refinancing
or restructuring of the credit arrangements provided under this Agreement in
the nature of a “work-out” or of any insolvency or bankruptcy proceedings;
provided, however, that Borrower shall not be liable for the payment of any
such costs and expenses to the extent the same arise by reason of the gross
negligence, illegal acts, fraud or willful misconduct of Lender.


(b) Borrower shall
indemnify, defend and hold harmless Lender from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs, expenses and disbursements of any kind or nature
whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel for Lender in connection with any investigative,
administrative or judicial proceeding commenced or threatened, whether or not
Lender shall be designated a party thereto), that may be imposed on, incurred
by, or asserted against Lender in any manner relating to or arising out of (i)
any breach by Borrower of its obligations under, or any material
misrepresentation by Borrower contained in, this Agreement or the other Loan
Documents, or (ii) the use or intended use of the proceeds of the Loan
(collectively, the “Indemnified
Liabilities”), provided, however, that Borrower
shall not have any obligation to Lender hereunder to the extent that such
Indemnified Liabilities arise from the gross negligence, illegal acts, fraud or
willful misconduct of Lender. To the extent that the undertaking to indemnify,
defend and hold harmless set forth in the preceding sentence may be
unenforceable because it violates any law or public policy, Borrower shall pay
the maximum



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portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Lender.


Section 10.14 Schedules
Incorporated. The Schedules annexed hereto are hereby incorporated herein
as a part of this Agreement with the same effect as if set forth in the body
hereof.


Section 10.15 Offsets,
Counterclaims and Defenses. Any assignee of Lender’s interest in and to
this Agreement, the Note and the other Loan Documents shall take the same free
and clear of all offsets, counterclaims or defenses which are unrelated to such
documents which Borrower may otherwise have against any assignor of such
documents, and no such unrelated counterclaim or defense shall be interposed or
asserted by Borrower in any action or proceeding brought by any such assignee
upon such documents and any such right to interpose or assert any such
unrelated offset, counterclaim or defense in any such action or proceeding is
hereby expressly waived by Borrower.


Section 10.16 No Joint
Venture or Partnership; No Third Party Beneficiaries.


(a) Borrower and Lender
intend that the relationships created hereunder and under the other Loan
Documents be solely that of borrower and lender. Nothing herein or therein is
intended to create a joint venture, partnership, tenancy-in-common, or joint
tenancy relationship between Borrower and Lender nor to grant Lender any
interest in the Property other than that of mortgagee, beneficiary or lender.


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


Section 10.17 Publicity.
All news releases, publicity or advertising by Borrower or their Affiliates through
any media intended to reach the general public which refers to the Loan
Documents or the financing evidenced by the Loan Documents, to Lender, Bear
Steams, or any of their Affiliates shall be subject to the prior written
approval of Lender. All news releases, publicity or advertising by Lender
through any media intended to reach the general public which refers solely to
the Borrower or to the Loan made by the Lender to the Borrower shall be subject
to the prior written approval of Borrower, provided however, the foregoing
shall not apply to Provided Information included in disclosure documents in
connection with a Securitization.


Section 10.18 Waiver
of Marshalling of Assets. To the fullest extent permitted by law, Borrower,
for itself and its successors and assigns, waives all rights to a marshalling
of



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the assets of Borrower, Borrower’s partners and others
with interests in Borrower, and of the Property, or to a sale in inverse order
of alienation in the event of foreclosure of the Mortgage or sale of the
Property by power of sale, and agrees not to assert any right under any laws
pertaining to the marshalling of assets, the sale in inverse order of
alienation, homestead exemption, the administration of estates of decedents, or
any other matters whatsoever to defeat, reduce or affect the right of Lender
under the Loan Documents to a sale of the Property for the collection of the
Debt without any prior or different resort for collection or of the right of
Lender to the payment of the Debt out of the net proceeds of the Property in
preference to every other claimant whatsoever.


Section 10.19 Waiver
of Counterclaim. Borrower hereby waives the right to assert a counterclaim,
other than a compulsory counterclaim, in any action or proceeding brought
against it by Lender or its agents.


Section 10.20 Conflict;
Construction of Documents; Reliance. In the event of any conflict between
the provisions of this Loan Agreement and any of the other Loan Documents, the
provisions of this Loan Agreement shall control. The parties hereto acknowledge
that they were represented by competent counsel in connection with the
negotiation, drafting and execution of the Loan Documents and that such Loan
Documents shall not be subject to the principle of construing their meaning against
the party which drafted same. Borrower acknowledges that, with respect to the
Loan, Borrower shall rely solely on its own judgment and advisors in entering
into the Loan without relying in any manner on any statements, representations
or recommendations of Lender or any parent, subsidiary or Affiliate of Lender.
Lender shall not be subject to any limitation whatsoever in the exercise of any
rights or remedies available to it under any of the Loan Documents or any other
agreements or instruments which govern the Loan by virtue of the ownership by
it or any parent, subsidiary or Affiliate of Lender of any equity interest any
of them may acquire in Borrower, and Borrower hereby irrevocably waives the
right to raise any defense or take any action on the basis of the foregoing
with respect to Lender’s exercise of any such rights or remedies. Borrower
acknowledges that Lender engages in the business of real estate financings and
other real estate transactions and investments which may be viewed as adverse
to or competitive with the business of Borrower or its Affiliates.


Section 10.21 Brokers
and Financial Advisors. Borrower hereby represents that it has dealt with
no financial advisors, brokers, underwriters, placement agents, agents or
finders in connection with the transactions contemplated by this Agreement
other than Inland Mortgage Corp. Borrower hereby agrees to indemnify, defend
and hold Lender harmless from and against any and all claims, liabilities,
costs and expenses of any kind (including Lender’s reasonable attorneys’ fees
and expenses) in any way relating to or arising from a claim by any Person that
such Person acted on behalf of Borrower or Lender in connection with the
transactions contemplated herein. The provisions of this Section 10.21 shall
survive the expiration and termination of this Agreement and the payment of the
Debt.


Section 10.22 Prior
Agreements. This Agreement and the other Loan Documents contain the entire
agreement of the parties hereto and thereto in respect of the transactions
contemplated hereby and thereby, and all prior agreements or understandings
among or between such parties, whether oral or written, are superseded by the
terms of this Agreement and the other



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Loan Documents and unless specifically set forth in a
writing contemporaneous herewith the terms, conditions and provisions of such
prior agreement do not survive execution of this Agreement.


Section 10.23 Transfer
of Loan. In the event that Lender transfers the Loan, Borrower shall
continue to make payments at the place set forth in the Note until such time
that Borrower is notified in writing by Lender that payments are to be made at
another place.


Section 10.24 Certain
Additional Rights of Lender (VCOC) Notwithstanding anything to the contrary
contained in this Agreement, Lender shall have:


(a) the right to
routinely consult with and advise Borrower’s management regarding the
significant business activities and business and financial developments of
Borrower; provided, however, that such consultations shall not
include discussions of environmental compliance programs or disposal of
hazardous substances. Consultation meetings should occur on a regular basis (no
less frequently than quarterly) with Lender having the right to call special
meetings at any reasonable times and upon reasonable advance notice;


(b) the right, in
accordance with the terms of this Agreement, to examine the books and records
of Borrower at any reasonable times upon reasonable notice;


(c) the right, in
accordance with the terms of this Agreement, including, without limitation, Section
5.1.11 hereof, to receive monthly, quarterly and year end financial
reports, including balance sheets, statements of income, shareholder’s equity
and cash flow, a management report and schedules of outstanding indebtedness;
and


(d) the right, without
restricting any other rights of Lender under this Agreement (including any
similar right), to approve any acquisition by Borrower of any other significant
property (other than personal property required for the day to day operation of
the Property).


The rights described above in this Section 10.24
may be exercised by any entity which owns and controls, directly or indirectly,
substantially all of the interests in Lender.


Section 10.25 Joint
and Several Liability. If Borrower consists of more than one person or
party, the obligations and liabilities of each person or party shall be joint
and several.


(THE BALANCE OF THIS PAGE
HAS BEEN INTENTIONALLY LEFT BLANK)



 86














 


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


	
  

  	
   

  	
  BORROWER:

  	
   

  
	
   

  	
   

  	
  

  MB ST. LOUIS CHESTNUT, L.L.C.,

  	
   

  
	
   

  	
   

  	
  a Delaware limited liability company

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Minto Builders (Florida), Inc., a Florida
  corporation, its sole member

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Valerie Medina

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:    Valerie Medina

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:      Assistant
  Secretary

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LENDER:

  	
   

  
	
   

  	
   

  	
  

  BEAR STEARNS COMMERCIAL MORTGAGE, INC., 

  	
   

  
	
   

  	
   

  	
  a New York corporation

  	
   

  
	
   

  	
   

  	
  

  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Michael A. Forastiere

  	
   

  
	
   

  	
   

  	
   

  	
  Managing Director

  	
   

  
									



 















 


SCHEDULE I


TENANT DIRECTION LETTER


                                              ,
L.L.C.


                          
      , 200  


AT&T Services, Inc.


                                          


                                          


Re:                 Lease,
dated                                           ,
L.L.C., as landlord, and AT&T Services, Inc. as tenant as the same has been
amended, concerning premises at                                           


Ladies and Gentlemen:


The undersigned hereby
requests that, commencing with the first Rent payment date occurring after the
date hereof, you deliver all Rent to the following address:


 


 


 


Account Name:


Account No.


Attention:


ABA#


 


	
  

  	
   

  	
   

  	
  , L.L.C.,  a Delaware

  	 

	
   

  	
   

  	
  limited liability company

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  By:

  	
  Minto Builders (Florida), Inc., a Florida

  corporation, its sole member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	
   

  	
  Name:

  	 

	
   

  	
   

  	
   

  	
   

  	
  Title:

  	 

								



 









 



SCHEDULE II


Other Leases



 X-2
 






 



SCHEDULE III


REQUIRED REPAIRS


None.



 X-3