exv10w3



 





Exhibit 10.3




LOAN AGREEMENT




Dated as of October 27, 2004




Between




YSI II LLC,

as Borrower




and




LEHMAN BROTHERS HOLDINGS INC. d/b/a LEHMAN CAPITAL, a division of

LEHMAN BROTHERS HOLDINGS INC.,

as Lender




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page

	I.
	DEFINITIONS; PRINCIPLES OF CONSTRUCTION	 	 	1	 
	 
	Section 1.1	 	Definitions	 	 	1	 
	 
	Section 1.2	 	Principles of Construction	 	 	20	 
	II.
	GENERAL TERMS	 	 	20	 
	 
	Section 2.1	 	Loan Commitment; Disbursement to Borrower	 	 	20	 
	 
	 	2.1.1	 	The Loan	 	 	20	 
	 
	 	2.1.2	 	Disbursement to Borrower	 	 	20	 
	 
	 	2.1.3	 	The Note, Security Instruments and Loan Documents	 	 	20	 
	 
	 	2.1.4	 	Use of Proceeds	 	 	20	 
	 
	Section 2.2	 	Interest; Loan Payments; Late Payment Charge	 	 	20	 
	 
	 	2.2.1	 	Interest Generally	 	 	20	 
	 
	 	2.2.2	 	Interest Calculation	 	 	20	 
	 
	 	2.2.3	 	Payments	 	 	21	 
	 
	 	2.2.4	 	Intentionally Deleted	 	 	21	 
	 
	 	2.2.5	 	Payment on Maturity Date	 	 	21	 
	 
	 	2.2.6	 	Payments after Default	 	 	21	 
	 
	 	2.2.7	 	Late Payment Charge	 	 	21	 
	 
	 	2.2.8	 	Usury Savings	 	 	22	 
	 
	 	2.2.9	 	Making of Payments	 	 	22	 
	 
	 	2.2.10	 	Indemnified Taxes	 	 	22	 
	 
	Section 2.3	 	Prepayments	 	 	23	 
	 
	 	2.3.1	 	Voluntary Prepayments	 	 	23	 
	 
	 	2.3.2	 	Mandatory Prepayments	 	 	23	 
	 
	 	2.3.3	 	Prepayments After Default	 	 	24	 
	 
	Section 2.4	 	Defeasance	 	 	24	 
	 
	 	2.4.1	 	Voluntary Defeasance	 	 	24	 
	 
	 	2.4.2	 	Successor Borrower	 	 	26	 
	 
	Section 2.5	 	Release of Property	 	 	26	 
	 
	 	2.5.1	 	Release of all Properties	 	 	26	 
	 
	 	2.5.2	 	Release of Individual Property	 	 	27	 
	 
	 	2.5.3	 	Release on Payment in Full	 	 	28	 
	 
	Section 2.6	 	Manner of Making Payments; Cash Management	 	 	28	 
	 
	 	2.6.1	 	Deposits into Lockbox Account	 	 	28	 
	 
	 	2.6.2	 	Payments Received in the Lockbox Account	 	 	28	 
	 
	 	2.6.3	 	No Deductions, etc	 	 	29	 
	 
	Section 2.7	 	Substitute Property	 	 	29	 
	III.  
	CONDITIONS PRECEDENT	 	 	36	 
	 
	Section 3.1	 	Conditions Precedent to Closing	 	 	36	 







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	 	3.1.1	 	Representations and Warranties; Compliance with Conditions	 	 	36	 
	 
	 	3.1.2	 	Loan Agreement and Note	 	 	36	 
	 
	 	3.1.3	 	Delivery of Loan Documents; Title Insurance; Reports; Leases	 	 	36	 
	 
	 	3.1.4	 	Related Documents	 	 	37	 
	 
	 	3.1.5	 	Delivery of Organizational Documents	 	 	38	 
	 
	 	3.1.6	 	Opinions of Borrower’s Counsel	 	 	38	 
	 
	 	3.1.7	 	Budgets	 	 	38	 
	 
	 	3.1.8	 	Basic Carrying Costs	 	 	38	 
	 
	 	3.1.9	 	Completion of Proceedings	 	 	38	 
	 
	 	3.1.10	 	Payments	 	 	38	 
	 
	 	3.1.11	 	Tenant Estoppels	 	 	38	 
	 
	 	3.1.12	 	Transaction Costs	 	 	38	 
	 
	 	3.1.13	 	Material Adverse Effect	 	 	38	 
	 
	 	3.1.14	 	Leases and Rent Roll	 	 	39	 
	 
	 	3.1.15	 	Tax Lot	 	 	39	 
	 
	 	3.1.16	 	Physical Conditions Reports	 	 	39	 
	 
	 	3.1.17	 	Management Agreement	 	 	39	 
	 
	 	3.1.18	 	Appraisal	 	 	39	 
	 
	 	3.1.19	 	Financial Statements	 	 	39	 
	 
	 	3.1.20	 	Further Documents	 	 	39	 
	IV.  
	REPRESENTATIONS AND WARRANTIES	 	 	39	 
	 
	Section 4.1	 	Borrower Representations	 	 	39	 
	 
	 	4.1.1	 	Organization	 	 	39	 
	 
	 	4.1.2	 	Proceedings	 	 	40	 
	 
	 	4.1.3	 	No Conflicts	 	 	40	 
	 
	 	4.1.4	 	Litigation	 	 	40	 
	 
	 	4.1.5	 	Agreements	 	 	40	 
	 
	 	4.1.6	 	Title	 	 	41	 
	 
	 	4.1.7	 	Solvency / No Bankruptcy Filing	 	 	41	 
	 
	 	4.1.8	 	Full and Accurate Disclosure	 	 	41	 
	 
	 	4.1.9	 	No Plan Assets	 	 	42	 
	 
	 	4.1.10	 	Compliance	 	 	42	 
	 
	 	4.1.11	 	Financial Information	 	 	42	 
	 
	 	4.1.12	 	Condemnation	 	 	42	 
	 
	 	4.1.13	 	Federal Reserve Regulations	 	 	42	 
	 
	 	4.1.14	 	Utilities and Public Access	 	 	43	 
	 
	 	4.1.15	 	Not a Foreign Person	 	 	43	 
	 
	 	4.1.16	 	Separate Lots	 	 	43	 
	 
	 	4.1.17	 	Assessments	 	 	43	 
	 
	 	4.1.18	 	Enforceability	 	 	43	 
	 
	 	4.1.19	 	No Prior Assignment	 	 	43	 
	 
	 	4.1.20	 	Insurance	 	 	43	 
	 
	 	4.1.21	 	Use of Property	 	 	43	 
	 
	 	4.1.22	 	Certificate of Occupancy; Licenses	 	 	43	 
	 
	 	4.1.23	 	Flood Zone	 	 	44	 







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	 	4.1.24	 	Physical Condition	 	 	44	 
	 
	 	4.1.25	 	Boundaries	 	 	44	 
	 
	 	4.1.26	 	Leases	 	 	44	 
	 
	 	4.1.27	 	Survey	 	 	45	 
	 
	 	4.1.28	 	Loan to Value	 	 	45	 
	 
	 	4.1.29	 	Filing and Recording Taxes	 	 	45	 
	 
	 	4.1.30	 	Single Purpose Entity/Separateness	 	 	45	 
	 
	 	4.1.31	 	Management Agreement	 	 	49	 
	 
	 	4.1.32	 	Illegal Activity	 	 	49	 
	 
	 	4.1.33	 	No Change in Facts or Circumstances; Disclosure	 	 	49	 
	 
	 	4.1.34	 	Intellectual Property	 	 	49	 
	 
	 	4.1.35	 	Investment Company Act	 	 	49	 
	 
	 	4.1.36	 	Principal Place of Business; State of Organization	 	 	50	 
	 
	 	4.1.37	 	Business Purposes	 	 	50	 
	 
	 	4.1.38	 	Taxes	 	 	50	 
	 
	 	4.1.39	 	Forfeiture	 	 	50	 
	 
	 	4.1.40	 	Environmental Representations and Warranties	 	 	50	 
	 
	 	4.1.41	 	Taxpayer Identification Number	 	 	51	 
	 
	 	4.1.42	 	OFAC	 	 	51	 
	 
	 	4.1.43	 	Ground Lease Representations	 	 	51	 
	 
	 	4.1.44	 	Embargoed Person	 	 	52	 
	 
	Section 4.2	 	Survival of Representations	 	 	53	 
	V.  
	BORROWER COVENANTS	 	 	53	 
	 
	Section 5.1	 	Affirmative Covenants	 	 	53	 
	 
	 	5.1.1	 	Existence; Compliance with Legal Requirements; Insurance	 	 	53	 
	 
	 	5.1.2	 	Taxes and Other Charges	 	 	54	 
	 
	 	5.1.3	 	Litigation	 	 	55	 
	 
	 	5.1.4	 	Access to Properties	 	 	55	 
	 
	 	5.1.5	 	Notice of Default	 	 	55	 
	 
	 	5.1.6	 	Cooperate in Legal Proceedings	 	 	55	 
	 
	 	5.1.7	 	Perform Loan Documents	 	 	55	 
	 
	 	5.1.8	 	Awards or Insurance Benefits	 	 	55	 
	 
	 	5.1.9	 	Further Assurances	 	 	55	 
	 
	 	5.1.10	 	Supplemental Security Instrument Affidavits	 	 	56	 
	 
	 	5.1.11	 	Financial Reporting	 	 	56	 
	 
	 	5.1.12	 	Business and Operations	 	 	58	 
	 
	 	5.1.13	 	Title to the Properties	 	 	58	 
	 
	 	5.1.14	 	Costs of Enforcement	 	 	58	 
	 
	 	5.1.15	 	Estoppel Statement	 	 	58	 
	 
	 	5.1.16	 	Loan Proceeds	 	 	59	 
	 
	 	5.1.17	 	Performance by Borrower	 	 	59	 
	 
	 	5.1.18	 	Confirmation of Representations	 	 	59	 
	 
	 	5.1.19	 	No Joint Assessment	 	 	59	 
	 
	 	5.1.20	 	Leasing Matters	 	 	59	 
	 
	 	5.1.21	 	Alterations	 	 	60	 







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	 	5.1.22	 	Environmental Covenants	 	 	61	 
	 
	 	5.1.23	 	OFAC	 	 	62	 
	 
	 	5.1.24	 	O&M Program	 	 	62	 
	 
	 	5.1.25	 	The Ground Leases	 	 	62	 
	 
	Section 5.2	 	Negative Covenants	 	 	64	 
	 
	 	5.2.1	 	Operation of Property	 	 	64	 
	 
	 	5.2.2	 	Liens	 	 	64	 
	 
	 	5.2.3	 	Dissolution	 	 	64	 
	 
	 	5.2.4	 	Change In Business	 	 	65	 
	 
	 	5.2.5	 	Debt Cancellation	 	 	65	 
	 
	 	5.2.6	 	Affiliate Transactions	 	 	65	 
	 
	 	5.2.7	 	Zoning	 	 	65	 
	 
	 	5.2.8	 	Assets	 	 	65	 
	 
	 	5.2.9	 	Debt	 	 	65	 
	 
	 	5.2.10	 	No Joint Assessment	 	 	65	 
	 
	 	5.2.11	 	Principal Place of Business	 	 	65	 
	 
	 	5.2.12	 	ERISA	 	 	65	 
	 
	 	5.2.13	 	Transfers	 	 	66	 
	 
	Section 5.3	 	Traded Shares	 	 	69	 
	VI.
	INSURANCE; CASUALTY; CONDEMNATION; REQUIRED REPAIRS	 	 	69	 
	 
	Section 6.1	 	Insurance	 	 	69	 
	 
	Section 6.2	 	Casualty	 	 	73	 
	 
	Section 6.3	 	Condemnation	 	 	73	 
	 
	Section 6.4	 	Restoration	 	 	74	 
	VII.
	RESERVE FUNDS	 	 	78	 
	 
	Section 7.1	 	Required Repair Funds	 	 	78	 
	 
	 	7.1.1	 	Deposits	 	 	78	 
	 
	 	7.1.2	 	Release of Required Repair Funds	 	 	78	 
	 
	Section 7.2	 	Tax and Insurance Escrow Fund	 	 	79	 
	 
	Section 7.3	 	Replacements and Replacement Reserve	 	 	80	 
	 
	 	7.3.1	 	Replacement Reserve Fund	 	 	80	 
	 
	 	7.3.2	 	Disbursements from Replacement Reserve Account	 	 	81	 
	 
	 	7.3.3	 	Performance of Replacements	 	 	82	 
	 
	 	7.3.4	 	Failure to Make Replacements	 	 	84	 
	 
	 	7.3.5	 	Balance in the Replacement Reserve Account	 	 	85	 
	 
	Section 7.4	 	Ground Lease Escrow Fund	 	 	85	 
	 
	Section 7.5	 	Leasing Reserve Fund	 	 	85	 
	 
	 	7.5.1	 	Deposits to Leasing Reserve Fund	 	 	85	 
	 
	 	7.5.2	 	Withdrawals of Leasing Reserve Funds	 	 	85	 
	 
	Section 7.6	 	Reserve Funds, Generally	 	 	86	 
	VIII.  
	DEFAULTS	 	 	86	 
	 
	Section 8.1	 	Event of Default	 	 	86	 
	 
	Section 8.2	 	Remedies	 	 	90	 







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	 	Section 8.3	 	Remedies Cumulative; Waivers	 	 	91	 
	IX.  
	SPECIAL PROVISIONS	 	 	91	 
	 
	 	Section 9.1	 	Sale of Notes and Securitization	 	 	91	 
	 
	 	Section 9.2	 	Securitization Indemnification	 	 	93	 
	 
	 	Section 9.3	 	Intentionally Deleted	 	 	95	 
	 
	 	Section 9.4	 	Exculpation	 	 	95	 
	 
	 	Section 9.5	 	Management Agreement	 	 	97	 
	 
	 	Section 9.6	 	Servicer	 	 	99	 
	 
	 	Section 9.7	 	Restructuring of Mortgage and/or Mezzanine Loan	 	 	99	 
	X.
	MISCELLANEOUS	 	 	101	 
	 
	 	Section 10.1	 	Survival	 	 	101	 
	 
	 	Section 10.2	 	Lender’s Discretion	 	 	101	 
	 
	 	Section 10.3	 	Governing Law	 	 	101	 
	 
	 	Section 10.4	 	Modification, Waiver in Writing	 	 	103	 
	 
	 	Section 10.5	 	Delay Not a Waiver	 	 	103	 
	 
	 	Section 10.6	 	Notices	 	 	103	 
	 
	 	Section 10.7	 	Trial by Jury	 	 	104	 
	 
	 	Section 10.8	 	Headings	 	 	104	 
	 
	 	Section 10.9	 	Severability	 	 	105	 
	 
	 	Section 10.10	 	Preferences	 	 	105	 
	 
	 	Section 10.11	 	Waiver of Notice	 	 	105	 
	 
	 	Section 10.12	 	Remedies of Borrower	 	 	105	 
	 
	 	Section 10.13	 	Expenses; Indemnity	 	 	105	 
	 
	 	Section 10.14	 	Schedules Incorporated	 	 	107	 
	 
	 	Section 10.15	 	Offsets, Counterclaims and Defenses	 	 	107	 
	 
	 	Section 10.16	 	No Joint Venture or Partnership; No Third Party Beneficiaries	 	 	107	 
	 
	 	Section 10.17	 	Publicity	 	 	108	 
	 
	 	Section 10.18	 	Cross-Default; Cross-Collateralization; Waiver of Marshalling of Assets	 	 	108	 
	 
	 	Section 10.19	 	Waiver of Counterclaim	 	 	109	 
	 
	 	Section 10.20	 	Conflict; Construction of Documents; Reliance	 	 	109	 
	 
	 	Section 10.21	 	Brokers and Financial Advisors	 	 	109	 
	 
	 	Section 10.22	 	Prior Agreements	 	 	109	 







v









 






SCHEDULES




	 	 	 	 	 
	Schedule I

	 	-
	 	Properties — Allocated Loan Amounts
	Schedule II

	 	-
	 	Ground Leases
	Schedule III

	 	-
	 	O&M Program Properties
	Schedule 4.1.1

	 	-
	 	Organizational Chart
	Schedule 4.1.4

	 	-
	 	Litigation
	Schedule 4.1.5

	 	-
	 	Material Agreements
	Schedule 4.1.26

	 	-
	 	Major Leases
	Schedule 4.1.30

	 	-
	 	Non-Consolidation Opinion
	Schedule 4.1.31

	 	-
	 	Properties Not Operated as a U-Store-It Facility
	Schedule 7.1.1

	 	-
	 	Required Repairs
	Schedule 7.3.2

	 	-
	 	Replacement Reserves







vi









 







LOAN AGREEMENT




          THIS LOAN AGREEMENT, dated as of October 27th      , 2004 (as amended,
restated, replaced, supplemented or otherwise modified from time to time, this
“Agreement”), between LEHMAN BROTHERS HOLDINGS INC. d/b/a LEHMAN
CAPITAL, a division of LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation,
having an address at 399 Park Avenue, New York, New York 10022
(“Lender”) and YSI II LLC, a Delaware limited liability company, having
an address at 6745 Engle Road, Suite 300, Middleburg Heights, Ohio 44130
(“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:



     I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION



     Section 1.1 Definitions.



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



          “Acceptable Accountant” shall mean a “Big Four” accounting firm or
other independent certified public accountant acceptable to Lender.



          “Accounts” shall have the meaning set forth in the Cash Management
Agreement.



          “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.



          “Agent” shall have the meaning set forth in the Cash Management
Agreement.



          “Allocated Loan Amount” shall mean, for an Individual Property, the
amount set forth on Schedule Iattached hereto.



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



 









 





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



          “Applicable Interest Rate” shall mean 5.325% per annum.



          “Approved Appraisal” shall mean, with respect to an Individual
Property, an appraisal of such Individual Property (i) executed and delivered
to Lender by a qualified MAI appraiser having no direct or indirect interest in
such Individual Property or any loan secured in whole or in part thereby and
whose compensation is not affected by the approval or disapproval of such
appraisal by Lender; (ii) addressed to Lender and its successors and assigns;
(iii) satisfying the requirements of the Federal National Mortgage Association
or the Federal Home Loan Mortgage Corporation and Title XI of the Federal
Institutions Reform, Recovery and Enforcement Act of 1989 and the regulations
promulgated thereunder, all as in effect on the date of such calculation, with
respect to such appraisal and the appraiser making such appraisal and (iv)
otherwise satisfactory to Lender in all respects in Lender’s sole
discretion.



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



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



          “Bankruptcy Code” shall mean Title 11 U.S.C. § 101 et seq., and the
regulations adopted and promulgated pursuant thereto (as the same may be
amended from time to time).



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



          “Borrower” shall mean YSI II LLC, a Delaware limited liability
company, together with its successors and permitted assigns.



          “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 GAAP (including expenditures for building
improvements or major repairs, leasing commissions and tenant improvements).



2









 





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



          “Casualty” shall have the meaning specified in Section 6.2 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 of the funding of the Loan.



          “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
any Individual Property, or any interest therein or right accruing thereto,
including any right of access thereto or any change of grade affecting such
Individual Property or any part thereof.



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



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



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



          “Debt Service” shall mean, with respect to any particular period of
time, all principal and/or 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 Properties, or (ii) amounts paid to the
Reserve Funds, less (A) management fees equal to the greater
of (1) assumed




3









 






	 	 	 	management fees of three percent (3%) of Gross
Income from Operations or (2) the actual management fees
incurred, and (B) actual Replacement Reserve Fund
contributions equal to an annual amount of $0.15 per square
foot of gross leaseable area at the Properties; and
	 
	 	(b)	 	the denominator is the aggregate amount of
principal and interest due and payable on the Note or, in the
event a Defeasance Event has occurred, the Undefeased Note,
for such 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 Legal Rate or (b) three percent
(3%) above the Applicable Interest Rate.



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



          “Defeasance Deposit” shall mean an amount equal to the remaining
principal amount of the Note or the Defeased Note, as applicable, the Yield
Maintenance Premium, any costs and expenses incurred or to be incurred in the
purchase of U.S. Obligations necessary to meet the Scheduled Defeasance
Payments and any revenue, documentary stamp or intangible taxes or any other
tax or charge due in connection with the transfer of the Note or the Defeased
Note, as applicable, the creation of the Defeased Note and the Undefeased Note,
if applicable, or otherwise required to accomplish the agreements of Sections
2.3 and 2.4 hereof.



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



          “Defeased Note” shall have the meaning set forth in Section
2.4.1(a)(v) hereof.



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



          “East Hanover Property” shall mean the Individual Property located
at 307 E. Hanover Avenue, Morris Township, New Jersey.



          “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.



4









 





          “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-1
by S&P, P-1 by Moody’s and F-1+ by Fitch 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 “Aa2” by Moody’s).



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



          “Environmental Indemnity” shall mean that certain Environmental and
Hazardous Substance Indemnification 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 Laws” shall have the meaning set forth in the
Environmental Indemnity.



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



          “Environmental Report” shall have the meaning set forth in Section
4.1.40 hereof.



          “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.



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



          “Fee Estate” shall mean, with respect to any Ground Lease, the fee
interest of the lessor under such Ground Lease in the Land and the Improvements
demised under such Ground Lease.



          “Fee Owner” shall mean, with respect to any Ground Lease, the owner
of the lessor’s interest in such Ground Lease and the related Fee Estate.



          “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.



          “Fitch” shall mean Fitch IBCA, Inc.



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



          “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.



5









 





          “Gross Income from Operations” shall mean all income, computed in
accordance with GAAP, derived from the ownership and operation of the
Properties from whatever source, including, but not limited to, Rents,
utility charges, escalations, forfeited security deposits, interest on credit
accounts, service fees or charges, license fees, parking fees, rent concessions
or credits, and other required pass-throughs but excluding sales, use
and occupancy or other taxes on receipts required to be accounted for by
Borrower to any Governmental Authority, refunds and uncollectible accounts,
sales of furniture, fixtures and equipment, Insurance Proceeds (other than
business interruption or other loss of income insurance), Awards, unforfeited
security deposits, utility and other similar deposits and any disbursements to
Borrower from the Reserve Funds, all as approved by Lender. Gross income shall
not be diminished as a result of the Security Instrument or the creation of any
intervening estate or interest in the Properties or any part thereof.



          “Ground Lease” shall mean, individually and collectively, as the
context may require, each ground lease described on
Schedule II attached
hereto and made a part hereof as such Schedule may be amended from time to time
upon the release and/or substitution of an Individual Property.



          “Ground Lease Escrow Fund” shall have the meaning set forth in
Section 7.4 hereof.



          “Ground Lease Estoppel” shall mean that certain estoppel
certificate and agreement given by Fee Owner for the benefit of Lender and
containing certain statements and agreements relating to the Ground Lease.



          “Ground Rent” shall mean the amount of monthly rent and other
charges due and payable by Borrower under the Ground Lease.



          “Guarantor” shall mean U-Store-It, L.P., a Delaware limited
partnership.



          “Guaranty” shall mean that certain Guaranty executed by Guarantor,
dated the date hereof, as the same may be amended, restated, replaced,
supplemented, or otherwise modified from time to time.



          “Hazardous Substances” shall have the meaning set forth in the
Environmental Indemnity.



          “Improvements” shall have the meaning set forth in the granting
clause of the related Security Instrument with respect to each Individual
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



6









 





entity, or
otherwise to assure a creditor against loss; and (g) obligations secured by any
Liens, whether or not the obligations have been assumed.



          “Indemnified Parties” shall mean Lender, any Person who is or will
have been involved in the origination of the Loan, any Person who is or will
have been involved with the servicing of the Loan, any Person in whose name the
encumbrance created by the Security Instrument is or will have been recorded,
Persons and entities who may hold or acquire or will have held a full or
partial interest in the Loan (including, but not limited to, Investors or
prospective Investors in the Securities, as well as custodians, trustees and
other fiduciaries who hold or have held a full or partial interest in the Loan
for the benefit of third parties) as well as the respective directors,
officers, shareholders, partners, employees, agents, servants, representatives,
contractors, subcontractors, affiliates, subsidiaries, participants, successors
and assigns of any and all of the foregoing (including but not limited to any
other Person who holds or acquires or will have held a participation or other
full or partial interest in the Loan or the Properties, whether during the term
of the Loan or as a part of or following a foreclosure of the Loan and
including, but not limited to, any successors by merger, consolidation or
acquisition of all or a substantial portion of Indemnitee’s assets and
business).



          “Indemnified Taxes” shall mean any present or future income, stamp
or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority.



          “Independent Director” shall have the meaning set forth in Section
4.1.30(p) hereof.



          “Individual LTV Ratio” shall mean, with respect to an Individual
Property, the ratio of (a) the Allocated Loan Amount for such Individual
Property to (b) fair market value of such Individual Property set forth in an
Approved Appraisal.



          “Individual Property” shall mean each parcel of real property, the
Improvements thereon and all personal property owned by Borrower and encumbered
by a Security Instrument, together with all rights pertaining to such property
and Improvements, as more particularly described in the granting clauses of
each Security Instrument and referred to therein as the “Property”; a list of
all Individual Properties on the date hereof appears on Schedule I
attached hereto.



          “Insolvency Opinion” shall mean that certain opinion letter dated
the date hereof delivered by Hogan & Hartson L.L.P. in connection with the
Loan.



          “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.



          “Intellectual Property” shall mean patents, licenses, franchises,
trademarks, trademark rights, trade names, trade name rights, trade secrets and
copyrights.



          “Interest Only Payment Amount” shall have the meaning set forth in
Section 2.2.3 hereof.



7









 






          “Interest Period” shall mean, with respect to the application of
the Interest Only Payment Amount and the Monthly Debt Service Payment Amount
paid by Borrower on a Payment Date, the period commencing on the eleventh
(11th) day of the prior calendar month to and including the tenth (10th) day of
the calendar month in which such Payment Date occurs.



          “Investor” shall mean each purchaser, transferee, assignee,
servicer, participant or investor in such Securities or any credit rating
agency rating such Securities.



          “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 any
Individual Property and every modification, amendment or other agreement
relating to such lease, sublease, subsublease, or other agreement entered into
in connection with such lease, sublease, subsublease, or other agreement and
every guarantee of the performance and observance of the covenants, conditions
and agreements to be performed and observed by the other party thereto.



          “Leasing Reserve Account” shall have the meaning set forth in the
Cash Management Agreement.



          “Leasing Reserve Fund” shall have the meaning set forth in Section
7.5.1 hereof.



          “Lease Termination Payments” shall mean all payments made to
Borrower in connection with any termination, cancellation, surrender, sale or
other disposition of any Lease.



          “Legal Requirements” shall mean, with respect to each Individual
Property, all Federal, State, county, municipal and other governmental
statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and
injunctions of Governmental Authorities affecting such Individual 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 such Individual Property or any part thereof, including, without
limitation, any which may (a) require repairs, modifications or alterations in
or to such Individual Property or any part thereof, or (b) in any way limit the
use and enjoyment thereof.



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



          “Lehman Group” shall have the meaning set forth in Section 9.2(b)
hereof.



          “Lender” shall mean Lehman Brothers Holdings Inc. d/b/a Lehman
Capital, a division of Lehman Brothers Holdings Inc., a Delaware corporation,
together with its successors and assigns.



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



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




8










 





          “Lien” shall mean, with respect to an Individual Property, any
mortgage, deed of trust, lien, pledge, hypothecation, assignment, security
interest, or any other encumbrance (but excluding any easements permitted by
Section 5.2.13 hereof), charge or transfer of, on or affecting Borrower, the
related Individual 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.



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



          “Loan to Value Ratio” shall mean, as of the date of its
calculation, the ratio of (i) the sum of the outstanding principal amount of
the Loan as of the date of such calculation to (ii) the most recent appraised
value of the Properties (according to the most recent Approved Appraisal
available to Lender).



          “Lockbox Account” shall mean the account, if any, specified in the
Cash Management Agreement for deposit of Rents and other receipts from the
Properties.



          “Major Lease” shall mean any Lease which together with all other
Leases to the same tenant and to all Affiliates of such tenant, (i) provides
for rental income representing ten percent (10%) or more of the total rental
income for the applicable Individual Property; or (ii) covers (A) ten percent
(10%) or more, or (B) 4,000 square feet or more, of the total leaseable area of
the related Individual Property.



          “Management Agreement” shall mean, with respect to any Individual
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 such Individual Property.



          “Manager” shall mean YSI Management LLC, a Delaware limited
liability company, or, if the context requires, a Qualifying Manager who is
managing the Properties or any Individual Property in accordance with the terms
and provisions of this Agreement.



          “Material Adverse Effect” shall mean any condition which causes or
continues the occurrence of an Event of Default or has a material adverse
effect upon (i) the business, operations, properties, assets, prospects,
corporate structure or condition (financial or otherwise) of Borrower or any
Guarantor, individually or taken as a whole, (ii) the ability of Borrower or
any Guarantor to perform, or of Lender to enforce, any of their obligations
under the Loan Documents or (iii) the value of the Properties, individually or
taken as a whole.



9









 





          “Maturity Date” shall mean January 11, 2011, 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.



          “Monthly Debt Service Payment Amount” shall mean a constant monthly
payment of $524,264.00.



          “Monthly Ground Rent Deposit” shall have the meaning set forth in
Section 7.4 hereof.



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



          “Net Cash Flow” for any period shall mean 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” for any period shall mean 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 Operating Expenses from Gross Income from Operations.



          “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.



          “Nondisqualification Opinion” shall mean an opinion of tax counsel,
which shall be independent outside counsel, to the effect that a contemplated
action would not materially adversely affect the Federal income tax status as a
REMIC, trust or other vehicle of any REMIC, trust or other vehicle in which the
Loan may be included at the time such opinion is required.



          “Non-U.S. Entity” shall have the meaning set forth in Section
2.2.10(b) hereof.



          “Note” shall mean that certain note of even date herewith in the
principal amount of NINETY MILLION AND 00/100 DOLLARS ($90,000,000.00), made by
Borrower in favor of Lender, as the same may be amended, restated, replaced,
supplemented or otherwise modified



10









 







from time to time, including any Defeased
Note and Undefeased Note that may exist from time to time.



          “O&M Program” shall mean, with respect to each Individual Property
listed on Schedule III attached hereto, the asbestos operations and
maintenance program developed by Borrower and approved by Lender, as the same
may be amended, replaced, supplemented or otherwise modified from time to time.



          “Officer’s Certificate” shall mean a certificate delivered to
Lender by Borrower which is signed by an authorized senior officer of the
general partner of the sole member Borrower.



          “Operating Expenses” shall mean the total of all expenditures,
computed in accordance with GAAP, of whatever kind relating to the operation,
maintenance and management of the Properties 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, all
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 any Individual Property, now or hereafter levied or
assessed or imposed against such Individual Property or any part thereof.



          “Payment Date” shall mean the eleventh (11th) 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 an Individual
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 Policies relating to such Individual Property or any part
thereof, (c) Liens, if any, for Taxes imposed by any Governmental Authority not
yet due or delinquent, and (d) such other title and survey exceptions as Lender
has approved or may approve in writing in Lender’s sole discretion, which
Permitted Encumbrances in the aggregate do not materially adversely affect the
value or use of such Individual Property or Borrower’s ability to repay the
Loan.



          “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 Monthly Payment Date
following the date of acquiring such investment and meeting one of the
appropriate standards set forth below:



11









 





               (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, 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



12









 







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 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 or mutual 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 or mutual
funds; and



13









 





               (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 Owner” shall mean a Person who satisfies (i), (ii) or
(iii) below:



          (i) a Qualified Transferee;



          (ii) a Sponsor; or



          (iii) any Person, prior to a Securitization, approved by Lender (such
approval not to be unreasonably withheld) or, regarding which, after a
Securitization, Lender has received confirmation from the Rating Agencies that
such transfer shall not result in a downgrade, qualification or withdrawal of
the then-current ratings assigned to the Securities.



          “Permitted Prepayment Date” shall have the meaning set forth in
Section 2.3.1 hereof.



          “Permitted Release Date” shall mean the date that is the earlier of
(a) three (3) years from the Closing Date or (b) two (2) years from the
“startup day” within the meaning of Section 860G(a)(9) of the Code of the REMIC
Trust.



          “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 Security Instrument with respect to each Individual
Property.



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



14









 





          “Plan” shall mean an employee benefit plan (as defined in section
3(3) of ERISA) whether or not subject to ERISA or a plan or other arrangement
within the meaning of Section 4975 of the Code.



          “Plan Assets” shall mean assets of a Plan within the meaning of
section 29 C.F.R. Section 2510.3-101 or similar law.



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



          “Prohibited Person” shall mean any Person:



          (a) listed in the Annex to, or otherwise subject to the provisions of, the
Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001,
and relating to Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism (the “Executive
Order”);



          (b) that is owned or controlled by, or acting for or on behalf of, any
person or entity that is listed to the Annex to, or is otherwise subject to the
provisions of, the Executive Order;



          (c) with whom Lender is prohibited from dealing or otherwise engaging in
any transaction by any terrorism or money laundering law, including the
Executive Order;



          (d) who commits, threatens or conspires to commit or supports “terrorism”
as defined in the Executive Order;



          (e) that is named as a “specially designated national and blocked person”
on the most current list published by the U.S. Treasury Department Office of
Foreign Assets Control at its official website,
http://www.treas.gov.ofac/t11sdn.pdf or at any replacement website or other
replacement official publication of such list; or



          (f) who is an Affiliate of or affiliated with a Person listed above.



          “Properties” shall mean, collectively, each and every Individual
Property which is subject to the terms of this Agreement.



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



          “Qualified Transferee” shall mean any one of the following Persons:




	(i)	 	a pension fund, pension trust or pension account
that (a) has total real estate assets of at least $1 Billion
and (b) is managed by a Person who controls at least $1
Billion of real estate equity assets; or
	 
	(ii)	 	a pension fund advisor who (a) immediately prior
to such transfer, controls at least $1 Billion of real estate
equity assets and (b) is acting on behalf of




15









 






	 	 	one or more
pension funds that, in the aggregate, satisfy the requirements
of clause (i) of this definition; or
	 
	(iii)	 	an insurance company which is subject to
supervision by the insurance commissioner, or a similar
official or agency, of a State or territory of the United
States (including the District of Columbia) (a) with a net
worth, as of a date no more than six (6) months prior to the
date of the transfer of at least $500 Million and (b) who,
immediately prior to such transfer, controls real estate
equity assets of at least $1 Billion; or
	 
	(iv)	 	a corporation organized under the banking laws of
the United States or any State or territory of the United
States (including the District of Columbia) (a) with a
combined capital and surplus of at least $500 Million and (b)
who, immediately prior to such transfer, controls real estate
equity assets of at least $1 Billion; or
	 
	(v)	 	any Person (a) with a long-term unsecured debt
rating from each of the Rating Agencies of at least investment
grade or (b) who (i) owns or operates at least one hundred
(100) self-service storage facilities totaling at least 5
million square feet of gross leasable area, (ii) has a net
worth, as of a date no more than six (6) months prior to the
date of such transfer, of at
least $500 Million and (iii) immediately prior to such
transfer, controls real estate equity assets of at least $1
Billion .





          “Qualifying Manager” shall mean (i) YSI Management LLC, a Delaware
limited liability company or (ii) a reputable and experienced management
organization possessing experience in managing properties similar in size,
scope and value to the Property, provided that (a) prior to a Securitization,
Borrower shall have obtained the prior written consent of Lender for such
entity which consent shall not be unreasonably withheld and (b) after a
Securitization, Borrower shall have obtained prior written confirmation from
the Rating Agencies that management of the Property by such entity will not, in
and of itself, cause a downgrade, withdrawal or qualification of the then
current ratings of the Securities issued pursuant to the Securitization.



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



          “Registration Statement” shall have the meaning set forth in
Section 9.2(b) hereof.



          “Release” shall have the meaning set forth in the Environmental
Indemnity.



          “Release Amount” shall mean, for an Individual Property, the
product of the Allocated Loan Amount for such Individual Property and one
hundred twenty-five percent (125%).



          “Released Individual Property” shall have the meaning set forth in
Section 2.5.2 hereof.



16









 





          “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 each Individual 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, forfeited security deposits, 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 Individual
Property, and proceeds, if any, from business interruption or other loss of
income insurance.



          “Replaced Property” shall have the meaning set forth in Section
2.7(a) hereof.



          “Replacement Management Agreement” shall mean, collectively, (a)
either (i) a management agreement with a Qualifying Manager substantially in
the same form and substance as the Management Agreement, or (ii) a management
agreement with a Qualifying
Manager, which management agreement shall be acceptable to Lender in form
and substance, provided, with respect to this subclause (ii), Lender, at its
option, may require that Borrower obtain confirmation from the applicable
Rating Agencies that such management agreement will not result in a downgrade,
withdrawal or qualification of the initial, or if higher, then current rating
of the Securities or any class thereof; and (b) a conditional assignment of
management agreement substantially in the form of the Assignment of Management
Agreement (or such other form acceptable to Lender), executed and delivered to
Lender by Borrower and such Qualifying Manager at Borrower’s expense.




          “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 mean (i) $15,975.00, or
(ii) following the release of an Individual Property from the lien of its
related Security Instrument pursuant to Section 2.5 hereof or following the
release and substitution of an Individual Property pursuant to Section 2.7
hereof, an amount equal to (A) the aggregate square footage of all Improvements
at the Properties after giving effect to such release or substitution times (B)
$0.15, divided by 12.



          “Replacements” shall have the meaning set forth in Section 7.3.1
hereof.



          “Required Repair Account” shall have the meaning set forth in the
Cash Management Agreement.



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



17









 





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



          “Reserve Funds” shall mean the Required Repair Fund, Tax and
Insurance Escrow Fund, the Replacement Reserve Fund, the Ground Lease Escrow
Fund or any other escrow fund established or required by the Loan Documents.



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



          “Restricted Party” shall mean Borrower, SPC Party, Guarantor,
Sponsor or any affiliated Manager or any shareholder, partner, member or
non-member manager, or any direct or indirect legal or beneficial owner of,
Borrower, SPC Party, Guarantor, Sponsor, any affiliated Manager or any
non-member manager.



          “Scheduled Defeasance Payments” shall have the meaning set forth in
Section 2.4.1(b) 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(a)
hereof.



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



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



          “Security Instrument” shall mean, with respect to each Individual
Property, that certain first priority Mortgage (or Deed of Trust or Deed to
Secure Debt, as applicable) and Security Agreement, executed and delivered by
Borrower as security for the Loan and encumbering such Individual Property, as
the same may be amended, restated, replaced, supplemented or otherwise modified
from time to time.



          “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.



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



          “SPC Party” shall have the meaning set forth in Section 4.1.30(o)
hereof.



          “Special Purpose Entity” shall mean a Person which satisfies the
requirements of Section 4.1.30 hereof.



          “Sponsor” shall mean U-Store-It Trust, a Maryland real estate
investment trust.



18









 





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



          “Substitute Property” shall have the meaning set forth in Section
2.7(a) hereof.



          “Substitute Security Instrument” shall have the meaning set forth
in Section 2.7(a) hereof.



          “Substitution” shall have the meaning set forth in Section 2.7(a)
hereof.



          “Substitution Date” shall have the meaning set forth in Section
2.7(c)(iv) hereof.



          “Successor Borrower” shall have the meaning set forth in Section
2.4.2 hereof.



          “Survey” shall mean a survey of the Individual Property in question
delivered to Lender and which survey has been prepared by a surveyor licensed
in the State and satisfactory to Lender and the company or companies issuing
the Title Insurance Policies, 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.



          “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 any Individual Property or part thereof.



          “Tax Opinion” shall mean an opinion of competent counsel to the
effect that a contemplated action (a) will not result in any deemed exchange
pursuant to Section 1001 of the Code of the Note; and (b) will not adversely
affect the Note status as indebtedness for Federal income tax purposes.



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



          “Traded Entity” shall have the meaning set forth in Section
5.2.13(h) hereof.



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



          “Undefeased Note” shall have the meaning set forth in Section
2.4.1(a)(v) hereof.



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



          “U.S. Obligations” shall mean direct non-callable obligations of
the United States of America.



19









 





          “Yield Maintenance Premium” shall mean the amount (if any) which,
when added to the remaining principal amount of the Note or the principal
amount of a Defeased Note, as applicable, will be sufficient to purchase U.S.
Obligations providing the required Scheduled Defeasance Payments.



     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.




	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, Security Instruments and Loan Documents. The Loan
shall be evidenced by the Note and secured by the Security Instrument, 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) pay the cost of the acquisition of the Properties, (b) repay and
discharge any existing loans relating to the Properties, (c) pay all past-due
Basic Carrying Costs, if any, in respect of the Properties, (d) make deposits
into the Reserve Funds on the Closing Date in the amounts provided herein, (e)
pay costs and expenses incurred in connection with the Closing of the Loan, as
approved by Lender, (f) fund any working capital requirements of the
Properties, and (g) 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 the Closing Date to but excluding the
Maturity Date at the Applicable Interest Rate.



     2.2.2 Interest Calculation. Interest on the outstanding principal
balance of the Loan shall be calculated by multiplying (a) the actual number of
days elapsed in the period for which



20









 







the calculation is being made by (b) a
daily rate based on a three hundred sixty (360) day year by (c) the outstanding
principal balance.



     2.2.3 Payments. 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 eleventh day of the
next succeeding calendar month, (b) on
December 11, 2004 and on each Payment Date thereafter through and
including the Payment Date occurring on November 11, 2005, interest only on the
outstanding principal balance of the Loan (the “Interest Only Payment
Amount”), and (c) on each Payment Date commencing with the Payment Date
occurring on December 11, 2005 up to and including the Maturity Date, an amount
equal to the Monthly Debt Service Payment Amount, which payments shall be
applied first to accrued and unpaid interest on the Loan for the prior Interest
Period and the balance to the outstanding principal of the Loan.



     2.2.4 Intentionally Deleted.



     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
Security Instruments and the other Loan Documents.



     2.2.6 Payments after Default. Upon the occurrence and during the
continuance of an Event of Default, (a) 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 and (b) Lender shall be entitled to receive and
Borrower shall pay to Lender on each Payment Date an amount equal to the Net
Cash Flow After Debt Service for the prior month, such amount to be applied by
Lender to the payment of the Debt in such order as Lender shall determine in
its sole discretion, including, without limitation, alternating applications
thereof between interest and principal. Interest at the Default Rate and Net
Cash Flow After Debt Service shall both be computed from the occurrence of the
Event of Default until 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 secured by the Security
Instruments. This paragraph shall not be construed as an agreement or
privilege to extend the date of the payment of the Debt, nor as a waiver of any
other right or remedy accruing to Lender by reason of the occurrence of any
Event of Default; the acceptance of any payment of Net Cash Flow After Debt
Service shall not be deemed to cure or constitute a waiver of any Event of
Default; and Lender retains its rights under this Note to accelerate and to
continue to demand payment of the Debt upon the happening of any Event of
Default, despite any payment of Net Cash Flow After Debt Service.



     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 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



21









 







compensate
Lender for the loss of the use of such delinquent payment. Any such amount
shall be secured by the Security Instruments and the other Loan Documents to
the extent permitted by applicable law.



     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 Applicable
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.



     2.2.9 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 noon, 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 immediately
preceding Business Day.



     2.2.10 Indemnified Taxes.



     (a) All payments made by Borrower hereunder shall be made free and clear
of, and without reduction for or on account of, Indemnified Taxes, excluding
(i) Indemnified Taxes measured by Lender’s net income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which Lender is resident
or organized, or any political subdivision thereof, (ii) taxes measured by
Lender’s overall net income, and franchise taxes imposed on it, by the
jurisdiction of Lender’s applicable lending office or any political subdivision
thereof or in which Lender is resident or engaged in business, and (iii)
withholding taxes imposed by the United States of America, any State,
commonwealth, protectorate territory or any political subdivision or taxing
authority thereof or therein as a result of the failure of Lender which is a
Non-U.S. Entity to comply with the terms of paragraph (b) below. If any non
excluded Indemnified Taxes are required to be withheld from any amounts payable
to Lender hereunder, the amounts so payable to Lender shall be increased to the
extent necessary to yield to Lender (after payment of all non excluded
Indemnified Taxes) interest or any such other amounts payable hereunder at the
rate or in the amounts specified hereunder. Whenever any non excluded
Indemnified Tax is payable pursuant to applicable law by Borrower, Borrower
shall send to Lender an original official receipt showing payment of such non
excluded Indemnified Tax or other evidence of payment reasonably satisfactory
to Lender. Borrower hereby indemnifies Lender for any incremental



22









 







taxes, interest or penalties that may become payable by Lender which may result from
any failure by Borrower to pay any such non excluded Indemnified Tax when due
to the appropriate taxing authority or any failure by Borrower to remit to
Lender ender the required receipts or other required documentary evidence.



     (b) In the event that Lender or any successor and/or assign of Lender is
not incorporated under the laws of the United States of America or a State
thereof (a “Non-U.S. Entity”) Lender agrees that, prior to the first
date on which any payment is due such entity hereunder, it will deliver to
Borrower two duly completed copies of United States Internal Revenue Service
Form W-8BEN or W-8ECI or successor applicable form, as the case may be,
certifying in each case that such entity is entitled to receive payments under
the Note, without deduction or withholding of any United States Federal income
taxes. Each entity required to deliver to Borrower a Form W-8BEN or W-8ECI
pursuant to the preceding sentence further undertakes to deliver to Borrower
two further copies of such forms, or successor applicable forms, or other
manner of certification, as the case may be, on or before the date that any
such form expires (which, in the case of the Form W-8ECI, is the last day of
each U.S. taxable year of the Non-U.S. Entity) or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to Borrower, and such other extensions or renewals thereof as
may reasonably be requested by Borrower, certifying in the case of a Form
W-8BEN or W-8ECI that such entity is entitled to receive payments under the
Note without deduction or withholding of any United States Federal income
taxes, unless in any such case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on which
any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such entity from duly completing and
delivering any such form with respect to it and such entity advises Borrower
that it is not capable of receiving payments without any deduction or
withholding of United States Federal income tax.



     Section 2.3 Prepayments.



     2.3.1 Voluntary Prepayments. Except as otherwise provided herein,
Borrower shall not have the right to prepay the Loan in whole or in part prior
to the Maturity Date. On October 11, 2010 (the “Permitted Prepayment
Date”) or on any Payment Date thereafter, Borrower may, at its option and
upon thirty (30) days prior written notice to Lender, prepay the Debt in whole
or in part without payment of the Yield Maintenance Premium, provided, Borrower
pays to Lender all accrued and unpaid interest on the amount of principal being
prepaid through and including the date of prepayment. Any partial prepayment
shall be applied to the last payments of principal due under the Loan.



     2.3.2 Mandatory Prepayments. On each date on which Borrower
actually receives any Net Proceeds, if Lender is not obligated to make such Net
Proceeds available to Borrower for the restoration of any Individual Property,
Borrower shall prepay the outstanding principal balance of the Note in an
amount equal to one hundred percent (100%) of such Net Proceeds. No Yield
Maintenance 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.



23









 





     2.3.3 Prepayments After Default. If, following an Event of
Default, payment of all or any part of the Debt is tendered by Borrower or
otherwise recovered by Lender, such tender or recovery shall be deemed a
voluntary prepayment by Borrower in violation of the prohibition against
prepayment set forth in Section 2.3.1 hereof and, if such payment is made prior
to the Permitted Prepayment Date, Borrower shall pay, in addition to the Debt,
(i) an amount equal to the greater of (a) one percent (1%) of the outstanding
principal amount of the
Loan to be prepaid or satisfied, or (b) the Yield Maintenance Premium that
would be required if a Defeasance Event had occurred in an amount equal to the
outstanding principal amount of the Loan to be satisfied or prepaid and (ii)
all accrued and unpaid interest on the amount of principal being prepaid
through and including the date of prepayment.



     Section 2.4 Defeasance.



     2.4.1 Voluntary Defeasance. (a) Provided no Event of Default
shall then exist, Borrower shall have the right at any time after the Permitted
Release Date to voluntarily defease all or any portion of the Loan by and upon
satisfaction of the following conditions (such event being a “Defeasance
Event”):




          (i) Borrower shall provide not less than thirty (30) days prior
written notice to Lender specifying the Payment Date (the “Defeasance
Date”) on which the Defeasance Event will occur and the principal
amount of the Loan to be defeased;




          (ii) Borrower shall pay to Lender all accrued and unpaid interest on
the principal balance of the Note to and including the Defeasance Date;




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




          (iv) Borrower shall deliver to Lender the Defeasance Deposit
applicable to the Defeasance Event;




          (v) In the event only a portion of the Loan is the subject of the
Defeasance Event, Borrower shall prepare all necessary documents to
modify this Agreement and to amend and restate the Note and issue two
substitute notes for the Note, one note having a principal balance equal
to the defeased portion of the original Note and a maturity date equal to
the Permitted Prepayment Date (the “Defeased Note”) and the other
note having a principal balance equal to the undefeased portion of the
original Note and a maturity date equal to the Maturity Date (the
“Undefeased Note”). The Defeased Note and the Undefeased Note
shall otherwise have terms identical to the original Note, except that a
Defeased Note cannot be the subject of any further Defeasance Event. The
Undefeased Note may be the subject of a further Defeasance Event in
accordance with the terms and provisions of this Section 2.4 (the term
“Note”, as used in this clause (v) for such purpose, being deemed to
refer to the Undefeased Note that is the subject of further defeasance),
provided, however, that no such partial defeasance shall take place
unless the conditions outlined in Section 2.5 are satisfied;




24









 






          (vi) Borrower shall execute and deliver a security agreement, in a
form and substance that would be reasonably satisfactory to a prudent
institutional lender, creating a first priority lien on the Defeasance
Deposit and the U.S. Obligations purchased with the Defeasance Deposit in
accordance with the provisions of this Section 2.4 (the “Security
Agreement”);




          (vii) Borrower shall deliver an opinion of counsel for Borrower in a
form and substance that would be reasonably satisfactory to a prudent
institutional lender stating, among other things, that Borrower has
legally and validly transferred and assigned the U.S. Obligations and all
obligations, rights and duties under and to the Note or the Defeased Note
(as applicable) to the Successor Borrower, that Lender has a perfected
first priority security interest in the Defeasance Deposit and the U.S.
Obligations delivered by Borrower and that any REMIC Trust formed
pursuant to a Securitization will not fail to maintain its status as a
“real estate mortgage investment conduit” within the meaning of Section
860D of the Code as a result of such Defeasance Event;




          (viii) Borrower shall deliver confirmation in writing from the
applicable Rating Agencies to the effect that such defeasance and release
will not result in a downgrading, withdrawal or qualification of the
respective ratings in effect immediately prior to such Defeasance Event
for the Securities issued in connection with the Securitization which are
then outstanding. If required by the applicable Rating Agencies,
Borrower shall also deliver or cause to be delivered a non-consolidation
opinion with respect to the Successor Borrower in form and substance
satisfactory to Lender and the applicable Rating Agencies;




          (ix) Borrower shall deliver an Officer’s Certificate certifying that
the requirements set forth in this Section 2.4.1(a) have been satisfied;




          (x) Borrower shall deliver a certificate of an Acceptable Accountant
certifying that the U.S. Obligations purchased with the Defeasance
Deposit generate monthly amounts equal to or greater than the Scheduled
Defeasance Payments;




          (xi) Borrower shall deliver such other certificates, documents or
instruments as Lender may reasonably request; and




          (xii) Borrower shall pay all costs and expenses of Lender incurred
in connection with the Defeasance Event, including, without limitation,
(A) any costs and expenses associated with a release of the Lien of the
related Security Instrument as provided in Section 2.5 hereof, (B)
Lender’s reasonable attorneys’ fees and expenses, (C) the costs and
expenses of the Rating Agencies, (D) any revenue, documentary stamp or
intangible taxes or any other tax or charge due in connection with the
transfer of the Note, or otherwise required to accomplish the defeasance
and (E) the reasonable costs and expenses actually incurred by Servicer
and any trustee, including reasonable attorneys’ fees.



                           (b) In connection with each Defeasance Event, Borrower hereby appoints
Lender as its agent and attorney-in-fact for the purpose of using the
Defeasance Deposit



25









 




to purchase U.S. Obligations which provide payments on or
prior to, but as close as possible to, all successive scheduled payment dates
after the Defeasance Date upon which interest and principal payments are
required under the Note, in the case of a Defeasance Event for the entire
outstanding principal balance of the Loan, or the Defeased Note, in the case of
a Defeasance Event for only a portion of the outstanding principal balance of
the Loan, as applicable, and in amounts equal to the scheduled payments due on
such dates under this Agreement and the Note or the Defeased Note, as applicable, (including without limitation
scheduled payments of principal, interest, servicing fees (if any), the Rating
Surveillance Charge and any other amounts due under the Loan Documents on such
dates) and assuming such Note or Defeased Note, as applicable, is prepaid in
full on the Permitted Prepayment Date (the “Scheduled Defeasance
Payments”). Borrower, pursuant to the Security Agreement or other
appropriate document, shall authorize and direct that the payments received
from the U.S. Obligations may be made directly to the Lockbox Account (unless
otherwise directed by Lender) and applied to satisfy the obligations of
Borrower under the Note or the Defeased Note, as applicable. Any portion of
the Defeasance Deposit in excess of the amount necessary to purchase the U.S.
Obligations required by this Section 2.4 and satisfy Borrower’s other
obligations under this Section 2.4 and Section 2.5 hereof shall be remitted to
Borrower.




     2.4.2 Successor Borrower. In connection with any Defeasance Event,
Borrower shall establish or designate a successor entity (the “Successor
Borrower”) which shall be a single purpose bankruptcy remote entity with
one (1) Independent Director approved by Lender (two (2) if required by any
Rating Agency), and Borrower shall transfer and assign all obligations, rights
and duties under and to the Note or the Defeased Note, as applicable, together
with the pledged U.S. Obligations to such Successor Borrower. Such Successor
Borrower shall assume the obligations under the Note or the Defeased Note, as
applicable, and the Security Agreement and Borrower shall be relieved of its
obligations under such documents and the other Loan Documents, except with
respect to those obligations which are expressly stated to survive. Borrower
shall pay $1,000 to any such Successor Borrower as consideration for assuming
the obligations under the Note or the Defeased Note, as applicable, and the
Security Agreement. Notwithstanding anything in this Agreement to the
contrary, no other assumption fee shall be payable upon a transfer of the Note
or the Defeased Note, as applicable, in accordance with this Section 2.4.2, but
Borrower shall pay all costs and expenses incurred by Lender, including
Lender’s attorneys’ fees and expenses, incurred in connection therewith.



     Section 2.5 Release of Property. Except as set forth in Section
2.4 hereof and this Section 2.5, no repayment, prepayment or defeasance of all
or any portion of the Note shall cause, give rise to a right to require, or
otherwise result in, the release of any Lien of any Security Instrument on any
Individual Property.



     2.5.1 Release of all Properties.



     (a) After the Permitted Release Date, if Borrower has elected to defease
the entire Loan and the applicable requirements of Section 2.4 hereof and this
Section 2.5 have been satisfied, all of the Properties shall be released from
the Liens of their respective Security Instruments and the U.S. Obligations,
pledged pursuant to the Security Agreement, shall be the sole source of
collateral securing the Note.



26









 





     (b) In connection with the release of the Security Instruments, Borrower
shall submit to Lender, not less than thirty (30) days prior to the Defeasance
Date, a release of Lien (and related Loan Documents) for each Individual
Property for execution by Lender. Such release shall be in a form appropriate
in each jurisdiction in which an Individual Property is located and that would
be satisfactory to a prudent institutional lender. In addition, Borrower shall
provide all other documentation Lender reasonably requires to be delivered by
Borrower in connection with such release, together with an Officer’s
Certificate certifying that such documentation (i) is in compliance with all
applicable Legal Requirements, and (ii) will, following execution by Lender and
recordation thereof, effect such releases in accordance with the terms of this
Agreement.



     2.5.2 Release of Individual Property. After the Permitted Release
Date, if Borrower has elected to defease a portion of the Loan and the
applicable requirements of Section 2.4 hereof and this Section 2.5 have been
satisfied, Borrower may obtain the release of an Individual Property from the
Lien of the Security Instrument thereon (and related Loan Documents) and the
release of Borrower’s obligations under the Loan Documents with respect to such
Individual Property (other than those expressly stated to survive), upon the
satisfaction of each of the following conditions:



     (a) The principal balance of the Defeased Note shall equal or exceed the
Release Amount for the applicable Individual Property; provided, however, if
the undefeased portion of the Loan at the time a release is requested is less
than the Release Amount, the Defeased Note shall equal the remaining undefeased
portion of the Loan at the time of release;



     (b) Borrower shall provide Lender with at least thirty (30) days but no
more than ninety (90) days prior written notice of its request to obtain a
release of the Individual Property;



     (c) Borrower shall defease the portion of the Note equal to the Release
Amount of the Individual Property being released (together with all accrued and
unpaid interest on the principal amount being defeased) in accordance with the
terms and conditions of Sections 2.4.1 and 2.4.2 hereof;



     (d) Borrower shall submit to Lender, not less than thirty (30) days prior
to the date of such release, a release of Lien (and related Loan Documents) for
such Individual Property for execution by Lender. Such release shall be in a
form appropriate in each jurisdiction in which the Individual Property is
located and that would be satisfactory to a prudent institutional lender. In
addition, Borrower shall provide all other documentation Lender reasonably
requires to be delivered by Borrower in connection with such release, together
with an Officer’s Certificate certifying that such documentation (i) is in
compliance with all applicable Legal Requirements, (ii) will, following
execution by Lender and recordation thereof, effect such release in accordance
with the terms of this Agreement, and (iii) will not impair or otherwise
adversely affect the Liens, security interests and other rights of Lender under
the Loan Documents not being released (or as to the parties to the Loan
Documents and Properties subject to the Loan Documents not being released);



     (e) After giving effect to such release, the Debt Service Coverage Ratio
for the Properties then remaining subject to the Lien of the Security
Instrument shall be at least equal to



27









 




the Debt Service Coverage Ratio for all
of the Properties (including the Individual Property to be released) for the
twelve (12) full calendar months immediately preceding the release of such
Individual Property.




     (f) Intentionally Deleted;



     (g) Lender shall have received evidence that the Individual Property to be
released shall be conveyed to a Person other than Borrower or SPC Party;



     (h) Lender shall have received payment of all Lender’s costs and expenses,
including due diligence review costs and reasonable counsel fees and
disbursements incurred in connection with the release of the Individual
Property from the lien of the related Security Instrument and the review and
approval of the documents and information required to be delivered in
connection therewith; and



     (i) Immediately following such release, the Allocated Loan Amount of the
Individual Property released (the “Released Individual Property”) shall
be reduced to zero and the Allocated Loan Amounts of the Individual Properties
remaining subject to the Lien of a Security Instrument immediately following
such release shall be reduced pro rata by the difference between the Release
Amount of the Released Individual Property and the original Allocated Loan
Amount of the Released Individual Property.



     2.5.3 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 the Note and this
Agreement, release the Lien of the Security Instrument on each Individual
Property not theretofore released.



     Section 2.6 Manner of Making Payments; Cash Management.



     2.6.1 Deposits into Lockbox Account. Borrower shall cause all
Rents from the Properties to be deposited into the Lockbox Account in
accordance with the Cash Management Agreement. Without limitation of the
foregoing, Borrower shall, and shall cause Manager to, (a) cause or direct all
tenants under Leases to deliver all Rents payable thereunder either directly to
the Lockbox Account or to Manager for deposit into the Lockbox Account, and (b)
deposit all amounts received by Borrower or Manager constituting Rents or other
revenue of any kind from the Properties into the Lockbox Account within one (1)
Business Day of receipt thereof. Disbursements from the Lockbox Account will
be made in accordance with the terms and conditions of this Agreement and the
Cash Management Agreement. Lender shall have sole dominion and control over
the Lockbox Account and, except as set forth in the Cash Management Agreement,
Borrower shall have no rights to make withdrawals therefrom.



     2.6.2 Payments Received in the Lockbox Account. Notwithstanding
anything to the contrary contained in this Agreement or the other Loan
Documents and provided no Event of Default then exists, Borrower’s obligations
with respect to the Interest Only Payment Amount, the Monthly Debt Service
Payment Amount and amounts due for the Reserve Funds shall be deemed satisfied
to the extent sufficient amounts are deposited in the Lockbox Account to
satisfy



28









 




such obligations on the dates each such payment is required, regardless
of whether any of such amounts are so applied by Lender.




     2.6.3 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.



     Section 2.7 Substitute Property.



     (a) Generally. Subject to the conditions in this Section 2.7, at
any time and from time to time, Borrower may substitute (each such act is
hereafter referred to as a “Substitution”) a property (a “Substitute
Property”) for an Individual Property (a “Replaced Property”). From
and after the substitution of a Substitute Property in accordance herewith,
such Substitute Property shall thereafter be deemed an Individual Property
under this Agreement and the Security Instrument, and the Allocated Loan Amount
of such Substitute Property shall be the same as the Allocated Loan Amount of
the Replaced Property, except that in the event that two (2) or more Substitute
Properties replace a single Replaced Property, then in that event, the
Allocated Loan Amount of the Replaced Property shall be apportioned between or
amongst the Substitute Properties as Lender in its sole discretion decides. In
the event of a substitution, the Note shall remain in full force and effect and
a new Security Instrument encumbering the Substitute Property (the
“Substitute Security Instrument”) shall be executed and delivered by
Borrower to Lender to encumber the Substitute Property. Concurrently with the
completion of all steps necessary to substitute a Substitute Property as
provided herein, Lender shall execute or cause to be executed all such
documents as are necessary or appropriate (i) to release all Liens granted to
Lender and affecting the Replaced Property, and (ii) to cause the Substitute
Security Instrument to be cross-collateralized and cross-defaulted with the
Security Instrument. Notwithstanding anything to the contrary hereinbefore
contained, Borrower’s right to substitute a Property as herein provided shall
be subject to the additional limitation that at any time the Allocated Loan
Amount of such Substitute Property, individually or when aggregated with the
Allocated Loan Amounts of all other Properties which are or were a Substitute
Property shall not constitute more than 33 1/3 % of the original outstanding
principal amount of the Loan.



     (b) Substitute Property Requirements. To qualify as a Substitute
Property, the property nominated to be a Substitute Property must, at the time
of substitution:




          (i) be a property as to which Borrower will hold indefeasible fee
title free and clear of any lien or other encumbrance except for
Permitted Encumbrances;




          (ii) be free and clear of Hazardous Substance except for nominal
amounts of any such substances commonly incorporated in or used in the
operation of properties similar to the Properties (in either case in
compliance with all Environmental Laws), all as set forth in an
environmental report delivered to Lender;




          (iii) be in substantially the same repair and condition, which shall
be certified by an Officer’s Certificate of Borrower, as the Replaced
Property was on the Closing Date or, in the event that the Replaced
Property was itself a Substitute Property, on the



29









 






date that such Property became a Property hereunder all as set forth in a Physical Conditions
Report delivered to Lender;




          (iv) be in compliance, in all material respects, with Legal
Requirements which shall be certified in an Officer’s Certificate;

          (v) as evidenced by an Approved Appraisal performed at Borrower’s
expense and delivered to Lender, have a fair market value no less than
the greater of (y) the fair market value of the Replaced Property on the
Closing Date or (z) the fair market value of the Replaced Property
immediately prior to the Substitution;




          (vi) be used primarily for self-service storage and related uses;
and




          (vii) after giving effect to the Substitution, the Debt Service
Coverage Ratio for all of the Properties (including the Substitute
Property, but excluding the Replaced Property) shall be at least equal to
the Debt Service Coverage Ratio for all of the Properties (including the
Replaced Property) for the twelve (12) full calendar months immediately
preceding the release and substitution of such Individual Property.



     (c) Conditions to Substitution. In addition to the requirements in
Section 2.7(b) above, substitution of any Property pursuant to this Section 2.7
shall be subject to the satisfaction of the following, all of which shall be
prepared or obtained at Borrower’s expense:




          (i) simultaneously with the Substitution, Borrower shall convey fee
simple title to the Replaced Property to a Person other than Borrower;




          (ii) Intentionally Deleted;




          (iii) Intentionally Deleted;




          (iv) receipt by Lender and the Rating Agencies of written notice
thereof from Borrower at least thirty (30) days before the date of the
proposed Substitution (the “Substitution Date”), together with (1)
written evidence that the property proposed to be a Substitute Property
complies with Section 2.7(b) above and (2) such other information,
including financial information, as Lender or the Rating Agencies may
request;




          (v) Lender’s receipt of written affirmation from the Rating Agencies
that the ratings of the Securities immediately prior to such Substitution
will not be qualified, downgraded or withdrawn as a result of such
Substitution, which affirmation may be granted or withheld in the Rating
Agencies’ sole and absolute discretion;




          (vi) delivery to Lender of an opinion of counsel opining as to the
enforceability of the Substitute Security Instrument with respect to the
Substitute Property in substantially the same form and substance as the
opinion of counsel concerning enforceability originally delivered at the
Closing Date in connection with the Replaced Property, with reasonable
allowance for variations in applicable State law, and a
Nondisqualification Opinion and a Tax Opinion;



30









 






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




          (viii) the representations and warranties set forth in this
Agreement, in the Security Instrument and the Loan Documents applicable
to the Replaced Property shall be true and correct (except as to title exceptions) as to the
Substitute Property on the Substitution Date in all material respects;




          (ix) delivery to Lender of a copy of the organizational documents of
Borrower and all amendments thereto, certified as true, complete and
correct as of the date of delivery by an Officer’s Certificate; a
certificate from the secretary of the State or other applicable State
official or officer in Borrower’s State of formation certifying that it
is duly formed and in good standing (with tax clearance, if applicable),
if available, and certificates from the Secretary of State of the State
in which the Substitute Property is located (if such certificates are
issued), certifying as to Borrower’s good standing as a limited liability
company in such State (with tax clearance, if applicable); delivery of an
Officer’s Certificate, dated the Substitution Date and signed on behalf
of its Secretary or Assistant Secretary, certifying the names of the
officers of the general partner of the sole member of Borrower authorized
to execute and deliver, in the name and on behalf of Borrower, the
Security Instrument, Assignment of Leases, UCC Financing Statements, and
the other Loan Documents pertaining to such Substitute Property to which
Borrower is a party, together with the original (not photocopied)
signatures of such officers;




          (x) delivery to Lender of an Officer’s Certificate certifying to the
veracity of the statements in Subsections 2.7(b)(ii), 2.7(b)(iii),
2.7(b)(iv), 2.7(b)(vii), 2.7(c)(viii), and 2.7(c)(ix) hereof;




          (xi) delivery to Lender of originals of the following:




	(1)	 	Borrower shall have
executed, acknowledged and delivered to Lender a
Security Instrument, an Assignment of Leases and
two UCC Financing Statements (to the extent
execution and acknowledgment are required) with
respect to the Substitute Property, together with
a letter from Borrower countersigned by a title
insurance company acknowledging receipt of such
Security Instrument, Assignment of Leases and
UCC-1 Financing Statements and agreeing to record
or file, as applicable, such Security Instrument,
Assignment of Leases and Rents and, with regard to
the UCC-1 Financing Statements, if recordation or
a system of filing is accepted or established in
the applicable jurisdiction, one of the UCC-1
Financing Statements in the real estate records
for the county in which the Substitute Property is
located and, subject to local law, rule or custom,
to file one of the UCC-1 Financing Statements in
the office of the Secretary of State of the State
in which Borrower has been formed, so as to
effectively create upon such recording and filing
valid and




31









 






	 	 	enforceable Liens upon the Substitute
Property, of the requisite priority, in favor of
Lender (or such other trustee as may be desired
under local law), subject only to the Permitted
Encumbrances and such other Liens as are
permitted pursuant to the Loan Documents. The
Security Instrument, Assignment of Leases and
UCC-1 Financing Statements shall be the same in
form and substance as the counterparts of such
documents executed and delivered with respect to
the related Replaced Property subject to
modifications reflecting the Substitute Property
as the Property that is the subject of such
documents and such modifications reflecting the
laws of the State in which the Substitute
Property is located as shall be recommended by
the counsel admitted to practice in such State
and delivering the opinion of counsel as to the
enforceability of such documents required
pursuant to this Section. The Security
Instrument encumbering the Substitute Property
shall secure all amounts evidenced by the Note,
provided that in the event that the jurisdiction
in which the Substitute Property is located
imposes a mortgage recording, intangibles or
similar tax and does not permit the allocation of
indebtedness for the purpose of determining the
amount of such tax payable, the principal amount
secured by such Security Instrument shall be
equal to one hundred fifty percent (150%) of the
amount of the Loan allocated to the Substitute
Property;
	 
	(2)	 	Lender shall have
received (A) any “tie-in” or similar endorsement
to each Title Insurance Policy insuring the Lien
of the Security Instrument as of the date of the
substitution available with respect to the Title
Insurance Policy insuring the Lien of the Security
Instrument with respect to the Substitute Property
and (B) a Title Insurance Policy (or a marked,
signed and redated commitment to issue such Title
Insurance Policy) insuring the Lien of the
Security Instrument encumbering the Substitute
Property, issued by the title company that issued
the Title Insurance Policies insuring the Lien of
the Security Instrument and dated as of the date
of the substitution, with reinsurance and direct
access agreements that replace such agreements
issued in connection with the Title Insurance
Policy insuring the Lien of the Security
Instrument encumbering the Replaced Property. The
Title Insurance Policy issued with respect to the
Substitute Property shall (1) provide coverage in
the amount of the Release Amount applicable to the
Substitute Property if the “tie-in” or similar
endorsement described above is available or, if
such




32









 






	 	 	endorsement is not available, in an amount
equal to one hundred fifty percent (150%) of the
Release Amount applicable for the Substitute
Property, (2) insure Lender that the relevant
Security Instrument creates a valid first
lien on the Substitute 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),
(3) contain such legally available endorsements
and affirmative coverages as are contained in the
Title Insurance Policies insuring the Liens of
the existing Security Instrument, and (4) name
Lender as the insured. Lender also shall have
received copies of paid receipts showing that all
costs of or premiums for such endorsements and
Title Insurance Policies have been paid;
	 
	(3)	 	a current as-built land
title Survey and a certificate from a professional
licensed land surveyor with respect to such
Substitute Property, certified to the Title
Company and Lender, and prepared in accordance
with the 1999 Minimum Standard Detail Requirements
for ALTA/ACSM Land Title Surveys meeting the
classification of an “Urban Survey” and the
following additional items from the list of
“Optional Survey Responsibilities and
Specifications” (Table A) shall be added to each
survey 2, 3, 4, 6, 8, 9, 10, 11(a) (as to
utilities, surface matters only) and 13, and
showing the location, dimensions and area of each
parcel of the Substitute Property, including all
existing buildings and improvements, utilities,
parking areas and spaces, internal streets, if
any, external streets, rights-of-way, as well as
any easements, setback violations or encroachments
on such Substitute Property and identifying each
item with its corresponding exception, if any, in
the title policy relating thereto. Each survey
shall contain the original signature and seal of
the surveyor and any additional matter required by
the Title Company. In addition, Borrower shall
provide with respect to each Substitute Property a
certificate of a professional land surveyor to the
effect that the Improvements located upon such
Substitute Property are not located in a flood
plain area, or, if such Substitute Property is in
a flood plain area, Borrower shall deliver on the
Closing Date evidence of flood insurance;
	 
	(4)	 	a certified copy of a
deed conveying to Borrower all right, title and
interest in and to the Replaced Property and a
letter from a title insurance company
acknowledging receipt of such deed and agreeing to
record such deed in the




33









 






	 	 	real estate records for the county in which the Replaced Property is
located;
	 
	(5)	 	insurance certificates
issued by insurance companies evidencing the
insurance coverage required under Section 6.1
hereof;
	 
	(6)	 	a Phase I environmental
report issued by a qualified environmental
consultant at Borrower’s expense, and, if
recommended by the Phase I environmental report, a
Phase II environmental report, which conclude that
the Substitute Property does not contain any
Hazardous Substance except for nominal amounts of
such substances commonly incorporated in or used
in the operation of properties similar to the
Substitute Property (in either case in compliance
with all Environmental Laws). If any such report
discloses the presence of any Hazardous Substance,
such report shall include an estimate of the cost
of any related remediation and Borrower shall
deposit with Lender an amount equal to one hundred
fifty percent (150%) of such estimated cost, which
deposit shall constitute additional security for
the Loan and shall be released to Borrower upon
the delivery to Lender of (A) an update to such
report indicating that there is no longer any
Hazardous Substance on the Substitute Property
except for nominal amounts of such substances
commonly incorporated in or used in the operation
of properties similar to the Substitute Property
(in either case in compliance with all
Environmental Laws) and (B) paid receipts
indicating that the costs of all such remediation
work have been paid;
	 
	(7)	 	payments of or
reimbursement for all costs and expenses incurred
by Lender (including, without limitation,
reasonable attorneys’ fees and disbursements) in
connection with the substitution, and Borrower
shall have paid all recording charges, filing
fees, taxes or other expenses (including, without
limitation, mortgage and intangibles taxes and
documentary stamp taxes) payable in connection
with the substitution. Borrower shall have paid
all costs and expenses of the Rating Agencies
incurred in connection with the substitution;
	 
	(8)	 	an endorsement to the
Title Insurance Policy insuring the Lien of the
Security Instrument encumbering the Substitute
Property insuring that the Substitute Property
constitutes a separate tax lot or, if such an
endorsement is not available in the State in which
the Substitute Property is located, a letter from
the title insurance company issuing such Title
Insurance Policy or of an opinion of competent
counsel in




34









 






	 	 	the State where such Substitute
Property is located, stating that the Substitute
Property constitutes a separate tax lot or
a letter from the appropriate authority stating
that the Substitute Property constitutes a
separate tax lot;
	 
	(9)	 	a Physical Conditions
Report with respect to the Substitute Property
stating that the Substitute Property and its use
comply in all material respects with all
applicable Legal Requirements (including, without
limitation, zoning, subdivision and building laws)
and that the Substitute Property is in good
condition and repair and free of damage or waste.
If compliance with any Legal Requirements are not
addressed by the Physical Conditions Report, such
compliance shall be confirmed by delivery to
Lender of a certificate of an architect licensed
in the State in which the Substitute Property is
located, a letter from the municipality in which
such Property is located, a certificate of a
surveyor that is licensed in the State in which
the Substitute Property is located (with respect
to zoning and subdivision laws), an ALTA 3.1
zoning endorsement to the Title Insurance Policy
delivered pursuant to clause (2) above (with
respect to zoning laws) or a subdivision
endorsement to the Title Insurance Policy
delivered pursuant to clause (2) above (with
respect to subdivision laws). If the Physical
Conditions Report recommends that any repairs be
made with respect to the Substitute Property, such
Physical Conditions Report shall include an
estimate of the cost of such recommended repairs
and Borrower shall deposit with Lender an amount
equal to one hundred twenty-five percent (125%) of
such estimated cost, which deposit shall
constitute additional security for the Loan and
shall be released to Borrower upon the delivery to
Lender of (A) an update to such Physical
Conditions Report or a letter from engineer that
prepared such Physical Conditions Report
indicating that the recommended repairs were
completed in good manner and (B) paid receipts
indicating that the costs of all such repairs have
been paid;
	 
	(10)	 	annual operating
statements and occupancy statements for the
Substitute Property for the most current completed
fiscal year and a current operating statement for
the Replaced Property, each certified to Lender as
being true and correct, and a certificate from
Borrower certifying that there has been no adverse
change in the financial condition of the
Substitute Property since the date of such
operating statements;




35









 






	(12)	 	a release of Lien (and
related Loan Documents) for the Replaced Property
for execution by Lender. Such release
shall be in a form appropriate for the
jurisdiction in which the Replaced Property is
located; and
	 
	(13)	 	Lender shall have
received such other and further approvals,
opinions, documents and information in connection
with the substitution as the Rating Agencies may
have requested.





     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.



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



     (a) Security Instrument, Assignment of Leases and other Loan
Documents. Lender shall have received from Borrower fully executed and
acknowledged counterparts of the Security Instrument and the Assignment of
Leases and evidence that counterparts of the Security Instrument 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 liens upon each Individual Property, of the requisite
priority, in favor of Lender (or such other trustee as may be required or
desired under local law), subject only to the Permitted Encumbrances and such
other Liens as are permitted pursuant to the Loan Documents. Lender shall have
also received from (i) Borrower fully executed counterparts of the
Environmental Indemnity, Cash Management Agreement and Assignment of Management
Agreement and (ii) Guarantor, a fully executed counterpart of the Guaranty.



     (b) Title Insurance. Lender shall have received Title Insurance
Policies issued by a title company acceptable to Lender and dated as of the
Closing Date, with reinsurance and direct access agreements acceptable to
Lender. Such Title Insurance Policies shall (i) provide coverage in amounts
satisfactory to Lender, (ii) insure Lender that the applicable Security
Instrument creates a valid lien on the Individual Property encumbered thereby
of the requisite priority, free




36








 





and clear of all exceptions from coverage other than Permitted
Encumbrances and standard exceptions and exclusions from coverage (as modified
by the terms of any endorsements), (iii) contain such endorsements and
affirmative coverages as Lender may reasonably request, and (iv) name Lender as
the insured. The Title Insurance Policies shall be assignable. Lender also
shall have received evidence that all premiums in respect of such Title
Insurance Policies have been paid.



     (c) Survey. Lender shall have received a current title Survey for
each Individual 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 1999 Minimum Standard Detail Requirements for ALTA/ACSM
Land Title Surveys. The Surveys shall show 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, 7(a), 7(b)(1), 8, 9, 10, 11(a) (as
to utilities, surface matters only) and 13. Each such Survey shall reflect the
same legal description contained in the Title Insurance Policy relating to such
Individual Property referred to in clause (ii) above and shall include, among
other things, a metes and bounds description of the real property comprising
part of such Individual 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 accordance with the 1999 Minimum Standard
Detail Requirements for ALTA/ACSM Land Title Surveys 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 each Individual Property, in each case
satisfactory to Lender.



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



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



     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.



37









 





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



     3.1.7 Budgets. Borrower shall have delivered to Lender 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 Properties which are in arrears, including
without limitation, (a) accrued but unpaid insurance premiums relating to the
Properties, (b) currently due Taxes (including any in arrears) relating to the
Properties, and (c) currently due Other Charges relating to the Properties,
which amounts shall be funded with proceeds of the Loan.



     3.1.9 Completion of Proceedings. All corporate and other
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 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. Lender shall have received an executed
tenant estoppel letter, which shall be in form and substance satisfactory to
Lender, from each tenant under a Major Lease.



     3.1.12 Transaction Costs. Borrower shall have paid or reimbursed
Lender for all title insurance premiums, recording and filing fees, 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 Effect. There shall have been no Material
Adverse Effect on the financial condition or business condition of Borrower or
the Properties since the date of the most recent financial statements delivered
to Lender. The income and expenses of the Properties, the occupancy and Leases
thereof, and all other features of the transaction shall be as represented to
Lender without material adverse change. Neither Borrower nor any of its



38









 





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 Properties. Lender
shall have received a current certified rent roll of the Properties, reasonably
satisfactory in form and substance to Lender.



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



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



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



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



     3.1.19 Financial Statements. Lender shall have received a balance
sheet with respect to each Individual Property for the two most recent Fiscal
Years and statements of income and statements of cash flows with respect to
each Individual Property for the three most recent Fiscal Years, each in form
and substance satisfactory to Lender.



     3.1.20 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 satisfactory to Lender and its counsel.



     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
its properties 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 its properties, businesses and operations. Borrower possesses
all rights, licenses, permits and authorizations, governmental or otherwise,
necessary to entitle it to own its properties and to transact the businesses in
which it is now engaged, and the sole business of Borrower is the



39









 





ownership,
management and operation of the Properties. Schedule 4.1.1 attached
hereto accurately depicts the organizational structure of Borrower.



     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 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. Except as set forth on Schedule 4.1.4
attached hereto and made a part hereof 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 any
Individual Property, which actions, suits or proceedings, if determined against
Borrower or any Individual Property, might materially adversely affect the
condition (financial or otherwise) or business of Borrower or the condition or
ownership of any Individual Property.



     4.1.5 Agreements. Borrower is not a party to any agreement or
instrument or subject to any restriction which might materially and adversely
affect Borrower or any Individual Property, or Borrower’s business, properties
or assets, operations or condition, financial or otherwise. Borrower is not in
default in any material respect in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any agreement
or instrument to which it is a party or by which Borrower or any of the
Properties 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 Properties
is otherwise bound, other than (a) obligations incurred in the ordinary course
of
the operation of the Properties and specifically permitted under this
Agreement and (b) obligations under the Loan Documents. Set forth on
Schedule 4.1.5 attached hereto are the material agreements to which
Borrower is a party or by which Borrower or any of the Properties are bound.
Each such material agreement is cancellable without penalty or premium on no
more than thirty (30) days notice unless otherwise specifically set forth on
such Schedule 4.1.5.



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     4.1.6 Title. Borrower has good, marketable and insurable fee
simple title (and the leasehold title with respect to a portion of the East
Hanover Property) to the real property comprising part of each Individual
Property and good title to the balance of such Individual 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. Each Security Instrument, when properly recorded in the
appropriate records, together with any Uniform Commercial Code financing
statements required to be filed in connection therewith, will create (a) a
valid, perfected lien on the applicable Individual 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 assignments
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 Properties 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) has received reasonably equivalent value in exchange for its
obligations under the Loan Documents. Giving effect to the Loan, the fair
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 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). No petition under the Bankruptcy Code or similar
State bankruptcy or insolvency law has been filed against Borrower or any
constituent Person in the last seven (7) years, and neither Borrower nor 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 the Bankruptcy Code
or similar State bankruptcy or insolvency law 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. 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, any Individual Property or the business, operations or
condition (financial or otherwise) of Borrower.



41









 





     4.1.9 No Plan Assets. Borrower is not a Plan and none of the
assets of Borrower constitute or will constitute “Plan Assets” of one or more
Plans. 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 Agreement.



     4.1.10 Compliance. Borrower and the Properties and the use thereof
comply in all material respects with all applicable Legal Requirements,
including, without limitation, Environmental Laws, 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 actual knowledge, any other
Person in occupancy of or involved with the operation or use of the Properties
any act or omission affording the Federal government or any other Governmental
Authority the right of forfeiture as against any Individual 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.



     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 Borrower and the
Properties (i) are true, complete and correct in all material respects, (ii)
accurately represent the financial condition of Borrower and the Properties, as
applicable, as of the date of such reports, and (iii) to the extent prepared or
audited by an Acceptable Accountant, have been prepared in accordance with GAAP
throughout the periods covered, except as disclosed therein. Borrower does not
have any contingent liabilities, liabilities for taxes, unusual forward or
long-term commitments or unrealized or anticipated losses from any unfavorable
commitments that are known to Borrower and reasonably likely to have a Material
Adverse Effect on any Individual Property or the operation thereof in the
manner currently operated, except as referred to or reflected in said financial
statements. Since the date of such financial statements, there has been no
Material Adverse Effect on the financial condition, operations or business of
Borrower from that set forth in said financial statements.



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



42









 





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



     4.1.16 Separate Lots. Each Individual 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 such Individual
Property.



     4.1.17 Assessments. There are no pending or proposed special or
other assessments for public improvements or otherwise affecting any Individual
Property, nor, has Borrower received any notice of any contemplated
improvements to any Individual 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 are no prior assignments of the
Leases or any portion of the Rents due and payable or to become due and payable
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. 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. Each Individual Property is used
exclusively for self-service storage facility 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 for the legal use, occupancy and
operation of each Individual Property as currently operated (collectively, the
“Licenses”), have been obtained and are in full force and effect.
Borrower shall keep and maintain all licenses necessary for the operation of
each Individual



43









 





Property as currently operated. The use being made of each
Individual Property is in conformity with the certificate of occupancy issued
for such Individual Property.



     4.1.23 Flood Zone. Except as shown on the Surveys, none of the
Improvements on any Individual Property are located in an area as identified by
the Federal Emergency Management Agency as an area having special flood hazards
and, if so located, the flood insurance required hereunder is in full force and
effect with respect to each such Individual Property.



     4.1.24 Physical Condition. Each Individual 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 any Individual Property,
whether latent or otherwise, and Borrower has not received notice from any
insurance company or bonding company of any defects or inadequacies in any
Individual 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. Each Individual Property is free from damage covered by
fire or other casualty. All liquid and solid waste disposal, septic and sewer
systems located on each Individual Property are in a good and safe condition
and repair and in compliance with all Legal Requirements.



     4.1.25 Boundaries. Except as otherwise as shown on the Survey, all
of the Improvements which were included in determining the appraised value of
each Individual Property lie wholly within the boundaries and building
restriction lines of such Individual Property, and no improvements on adjoining
properties encroach upon such Individual Property, and no easements or other
encumbrances upon the applicable Individual Property encroach upon any of the
Improvements, so as to affect the value or marketability of the applicable
Individual Property except those which are insured against by title insurance;
provided, however, to the extent that any of the foregoing are not satisfied,
such encroachments do not have a Material Adverse Effect.



     4.1.26 Leases.



     (a) The Properties are not subject to any Leases other than the Leases
disclosed to Lender in writing or set forth in the occupancy and/or rental
reports delivered to Lender on or prior to the Closing Date. Except as set
forth on Schedule 4.1.26 attached hereto, there are no Major Leases on
any Individual Property. Borrower is the owner and lessor of landlord’s
interest in the Leases. No Person has any possessory interest in any
Individual Property or right to occupy the same except under and pursuant to
the provisions of the Leases. The current
Leases are in full force and effect and there are no defaults by Borrower
or, to the best of Borrower’s knowledge, any tenant under any Lease which have
a Material Adverse Effect and, to the best of Borrower’s knowledge, there are
no conditions that, with the passage of time or the giving of notice, or both,
would constitute defaults under any Lease which would have a Material Adverse
Effect. Except as disclosed to Lender in writing or set forth in the Rent
Rolls delivered to Lender on or prior to the Closing Date, no Rent (including
security deposits) has been paid more than one (1) month in advance of its due
date. There are no offsets or defenses to the payment of



44









 





any portion of the
Rents. All work to be performed by Borrower under each Lease has been
performed as required and has been accepted by the applicable tenant, and,
except as disclosed to Lender in writing or set forth in the Rent Rolls, any
payments, free rent, partial rent, rebate of rent or other payments, credits,
allowances or abatements required to be given by Borrower to any tenant has
already been received by such tenant. There has been no prior sale, transfer
or assignment, hypothecation or pledge of any Lease or of the Rents received
therein which is still in effect. Except as disclosed to Lender in writing or
set forth in the Rent Rolls, to the best of Borrower’s knowledge, no tenant has
assigned its Lease or sublet all or any portion of the premises demised
thereby, no such tenant holds its leased premises under assignment or sublease,
nor does anyone except such tenant and its employees occupy such leased
premises. No tenant under any Lease has a right or option pursuant to such
Lease or otherwise to purchase all or any part of the leased premises or the
building of which the leased premises are a part. No tenant under any Lease
has any right or option for additional space in the Improvements. To
Borrower’s 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 any tenant under any Lease on or about the
leased premises nor does Borrower have any knowledge of any 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.



     (b) With respect to any Individual Property located within the State of
New York, Lender shall have all of the rights against lessees of each
Individual Property located in the State of New York set forth in Section 291-f
of the Real Property Law of New York.



     4.1.27 Survey. The Survey for each Individual 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 such Individual Property or the title thereto.



     4.1.28 Loan to Value. The maximum principal amount of the Loan
does not exceed one hundred twenty-five percent (125%) of the fair market value
of the Properties.



     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 transfer of the Properties to Borrower have
been 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 Security Instrument, been paid,
and, under current Legal Requirements, each Security Instrument
is enforceable in accordance with their respective terms by Lender (or any
subsequent holder thereof).



     4.1.30 Single Purpose Entity/Separateness. Borrower represents,
warrants and covenants as follows:



45









 






     (a) The purpose for which Borrower is organized is and shall be
limited solely to (i) owning, holding, selling, leasing, transferring,
exchanging, operating and managing the Properties, (ii) entering into
this Agreement with Lender, (iii) refinancing the Properties in
connection with a permitted repayment of the Loan and (iv) transacting
any and all lawful business for which a Borrower may be organized under
its constitutive law that is incident, necessary and appropriate to
accomplish the foregoing.




     (b) Borrower does not own and will not own any asset or property
other than (i) the Properties, and (ii) incidental personal property
necessary for and used or to be used in connection with the ownership or
operation of the Properties.




     (c) Borrower will not engage in any business other than the
ownership, management and operation of the Properties.




     (d) Borrower will not enter into any contract or agreement with any
Affiliate of Borrower, any constituent party of Borrower, any guarantors
of the obligations of Borrower or any Affiliate of any constituent party,
owner or guarantor (collectively, the “Related Parties”), except
upon terms and conditions that are intrinsically fair, commercially
reasonable and substantially similar to those that would be available on
an arms-length basis with third parties not so affiliated with Borrower
or such Related Parties. Borrower will maintain an arm’s length
relationship with such Related Parties or any other Person.




     (e) Borrower has not incurred and will not incur any Indebtedness
other than (i) the Loan and (ii) trade payables in the ordinary course of
business with trade creditors in amounts as are normal and reasonable
under the circumstances, provided such debt is not evidenced by a note,
does not exceed $4,000,000.00 in the aggregate, and is not in excess of
sixty (60) days past due. No Indebtedness other than the Debt may be
secured (senior, subordinate or pari passu) by the
Properties.




     (f) Borrower has not made and will not make any loans or advances to
any Person and shall not acquire obligations or securities of any Related
Party. Borrower will not form, acquire or hold any subsidiaries, or own
or acquire any stock or equity interest in any Related Parties or any
other Person (except that Borrower may invest in those investments
permitted under the Loan Documents).




     (g) Borrower is and will remain solvent and Borrower will pay its
debts and liabilities (including, as applicable, shared personnel and
overhead expenses) from its own assets only, and as the same shall become
due.




     (h) Borrower has done or caused to be done and will do all things
necessary to observe organizational formalities and preserve its
existence, and Borrower will not, nor
will Borrower permit any Related Party to, amend, modify or
otherwise change the partnership certificate, partnership agreement,
articles of incorporation and bylaws, operating agreement, trust or other
organizational documents of Borrower or such Related Party without the
prior written consent of Lender.



46









 






     (i) Borrower will maintain all of its books, records, financial
statements and bank accounts separate from those of any other Person and
Borrower’s assets will not be listed as assets on the financial statement
of any other Person except as otherwise required in accordance with GAAP.
Borrower will file its own tax returns to the extent required by
applicable law; provided, however, that Borrower’s assets and income may
be included in a consolidated tax return of its parent companies if
inclusion on such a consolidated tax return is required to comply with
the requirements of applicable law or by reason of Borrower’s being
treated as a disregarded entity for Federal income tax purposes.




     (j) Borrower will be, and at all times will hold itself out to the
public as, a legal entity separate and distinct from any other Person
(including any Affiliate or other Related Party), shall correct any known
misunderstanding regarding its status as a separate entity, shall conduct
business in its own name, shall not identify itself or any of its
Affiliates as a division or part of the other and shall maintain and
utilize separate stationery, invoices and checks.




     (k) Borrower will maintain adequate capital for the normal
obligations reasonably foreseeable in a business of its size and
character and in light of its contemplated business operations, except
that no constituent party of Borrower shall be required to make any
additional capital contributions to Borrower.




     (l) Neither Borrower nor any Related Party will seek the
dissolution, winding up, liquidation, consolidation or merger in whole or
in part, or the sale of material assets of Borrower.




     (m) Borrower will not commingle its assets with those of any other
Person and will hold all of its assets in its own name. Borrower will
deposit all of its funds in checking accounts, savings accounts, time
deposits or certificate deposits in its own name or invest such funds in
its own name.




     (n) Borrower will not guarantee or become obligated for the debts of
any other Person and does not and will not hold itself out as being
responsible for the debts or obligations of any other Person.




     (o) Unless Borrower is a single member limited liability company
formed under the laws of the State of Delaware, Borrower shall require
that a Person holding an interest in Borrower be a corporation or limited
liability company (the “SPC Party”) which will at all times
comply, and will cause Borrower to comply, with each of the
representations, warranties, and covenants contained in this Section
4.1.30 as if such representation, warranty or covenant was made
directly by such Person. The structure of Borrower and the interest of
the SPC Party shall be reasonably
acceptable to Lender and shall satisfy the requirements of the
Rating Agencies for “single purpose, bankruptcy remote entities”.
Notwithstanding the foregoing so long as Borrower is a single member
limited liability company formed under the laws of the State of Delaware
and the organizational documents of Borrower as delivered to Lender in
connection with the Closing are not modified, Borrower shall not be
required to have an SPC Party and all



47









 





provisions of this Agreement and
the other Loan Documents pertaining to SPC Party shall be disregarded.




     (p) Borrower shall at all times cause there to be at least one (1)
duly appointed members of the board of directors of the SPC Party or if
Borrower is a single member Delaware limited liability company, its board
of managers (an “Independent Director”) reasonably satisfactory to
Lender who shall not have been at the time of each such individual’s
respective appointment, and shall not be at any time while serving as a
Independent Director and may not have been at any time during the
preceding five years (i) a shareholder of, or an officer, director,
partner or employee of, Borrower or any of its or their shareholders,
subsidiaries or Affiliates, (ii) a customer of, or supplier to, or who
derives any of its purchases or revenues from its activities with
Borrower or SPC Party (if applicable) or any Affiliate of either of them
any of its or their shareholders, subsidiaries or Affiliates, (iii) a
Person controlling or under common control with any such shareholder,
partner supplier or customer, or (iv) a member of the immediate family of
any such shareholder, officer, director, partner, employee, supplier or
customer of any other director of Borrower or the SPC Party (if
applicable). Notwithstanding the foregoing, an individual that otherwise
satisfies the foregoing shall not be disqualified from serving as an
Independent Director if such individual is at the time of initial
appointment, or at any time while serving as an Independent Director, an
independent director of a “special purpose entity” affiliated with
Borrower. As used in this clause (p), the term “special purpose
entity” shall mean an entity whose organizational documents contain
restrictions on its activities and impose requirements intended to
preserve separateness that are substantially similar to those of Borrower
and provide, inter alia, that it: (a) is organized for a limited purpose;
(b) has restrictions on its ability to incur indebtedness, dissolve,
liquidate, consolidate, merge and/or sell assets; (c) may not file
voluntarily a bankruptcy petition without the consent of independent
managers or independent directors and (d) shall conduct itself in
accordance with certain “separateness covenants”, including, but not
limited to, the maintenance of its books, records, bank accounts and
assets separate from those of any other Person.




     (q) Borrower shall not cause or permit the board of directors of the
SPC Party to take any action which, under the terms of any certificate of
incorporation, by-laws or any voting trust agreement with respect to any
common stock, requires a vote of the board of directors of the SPC Party
of Borrower unless at the time of such action there shall be at least one
member who is an Independent Director.




     (r) Borrower shall allocate fairly and reasonably any overhead
expenses that are shared with an Affiliate, including paying for office
space and services performed by any employee of an Affiliate or Related
Party.




     (s) Borrower shall not pledge its assets for the benefit of any
other Person other than with respect to the Loan.




     (t) Borrower shall maintain a sufficient number of employees in
light of its contemplated business operations and pay the salaries of its
own employees from its own funds.



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     (u) Borrower shall conduct its business so that the assumptions made
with respect to Borrower in the Insolvency Opinion, a true copy of which
is attached as Schedule 4.1.30 attached hereto, shall be and
remain true and correct in all respects.



     4.1.31 Management Agreement. The Management Agreement is in full
force and effect and 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. Except with respect to the Properties
set forth on Schedule 4.1.31 attached hereto, the Properties are managed
and operated as “U-Store-It” self-service storage facilities.



     4.1.32 Illegal Activity. No portion of any Individual Property has
been or will be purchased with proceeds of any illegal activity and to the best
of Borrower’s knowledge, there are no illegal activities or activities relating
to any controlled substances at any Individual Property.



     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 and other documents submitted in connection
with the Loan or in satisfaction of the terms thereof and all statements of
fact made by Borrower in this Agreement or in any other Loan Document, are
accurate, complete and correct in all material respects. There has been no
material adverse change in any condition, fact, circumstance or event that
would make any such information inaccurate, incomplete or otherwise misleading
in any material respect or that otherwise materially and adversely affects or
might materially and adversely affect the Properties 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 Provided Information or representation or warranty made herein to be
materially misleading.



     4.1.34 Intellectual Property.



          Borrower owns or has the right to use, under valid license agreements or
otherwise, all Intellectual Property necessary to or used in the conduct of its
businesses as now conducted and as contemplated by this Agreement or the other
Loan Documents, without known conflict with any patent, license, franchise,
trademark, trade secret, trade name, copyright, or other proprietary right of
any other Person, provided, however, Borrower may not be able to use the
“U-Store-It” name with respect to the Properties set forth on Schedule
4.1.31 attached hereto. All such Intellectual Property is fully protected
and/or duly and properly registered, filed or issued in the appropriate office
and jurisdictions for such registrations, filings or issuances. No material
claim has been asserted by any Person with respect to the use of any
Intellectual Property, or challenging or questioning the validity or
effectiveness of any
Intellectual Property. The use of such Intellectual Property by Borrower
does not infringe on the rights of any Person, subject to such claims and
infringements as do not, in the aggregate, give rise to any liabilities on the
part of Borrower that could reasonably be expected to have a Material Adverse
Effect.



     4.1.35 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



49









 





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.



     4.1.36 Principal Place of Business; State of Organization.



          Borrower’s principal place of business as of the date hereof is the
address set forth in the introductory paragraph of this Agreement. Borrower is
organized under the laws of the State of Delaware and its organizational
identification number is 3859378.



     4.1.37 Business Purposes.



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



     4.1.38 Taxes.



          Borrower has filed all Federal, State, county, municipal, and city income
and other tax returns required to have been filed by it and has paid all taxes
and related liabilities which have become due pursuant to such returns or
pursuant to any assessments received by it. Borrower knows of no basis for any
additional assessment in respect of any such taxes and related liabilities for
prior years.



     4.1.39 Forfeiture.



          Neither Borrower nor, to Borrower’s actual knowledge, any other Person in
occupancy of or involved with the operation or use any of the Properties has
committed any act or omission affording the Federal government or any State or
local government the right of forfeiture as against any of the Properties or
any part thereof or any monies paid in performance of Borrower’s obligations
under the Note, this Agreement or the other Loan Documents. Borrower hereby
covenants and agrees not to commit, permit or suffer to exist any act or
omission affording such right of forfeiture.



     4.1.40 Environmental Representations and Warranties.



          Borrower represents and warrants, except as disclosed in the written
reports resulting from the environmental site assessments of the Properties
delivered to and approved by Lender prior to the Closing Date (the
“Environmental Report”) and to the best of
Borrower’s knowledge: (a) there are no Hazardous Substances or underground
storage tanks in, on, or under any of the Properties, except those that are
both (i) in compliance with current Environmental Laws and with permits issued
pursuant thereto (if such permits are required), and (ii) in amounts not in
excess of that necessary to operate, clean, repair and maintain the applicable
Individual Property or each tenant’s respective business at such Individual
Property as set forth in their respective Leases; (b) there are no past,
present or threatened Releases of Hazardous Substances in violation of any
Environmental Law in, on, under or from any of the Properties and which would
require remediation by a Governmental Authority; (c) there is no threat of any
Release of Hazardous Substances migrating to any of the Properties which would
require remediation by a



50









 





Governmental Authority; (d) there is no past or
present non-compliance with current Environmental Laws, or with permits issued
pursuant thereto, in connection with any of the Properties except as described
in the Environmental Reports; (e) Borrower does not know of, and has not
received, any written or oral notice or other communication from any Person
(including but not limited to a Governmental Authority) relating to Hazardous
Substances in, on, under or from any of the Properties; and (f) Borrower has
truthfully and fully provided to Lender, in writing, any and all information
relating to environmental conditions in, on, under or from any of the
Properties known to Borrower or contained in Borrower’s files and records,
including but not limited to any reports relating to Hazardous Substances in,
on, under or migrating to or from any of the Properties and/or to the
environmental condition of the Properties.



     4.1.41 Taxpayer Identification Number.



          Borrower’s United States taxpayer identification number is 34-1837021.



     4.1.42 OFAC.



          Borrower represents and warrants that none of Borrower or any Guarantor or
any of their respective Affiliates is a Prohibited Person, and Borrower and
each Guarantor and their respective Affiliates are in full compliance with all
applicable orders, rules, regulations and recommendations of The Office of
Foreign Assets Control of the U.S. Department of the Treasury.



     4.1.43 Ground Lease Representations.



     (a) (i) Each Ground Lease is in full force and effect and has not been
modified or amended in any manner whatsoever, (ii) there are no defaults under
any Ground Lease by Borrower, or, to the best of Borrower’s knowledge, landlord
thereunder, and, to the best of Borrower’s knowledge, no event has occurred
which but for the passage of time, or notice, or both would constitute a
default under such Ground Lease, (iii) all rents, additional rents and other
sums due and payable under each Ground Lease have been paid in full, (iv)
neither Borrower nor the landlord under each Ground Lease has commenced any
action or given or received any notice for the purpose of terminating such
Ground Lease, (v) no Fee Owner, as debtor in possession or by a trustee for
such Fee Owner, has given any notice of, and Borrower has not consented to, any
attempt to sell or transfer the related Fee Estate free and clear of such
Ground Lease under Section 363(f) (or any similar provision) of the Bankruptcy
Code, and (vi) to the best of Borrower’s knowledge, no Fee Owner under any
Ground Lease is subject to any
voluntary or involuntary bankruptcy, reorganization or insolvency
proceeding and no Fee Estate with respect to any Ground Lease is an asset being
administered in any voluntary or involuntary bankruptcy, reorganization or
insolvency proceeding.



     (b) The Ground Lease does not by its terms provide that it will be
subordinated to the Lien of any other mortgage or other Lien upon the related
fee interest;



     (c) The Ground Leases or a memorandum thereof have been duly recorded, the
Ground Leases permits the interest of the lessee thereunder to be encumbered by
the applicable Security Instrument, and there has not been any change in the
terms of the Ground Leases since their recordation;



51









 





     (d) Except as indicated in the related Title Insurance Policy, Borrower’s
interest in the Ground Leases are not subject to any Liens superior to, or of
equal priority with, the applicable Security Instrument;



     (e) Borrower’s interest in the Ground Leases are assignable upon notice
to, but without the consent of, Fee Owner thereunder and, in the event that it
is so assigned, it is further assignable upon notice to, but without the need
to obtain the consent of, such Fee Owner;



     (f) The Ground Leases require Fee Owner thereunder to give notice of any
default by Borrower to Lender and the Ground Lease Estoppel provides that
notice of termination given under the Ground Leases are not effective against
Lender unless a copy of the notice has been delivered to Lender in the manner
described in the applicable Ground Lease;



     (g) Lender is permitted the opportunity (including, where necessary,
sufficient time to gain possession of the interest of Borrower under the Ground
Leases) to cure any default under the Ground Leases, which is curable after the
receipt of notice of any default before Fee Owner thereunder may terminate such
Ground Lease;



     (h) Each Ground Lease has a term (including extension options) which
extends not less than twenty (20) years beyond the Maturity Date;



     (i) The Ground Lease Estoppel provides that Fee Owner thereunder shall
enter into a new lease with Lender upon termination of the applicable Ground
Lease for any reason, including rejection of such Ground Lease in a bankruptcy
proceeding;



     (j) Under the terms of each Ground Lease and the applicable Loan
Documents, taken together, any Net Proceeds will be applied either to the
Restoration of all or part of the Properties, with Lender or a trustee
appointed by Lender having the right to hold and disburse such Net Proceeds as
the Restoration progresses, or to the payment of the outstanding principal
balance of the Loan together with any accrued interest thereon; and



     (k) The Ground Leases do not impose restrictions on subletting.



     4.1.44 Embargoed Person.



          As of the date hereof and at all times throughout the term of the Loan,
including after giving effect to any transfers permitted pursuant to the Loan
Documents, (a) none of the funds or other assets of Borrower, SPC Party or any
Guarantor constitutes property of, or are beneficially owned, directly or
indirectly, by any person, entity or government subject to trade restrictions
under U.S. law, including but not limited to, the International Emergency
Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act,
50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated
thereunder with the result that the investment in Borrower, SPC Party or any
Guarantor (whether directly or indirectly), is prohibited by law or the Loan
made by the Lender is in violation of law (“Embargoed Person”); (b) no
Embargoed Person has any interest of any nature whatsoever in Borrower, SPC
Party or any Guarantor with the result that the investment in Borrower, SPC
Party or any Guarantor (whether directly or indirectly), is prohibited by law
or the Loan is in violation of law; and (c) none of the funds of Borrower, SPC
Party or any Guarantor (whether directly or indirectly), has



52









 





been derived from
any unlawful activity with the result that the investment in Borrower, SPC
Party or any Guarantor (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.



     V. BORROWER COVENANTS



     Section 5.1 Affirmative Covenants.



          From the date hereof and until payment and performance in full of all
obligations of Borrower under the Loan Documents or the earlier release of the
Liens of all Security Instruments encumbering the Properties (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.



     (a) Borrower shall do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its existence, rights,
licenses, permits and franchises, and comply, in all material respects, with
all Legal Requirements applicable to it and the Properties. There shall never
be committed by Borrower, nor shall Borrower suffer or permit any other Person
in occupancy of or involved with the operation or use of the Properties to do,
any act or omission affording the Federal government or any State or local
government the right of forfeiture as against any Individual 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 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 Properties 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 this Agreement and the Security Instruments. Borrower shall keep the
Properties 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
any Individual Property that is the subject of any O&M Program in accordance
with the terms and provisions thereof in all material respects.



     (b) 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



53









 





diligence, the validity of any Legal Requirement, the
applicability of any Legal Requirement to Borrower or any Individual Property
or any alleged violation of any Legal Requirement, provided that (i) no Default
or Event of Default has occurred and remains uncured; (ii) such proceeding
shall be permitted under and be conducted in accordance with the provisions of
any instrument to which Borrower is subject and shall not constitute a default
thereunder and such proceeding shall be conducted in accordance with all
applicable laws; (iii) no Individual 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 comply with
any such Legal Requirement determined to be valid or applicable or cure any
violation of any Legal Requirement; (v) such proceeding shall suspend the
enforcement of the contested Legal Requirement against Borrower or any
Individual Property; and (vi) 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. Lender may apply any such security
or part thereof, as necessary to cause compliance with such Legal Requirement
at any time when, in the judgment of Lender, the validity, applicability or
violation of such Legal Requirement is finally established or any Individual
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 all Taxes and
Other Charges now or hereafter levied or assessed or imposed against the
Properties or any part thereof as the same become due and payable; provided,
however, Borrower’s obligation to directly pay Taxes and comply with the
following sentence shall be suspended for so long as Borrower complies with 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. 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 Properties, and shall promptly
pay for all utility services provided to the Properties. 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) no Default or Event of Default has
occurred and
remains uncured; (ii) such proceeding shall be permitted under and be
conducted in accordance with the provisions of any other instrument to which
Borrower is subject and shall not constitute a default thereunder and such
proceeding shall be conducted in accordance with all applicable statutes, laws
and ordinances; (iii) no Individual 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
applicable Individual Property; and (vi) Borrower shall furnish such security
as may be required in the proceeding, or as may be requested by Lender, to
insure the payment of any such Taxes or Other Charges, together with all
interest and penalties thereon. Lender may pay over any such cash deposit or
part thereof held by Lender to the claimant entitled thereto at any time when,
in the judgment of Lender, the entitlement of such claimant is established or
any Individual Property (or part thereof or interest therein) shall be in
danger of being sold, forfeited, terminated,



54









 





cancelled or lost or there shall
be any danger of the Lien of any Security Instrument being primed by any
related Lien.



     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 any Individual Property.



     5.1.4 Access to Properties. Borrower shall permit agents,
representatives and employees of Lender to inspect the Properties or any part
thereof at reasonable hours upon reasonable advance notice.



     5.1.5 Notice of Default. Borrower shall promptly advise Lender of
any Material Adverse Effect on 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 adversely 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. Borrower
shall execute and deliver the Cash Management Agreement within fifteen (15)
Business Days of the Closing Date.



     5.1.8 Awards or Insurance Benefits. Borrower shall cooperate with
Lender in obtaining for Lender the benefits of any Awards or Insurance Proceeds
lawfully or equitably payable in connection with any Individual Property, and
Lender shall be reimbursed for any expenses incurred in connection therewith
(including attorneys’ fees and disbursements, and the payment by Borrower of
the expense of an appraisal on behalf of Lender in case of a Casualty or
Condemnation affecting any Individual Property or any part thereof) out of
such Award or 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, including, without



55









 





limitation, the
authorization of Lender to execute and/or the execution by Borrower of UCC
financing statements; 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 Supplemental Security Instrument Affidavits. As of the date
hereof, Borrower represents that it has paid all State, county and municipal
recording and all other taxes imposed upon the execution and recordation of the
Security Instruments. If at any time Lender determines, based on applicable
law, that Lender is not being afforded the maximum amount of security available
from any one or more of the Properties as a direct or indirect result of
applicable taxes not having been paid with respect to any Individual Property,
Borrower agrees that Borrower will execute, acknowledge and deliver to Lender,
immediately upon Lender’s request, supplemental affidavits increasing the
amount of the Debt attributable to any such Individual Property (as set forth
as the Release Amount on Schedule I attached hereto) for which all
applicable taxes have been paid to an amount determined by Lender to be equal
to the lesser of (a) the greater of the fair market value of the applicable
Individual Property (i) as of the date hereof and (ii) as of the date such
supplemental affidavits are to be delivered to Lender, and (b) the amount of
the Debt attributable to any such Individual Property (as set forth as the
Release Amount on Schedule I attached hereto), and Borrower shall, on
demand, pay any additional taxes.



     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 GAAP (or such other
accounting basis acceptable to Lender), proper and accurate books, records and
accounts reflecting all of the financial affairs of Borrower and all items of
income and expense in connection with the operation on an individual basis of
the Properties. 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 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
Properties, as Lender shall 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, a complete copy of
Borrower’s annual financial statements audited by an Acceptable Accountant in
accordance with GAAP (or such other accounting basis acceptable to Lender)
covering the Properties on a combined basis as well as each Individual Property
for such Fiscal Year and containing statements of profit and loss for Borrower
and the Properties and a balance sheet for Borrower. Such statements shall set
forth the financial condition and the results of operations for the Properties
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



56









 





and expenses for the prior Fiscal Year; (ii) an Officer’s
Certificate stating that each such annual financial statement presents fairly
the financial condition and the results of operations of Borrower and the
Properties being reported upon and has been prepared in accordance with GAAP;
(iii) an unqualified opinion of an Acceptable Accountant; (iv) a list of
tenants under Major Leases; (v) a breakdown showing the year in which each
Major Lease then in effect expires and the percentage of total floor area of
the Improvements and the percentage of base rent with respect to which Major
Leases shall expire in each such year, each such percentage to be expressed on
both a per year and cumulative basis; (vi) if requested by Lender, an annual
occupancy report for such year; and (vii) a schedule audited by such Acceptable
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 Acceptable
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 twenty (20) days after the end of each calendar month the following
items, accompanied by an Officer’s Certificate 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 Properties on a
combined basis as well as each Individual Property (subject to normal year-end
adjustments) as applicable: (i) a rent roll or other record of leasing for the
subject month accompanied by an Officer’s Certificate with respect thereto;
(ii) monthly and year-to-date operating statements (including Capital
Expenditures) prepared for each calendar month, 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 Properties during such calendar month (on a combined basis as
well as each Individual Property), and containing a comparison of budgeted
income and expenses and the actual income and expenses; (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. In
addition, such certificate shall also state that the representations and
warranties of Borrower set forth in Section 4.1.30 are true and correct as of
the date of such certificate and that there are no trade payables outstanding
for more than sixty (60) days.



     (d) For the partial year period commencing on the date hereof, and for
each Fiscal Year thereafter, Borrower shall submit to Lender an Annual Budget
not later than sixty (60) days prior to the commencement of such period or
Fiscal Year in form reasonably satisfactory to Lender.



     (e) Intentionally Deleted.



     (f) 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



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to the operation of any Individual Property
and the financial affairs of Borrower as may be reasonably requested by Lender.



     (g) 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 in electronic form and prepared using a
Microsoft Word for Windows or Microsoft Excel for Windows program.



     (h) Borrower agrees that Lender may forward to each purchaser, transferee,
assignee, servicer, participant, or investor in all or any portion of the Loan
or any Securities or any Rating Agency rating such participations and/or
Securities and each prospective investor, and any organization maintaining
databases on the underwriting and performance of commercial mortgage loans, all
documents and information which Lender now has or may hereafter acquire
relating to the Debt and to Borrower, any Guarantor and the Properties, whether
furnished by Borrower, any Guarantor or otherwise, as Lender determines
necessary or desirable. Borrower irrevocably waives any and all rights it may
have under any applicable laws to prohibit such disclosure, including, but not
limited, to any right of privacy.



     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
Properties. 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
Properties.



     5.1.13 Title to the Properties. Borrower will warrant and defend
(a) the title to each Individual Property and every part thereof, subject only
to Liens permitted hereunder (including Permitted Encumbrances) and (b) the
validity and priority of the Liens of the Security Instruments and the
Assignments of Leases on the Properties, 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 any Individual Property, other than as permitted hereunder,
is claimed by another Person.



     5.1.14 Costs of Enforcement. In the event (a) that any Security
Instrument encumbering any Individual Property is foreclosed in whole or in
part or that any such Security Instrument 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 any Security Instrument encumbering any
Individual Property in which proceeding Lender is made a party, or (c) of the
bankruptcy, insolvency, rehabilitation or other similar proceeding in respect
of Borrower 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 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



58









 





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 Security Instruments
and the other Loan Documents are valid, legal and binding obligations and have
not been modified or if modified, giving particulars of such modification.



     (a) After request by Lender, Borrower shall use its commercially
reasonable efforts to deliver to Lender, tenant estoppel certificates from each
commercial tenant leasing space at the Properties pursuant to a Major Lease in
form and substance reasonably satisfactory to Lender provided that Borrower
shall not be required to deliver such certificates more frequently than two (2)
times in any calendar year.



     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 hereof.



     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 in all
relevant jurisdictions, and (b) certificates of the relevant Governmental
Authorities in all relevant jurisdictions indicating the good standing and
qualification of Borrower and SPC Party as of the date of the Securitization.



     5.1.19 No Joint Assessment. Borrower shall not suffer, permit or
initiate the joint assessment of any Individual Property (a) with any other
real property constituting a tax lot separate from such Individual Property,
and (b) which constitutes real property with any portion of such Individual
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 Individual Property.



     5.1.20 Leasing Matters.



     (a) Except as otherwise consented to by Lender in writing, all Leases
shall be written on the standard form of lease which shall have been approved
by Lender. Upon reasonable request (not to be made more than once in any
consecutive twelve (12) month period), Borrower shall furnish Lender with
executed copies of a sample of the Leases as requested by Lender. No material
changes may be made to the Lender-approved standard form of lease without the
prior written consent of Lender. In addition, all renewals of Leases and all
proposed leases shall provide for rental rates and terms comparable to existing
local market rates and terms and shall be arm’s-length transactions with bona
fide, independent third party tenants. All Major Leases



59









 





shall provide that
they are subordinate to the applicable Security Instrument and that the tenant
agrees to attorn to Lender.



     (b) Borrower (i) shall observe and perform all the obligations imposed
upon the landlord under the Leases and shall not do or permit to be done
anything to impair the value of the Leases as security for the Debt; (ii) shall
enforce all of the terms, covenants and conditions contained in the Leases upon
the part of the tenant thereunder to be observed or performed (except for
termination of a Major Lease which shall require Lender’s prior written
approval); (iii) shall not collect any of the Rents more than two (2) months in
advance (other than security deposits); (iv) shall not execute any other
assignment of the landlord’s interest in the Leases or the Rents; and (v) shall
not consent to any assignment of or subletting under the Leases not in
accordance with their terms, without the prior written consent of Lender.



     (c) All proposed Leases, renewals of Leases or amendments or terminations
of Leases shall be subject to the prior approval of Lender, which approval
shall not be unreasonably withheld, conditioned or delayed; provided, however,
Borrower may, without the consent of Lender, terminate any Lease (other than a
Major Lease) if the tenant thereunder is in default beyond applicable notice
and grace periods under such Lease. Notwithstanding the provisions of the
preceding sentence, renewals of Leases and proposed Leases shall not be subject
to the prior approval of Lender, provided all of the following conditions are
satisfied: (i) the Lease is not a Major Lease; (ii) the term is on a
month-to-month basis; (iii) the renewal or proposed Lease is on the standard
form of lease approved by Lender and provides for a term of less than one (1)
year; (iv) the renewal or proposed Lease does not contain any option, offer,
right of first refusal, or other similar right to acquire all or any portion of
the applicable Individual Property; and (v) the renewal or proposed Lease
provides for rental rates and terms (including credits or concessions)
comparable to existing market rates and terms and is an arm’s-length
transaction with a bona fide, independent third party tenant. Upon Lender’s
reasonable request, Borrower shall deliver to Lender, (i) within thirty (30)
days after the execution of any renewal or proposed Major Lease, copies of all
such Major Leases, and (ii) within thirty days of such request, Borrower’s
certification that it has satisfied all of the conditions of this Section
5.1.20(c) with respect to all
renewal or new Leases (which are not Major Leases) which were entered into
pursuant to this Section 5.1.20(c) since the date of Lender’s last request.



     5.1.21 Alterations. 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. Notwithstanding the foregoing, Lender’s
consent shall not be required in connection with any alterations that will not
have a Material Adverse Effect, 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 date hereof, (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, or (c) alterations performed in
connection with the restoration of an Individual Property after the occurrence
of a casualty in accordance with the terms and provisions of this Agreement.
If the total unpaid amounts with respect to alterations to the Improvements at
any Individual Property (other than such amounts to be paid or reimbursed by
tenants under the Leases), together with any other alterations undertaken at
the



60









 





same time at any of the other Properties, shall at any time exceed Four
Million and 00/100 Dollars ($4,000,000.00) (the “Threshold Amountf”),
Borrower 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 S&P 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 applicable Individual Property (other than such amounts to
be paid or reimbursed by tenants under the Leases), together with any other
alterations undertaken at the same time at any of the other Properties over the
Threshold Amount and applied from time to time at the option of Lender to pay
for such alterations or to terminate any of the alterations and restore the
applicable Properties to the extent necessary to prevent any Material Adverse
Effect.



     5.1.22 Environmental Covenants.



     (a) Borrower covenants and agrees that so long as the Loan is outstanding
(i) all uses and operations on or of the Properties, whether by Borrower or any
other Person, shall be in compliance in all material respects with all
Environmental Laws and permits issued pursuant thereto; (ii) Borrower shall not
cause or permit any Releases of Hazardous Substances in, on, under or from any
of the Properties; (iii) there shall be no Hazardous Substances in, on, or
under any of the Properties, except those that are both (A) in compliance with
all Environmental Laws and with permits issued pursuant thereto, if and to the
extent required, and (B) (1) in amounts not in excess of that necessary to
operate the applicable Individual Property or (2) fully disclosed to
and approved by Lender in writing; (iv) Borrower shall keep the Properties
free and clear of all liens and other encumbrances imposed pursuant to any
Environmental Law, whether due to any act or omission of Borrower or any other
Person (the “Environmental Liens”); (v) Borrower shall, at its sole cost
and expense, fully and expeditiously cooperate in all activities pursuant to
paragraph (b) below, including but not limited to providing all relevant
information and making knowledgeable persons available for interviews; (vi)
Borrower shall, at its sole cost and expense, perform any environmental site
assessment or other investigation of environmental conditions in connection
with any of the Properties, pursuant to any reasonable written request of
Lender, upon Lender’s reasonable belief that an Individual Property is not in
full compliance with all Environmental Laws, and share with Lender the reports
and other results thereof, and Lender and other Indemnified Parties shall be
entitled to rely on such reports and other results thereof; (vii) Borrower
shall, at its sole cost and expense, comply with all reasonable written
requests of Lender to (A) reasonably effectuate remediation of any Hazardous
Substances in, on, under or from any Individual Property to the extent required
by Environmental Laws; and (B) comply with any Environmental Law; (viii)
Borrower shall not allow any tenant or other user of any of the Properties to
violate any Environmental Law; and (ix) Borrower shall immediately notify
Lender in writing after it has become aware of: (A) any presence or Release or
threatened



61









 





Releases of Hazardous Substances in, on, under, from or migrating
towards any of the Properties if it would reasonably be expected to result in a
Material Adverse Effect; (B) any non compliance with any Environmental Laws
related in any way to any of the Properties if it would reasonably be expected
to result in a Material Adverse Effect; (C) any actual or potential
Environmental Lien; (D) any required or proposed remediation of environmental
conditions relating to any of the Properties; and (E) any written or oral
notice or other communication of which Borrower becomes aware from any source
whatsoever (including but not limited to a Governmental Authority) relating in
any way to Hazardous Substances.



     (b) Lender and any other Person designated by Lender, including but not
limited to any representative of a Governmental Authority, and any
environmental consultant, and any receiver appointed by any court of competent
jurisdiction, shall have the right, but not the obligation, to enter upon any
Individual Property at all reasonable times upon reasonable notice to Borrower
to assess any and all aspects of the environmental condition of any Individual
Property and its use, including but not limited to conducting any environmental
assessment or audit (the scope and need of which shall be determined in
Lender’s reasonable discretion based upon its good-faith belief that any
Individual Property is not in full compliance with all Environmental Laws) and
taking samples of soil, groundwater or other water, air, or building materials,
and conducting other invasive testing reasonably necessary to assess the
environmental condition of such Individual Property. Borrower shall cooperate
with and provide access to Lender and any such Person or entity designated by
Lender and Lender shall take reasonable steps to minimize any disruption to
Borrower’s use and operation of such Individual Property.



     5.1.23 OFAC.



          At all times throughout the term of the Loan, Borrower, each Guarantor and
their respective Affiliates shall be in full compliance with all applicable
orders, rules, regulations and recommendations of The Office of Foreign Assets
Control of the U.S. Department of the Treasury.



     5.1.24 O&M Program.



          Borrower covenants and agrees to implement and follow the terms and
conditions of the O&M Program for each applicable Property during the term of
the Loan, including any extension or renewal thereof. Lender’s requirement
that Borrower comply with the O&M Program shall not be deemed to constitute a
waiver or modification of any of Borrower’s covenants and agreements with
respect to Hazardous Substances or Environmental Laws.



     5.1.25 The Ground Leases.



          With respect to each Ground Lease:



     (a) Borrower shall (i) pay all rents, additional rents and other sums
required to be paid by Borrower, as tenant under and pursuant to the provisions
of each Ground Lease, (ii) diligently perform and observe all of the terms,
covenants and conditions of each Ground Lease on the part of Borrower, as
tenant thereunder, (iii) promptly notify Lender of the giving of any notice by
the Fee Owner under the applicable Ground Lease to Borrower of any default by



62









 





Borrower, as tenant thereunder, and deliver to Lender a true copy of each such
notice within five (5) Business Days of receipt and (iv) promptly notify Lender
of any bankruptcy, reorganization or insolvency proceeding of the Fee Owner
under the applicable Ground Lease or of any notice thereof, and deliver to
Lender a true copy of such notice within five (5) Business Days of Borrower’s
receipt, together with copies of all notices, pleadings, schedules and similar
matters received by Borrower in connection with such bankruptcy, reorganization
or insolvency proceeding within five (5) Business Days after receipt. Borrower
shall not, without the prior consent of Lender, (x) surrender the leasehold
estate created by the applicable Ground Lease or terminate or cancel any Ground
Lease or modify, change, supplement, alter or amend any Ground Lease, either
orally or in writing, (y) consent to, acquiesce in, or fail to object to, any
attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee
Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free
and clear of the Ground Lease under Section 363(f) (or any similar provision)
of the Bankruptcy Code or otherwise. Borrower shall object to any such attempt
by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner,
to sell or transfer the Fee Estate with respect to any Ground Lease free and
clear of the Ground Lease under Section 363(f) (or any similar provision) of
the Bankruptcy Code or otherwise, and in such event shall affirmatively assert
and pursue its right to adequate protection under Section 363(e) (or any
similar provision) of the Bankruptcy Code. Borrower hereby assigns to Lender
all of its rights and claims under Section 363 of the Bankruptcy Code to
consent or object to any sale or transfer of such Fee Estate, to seek valuation
of the Ground Lease and adequate protection with respect to the same and grants
to Lender the right to object to any such sale or transfer on behalf of
Borrower, and Borrower shall not contest any pleadings, motions documents or
other actions filed or taken by Lender on Lender’s or Borrower’s behalf in the
event that any Fee Owner, as debtor-in-possession or by a trustee for such Fee
Owner, attempts to sell or transfer the Fee Estate with respect to any Ground
Lease or under Section 363(f) (or any similar provision) of the Bankruptcy Code
or otherwise, or (z) vacate the premises upon the land underlying the Ground
Lease.



     (b) If Borrower shall default in the performance or observance of any
term, covenant or condition of any Ground Lease on the part of Borrower, as
tenant thereunder, and shall fail to
cure the same prior to the expiration of any applicable cure period
provided thereunder, Lender shall have the right, but shall be under no
obligation, to pay any sums and to perform any act or take any action as may be
appropriate to cause all of the terms, covenants and conditions of such Ground
Lease on the part of Borrower to be performed or observed on behalf of
Borrower, to the end that the rights of Borrower in, to and under such Ground
Lease shall be kept unimpaired and free from default. If the landlord under
the applicable Ground Lease shall deliver to Lender a copy of any notice of
default under such Ground Lease, such notice shall constitute full protection
to Lender for any action taken or omitted to be taken by Lender, in good faith,
in reliance thereon. Borrower shall exercise each individual option, if any,
to extend or renew the term of each Ground Lease upon demand by Lender made at
any time within one (1) year prior to the last day upon which any such option
may be exercised, and Borrower hereby expressly authorizes and appoints Lender
its attorney-in-fact to exercise any such option in the name of and upon behalf
of Borrower, which power of attorney shall be irrevocable and shall be deemed
to be coupled with an interest.



     (c) Subleases. Notwithstanding anything contained in any Ground
Lease to the contrary, Borrower shall not further sublet any portion of the
related Individual Property (other



63









 





than as permitted pursuant to Section 5.1.20
hereof) without prior written consent of Lender. Each sublease hereafter made
(other than as permitted pursuant to Section 5.1.20 hereof) shall provide that,
(a) in the event of the termination of the Ground Lease, the sublease shall not
terminate or be terminable by the lessee thereunder; (b) in the event of any
action for the foreclosure of the Security Instrument with respect to the
related Individual Property, the sublease shall not terminate or be terminable
by the lessee thereunder by reason of the termination of the Ground Lease
unless such lessee is specifically named and joined in any such action and
unless a judgment is obtained therein against such lessee; and (c) in the event
that the Ground Lease is terminated as aforesaid, the lessee under the sublease
shall attorn to the lessor under the Ground Lease or to the purchaser at the
sale of the related Individual Property on such foreclosure, as the case may
be. In the event that any portion of such Individual Property shall be sublet
pursuant to the terms of this subsection, such sublease shall be deemed to be
included in the Individual Property.



     Section 5.2 Negative Covenants.



          From the date hereof until payment and performance in full of all
obligations of Borrower under the Loan Documents or the earlier release of the
Liens of all Security Instruments encumbering the Properties (and all related
obligations) 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 (which consent shall not be unreasonably withheld), amend,
modify, cancel or terminate the Management Agreement or otherwise replace the
Manager or enter into any other management agreement with respect to any
Individual Property.



     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
any Individual Property or permit any such action to be taken, except:




	(i)	 	Permitted Encumbrances;
	 
	(ii)	 	Liens created by or permitted pursuant to the Loan Documents;
and
	 
	(iii)	 	Liens for Taxes or Other Charges not yet due.





     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 Properties, (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) except as expressly permitted under the
Loan Documents, modify, amend, waive or terminate its organizational documents
or its qualification and good standing in any jurisdiction or (e) cause the SPC
Party to (i) dissolve, wind up or liquidate or take any action, or omit to take
an action, as a result of which the SPC Party would be dissolved, wound up or
liquidated in whole or in part, or (ii) except as expressly permitted under the
Loan Documents, amend, modify, waive or terminate the certificate of
incorporation, bylaws or similar organizational documents of the



64









 





SPC Party, 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, acquisition, development, operation,
leasing and management of the Properties (including providing services in
connection therewith), 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 material 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
Affiliates of Borrower except in the ordinary course of business and on terms
which 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 any Individual Property or seek any variance
under any existing zoning ordinance or use or permit the use of any portion of
any Individual 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 property
other than the Properties.



     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 any Individual Property with (a) any other
real property constituting a tax lot separate from such Individual Property, or
(b) any portion of such Individual 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 Individual Property.



     5.2.11 Principal Place of Business. Borrower shall not change its
principal place of business set forth on the first page of this Agreement
without first giving Lender thirty (30) days prior written notice.



     5.2.12 ERISA. (a) During the term of the Loan or of any obligation
or right hereunder, Borrower shall not be a Plan and none of the assets of
Borrower shall constitute Plan Assets.



     (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



65









 





sole discretion, and represents and
covenants that (A) Borrower is not and does not maintain an “employee benefit
plan” as defined in Section 3(3) of ERISA, which is subject to Title I of
ERISA, or a “governmental plan” within the meaning of Section 3(32) 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. (a) Except as otherwise permitted by the
provisions of this Section 5.2.13 or except to the extent permitted elsewhere
in the Loan Documents, Borrower will not (i) permit or suffer (by operation of
law or otherwise) any sale, assignment, conveyance, transfer or other
disposition of legal or equitable interest in all or any part of any Individual
Property, (ii) permit or suffer (by operation of law or otherwise) any sale,
assignment, conveyance, transfer or other disposition of any direct or indirect
interest in Borrower, (iii) permit or suffer (by operation of law or otherwise)
any mortgage, lien or other encumbrance of all or any part of any Individual
Property, (iv) permit or suffer (by operation of law or otherwise) any pledge,
hypothecation, creation of a security interest in or other encumbrance of any
direct or indirect interests in Borrower, or (v) file a declaration of
condominium with respect to any Individual Property.



     (b) A sale or conveyance by Borrower of any Individual Property (but not a
mortgage, lien or other encumbrance) is permitted provided that each of the
following conditions have been satisfied:




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




     (ii) the Person to whom such Individual Property is sold or
conveyed satisfies the requirements of a Special Purpose Entity and
not less than 50% of the direct or indirect interests are owned and
controlled by a Permitted Owner;




     (iii) Lender has received a non-consolidation opinion which
may be relied upon by Lender, the Rating Agencies and their
respective counsel, successors and assigns, with respect to the
sale or conveyance, which opinion shall be reasonably acceptable to
Lender and, after a Securitization, the Rating Agencies;




     (iv) if a Securitization has occurred, Borrower shall deliver
confirmation in writing from the applicable Rating Agencies to the
effect that such transfer or sale will not result in a downgrading,
withdrawal or qualification



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of the respective ratings in effect
immediately prior to such transfer or sale for the Securities
issued in connection with the Securitization which are then
outstanding;




     (v) the transferee of such Individual Property shall execute
an assumption of all of the obligations of the Borrower under the
Loan Agreement, the applicable Security Instrument and the other
Loan Documents, subject, however, to the provisions of Section 9.4
of this Agreement and the proposed replacement guarantor shall
assume all of the obligations of Guarantor under the Guaranty, in a
manner satisfactory to Lender in all respects, including, without
limitation, by entering into an assumption agreement in form and
substance satisfactory to Lender, and, in each case, delivering
such legal opinions as Lender may reasonably require;




     (vi) Borrower shall give written notice to Lender of the
proposed sale or conveyance not later than fifteen (15) days prior
thereto, which notice shall set forth the name of the proposed
transferee, identify the owners of such direct and indirect
interests of the proposed transferee and set forth the date the
sale or conveyance is expected to be effective.



     (c) A transfer or sale (but not a pledge, hypothecation, creation of a
security interest in or other encumbrance) of an indirect ownership interest in
Borrower (other than those expressly permitted pursuant to Section 5.2.13(d)
hereof) is permitted provided the following conditions have been satisfied:




     (i) such transfer or sale is to a Permitted Owner;




     (ii) prior to any such transfer or sale of direct or indirect
ownership interests in Borrower, as a result of which (and after
giving effect to such transfer or sale), more than 49% of the
direct or indirect ownership interests in Borrower
shall have been transferred to a Person or entity not owning
at least 49% of the direct or indirect ownership interests in
Borrower on the date of closing, Borrower shall deliver to Lender a
non-consolidation opinion which may be relied upon by Lender, the
Rating Agencies and their respective counsel, successors and
assigns, with respect to the proposed transfer or sale, which
opinion shall be reasonably acceptable to Lender and, after a
Securitization, the Rating Agencies;




     (iii) immediately prior to such transfer or sale no Event of
Default has occurred and is continuing;




     (iv) Borrower shall deliver confirmation in writing from the
applicable Rating Agencies to the effect that such transfer or sale
will not result in a downgrading, withdrawal or qualification of
the respective ratings in effect immediately prior to such transfer
or sale for the Securities issued in connection with the
Securitization which are then outstanding; and




     (v) Borrower shall give or cause to be given written notice to
Lender of the proposed transfer or sale not later than fifteen (15)
days prior thereto, which notice shall set forth the name of the
Person to which the interest in Borrower is to



67









 





be transferred or
sold, identify the proposed transferee and set forth the date the
transfer or sale is expected to be effective.



     (d) Notwithstanding the provisions of Sections 5.2.13(a) and (c) hereof,
the following transfers or sales shall not be deemed to be a transfer or sale
in violation of the provisions of this Section 5.2.13: (i) a transfer by devise
or descent or by operation of law upon the death of a member, partner or
shareholder of a Restricted Party or a Restricted Party itself; (ii) the
transfer or sale, in one or a series of transactions, of not more than
forty-nine percent (49%) of the stock in a Restricted Party (other than
Guarantor); provided, however, no such transfer or sale shall result in the
change of voting control in such Restricted Party; (iii) the transfer or sale,
in one or a series of transactions, of not more than forty-nine percent (49%)
of the limited partnership interests or non-managing membership interests (as
the case may be) in a Restricted Party (other than Guarantor); provided,
however, no such transfer or sale shall result in the change of voting control
in such Restricted Party; (iv) the transfer or sale by Sponsor, in one or a
series of transactions, of not more than twenty-five percent (25%) of the
general partnership interests in Guarantor; provided, however, no such transfer
or sale shall result in the change of voting control in Guarantor; and (v) the
transfer or sale by any limited partner of Guarantor, in one or a series of
transactions, of not more than forty-nine percent (49%) of the limited
partnership interests in Guarantor; provided, however, no such transfer or sale
shall result in the change of voting control in Guarantor. In connection with
any such transfer or sale pursuant to clauses (ii) through (v) above, and as a
condition to each such transfer or sale, Lender shall receive not less than ten
(10) days prior written notice of such proposed transfer or sale.



     (e) Borrower agrees to bear and shall reimburse Lender on demand all
reasonable expenses incurred by Lender in connection with any transaction
described in this Section 5.2.13.



     (f) Lender shall not be required to demonstrate any actual impairment of
its security or any increased risk of default hereunder in order to declare the
Debt immediately due and payable upon any violation of this Section 5.2.13.



     (g) The provisions of this Section 5.2.13 shall not be modified or amended
by Borrower and Lender unless the Rating Agencies have confirmed that such
amendment or modification will not result in a downgrade, qualification or
withdrawal of the then current ratings assigned to the Securities.



     (h) Nothing contained in this Section 5.2.13 or in any other provision of
this Agreement or in any of the other Loan Documents shall limit or prohibit
transfers, sales, pledges or issuance of direct interests in Sponsor (the
“Traded Entity”); provided the Traded Entity complies with the
provisions of Section 5.3 hereof.



     (i) Notwithstanding the preceding provisions of this Section 5.2.13,
Borrower upon prior consent of Lender (which shall not be unreasonably withheld
upon receipt of such information pertaining to such transfer as Lender may
request) may (i) make transfers of immaterial portions of the Property to
Governmental Authorities in connection with a Condemnation of such immaterial
portions of the Property for dedication or public use, and (ii) grant
easements, restrictions, covenants, reservations and rights of way in the
ordinary course of business for water and sewer lines, telephone and telegraph
lines, electric lines and other




68










 




utilities or for other similar purposes,
provided that no such transfer, described in the foregoing clauses (i) and (ii)
shall materially impair the utility and operation of the Property or materially
adversely affect the value of the Property or materially adversely affect
Borrower’s ability to pay the Debt, the Interest Only Payment Amount or the
Monthly Debt Service Payment Amount. Lender shall approve or disapprove such
transfers or easements within thirty (30) days after receipt of all information
pertaining thereto by Borrower.




     (i) Notwithstanding anything to the contrary contained in this Section
5.2.13 and except with respect to the Person to whom an Individual Property is
sold or conveyed pursuant to Section 5.2.13(b) hereof, Sponsor must continue to
control Borrower and Guarantor and own, directly or indirectly, at least a 51%
interest in Borrower and in Guarantor.



          Lender shall not be required to demonstrate any actual impairment of its
security or any increased risk of default hereunder in order to declare the
Debt immediately due and payable upon a transfer in violation of this Section
5.2.13. This provision shall apply to every transfer regardless of whether
voluntary or not, or whether or not Lender has consented to any previous
transfer. Notwithstanding anything to the contrary contained in this Section
5.2.13, (a) no transfer shall be made to any Prohibited Person and (b) in the
event any transfer results in any Person owning in excess of forty-nine percent
(49%) of the ownership interest in any direct or indirect owner of Borrower or
Guarantor and a Securitization has occurred, Borrower shall, prior to such
transfer, deliver an updated Insolvency Opinion to Lender, which opinion shall
be in form, scope and substance acceptable in all respects to Lender and the
Rating Agencies.



     Section 5.3 Traded Shares.



          The Traded Entity shall cause its issued and outstanding shares of stock
or other ownership units to be listed for trading on the New York Stock
Exchange or such other nationally recognized stock exchange throughout the term
of the Loan.



     VI. INSURANCE; CASUALTY; CONDEMNATION; REQUIRED REPAIRS



     Section 6.1 Insurance. 



     (a) Borrower shall obtain and maintain, or cause to be maintained,
insurance for Borrower and the Properties 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 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, but the amount shall in no event be less than the
Release Amount applicable to the Individual Property; (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 $25,000; (D) containing an “Ordinance or Law
Coverage” or “Enforcement” endorsement if any of the Improvements or the
use of the Individual



69









 






Property shall at any time constitute legal
non-conforming structures or uses; (E) providing coverage for the peril
of Sprinkler Leakage; and (F) providing Comprehensive Plate Glass
Insurance. 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 Release Amount applicable to
the Individual Property 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 Individual 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 Individual Property, such insurance (A) to be on the
so-called “occurrence” form with a limit, per occurrence, of not less
than One Million and No/100 Dollars ($1,000,000) and an aggregate limit
of Two Million and No/100 Dollars ($2,000,000); (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 10 of the Security Instruments to the
extent the same is available;




     (iii) business interruption/loss of rents 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) in an amount equal to
100% of the projected gross income from each Individual Property (on an
actual loss sustained basis) for a period of twelve (12) months; the
amount of such business interruption/loss of rents insurance shall be
determined prior to the Closing Date and at least once each year
thereafter based on the greatest of: (x) Borrower’s reasonable estimate
of the gross income from each Individual Property and (y) the highest
gross income received during the term of the Note for any full calendar
year prior to the date the amount of such insurance is being determined,
in each case for the succeeding twelve (12) month period and (D)
containing an extended
period of indemnity endorsement which provides that after the
physical loss to the Improvements and the 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 twelve (12) months from the date that the applicable
Individual 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; All insurance proceeds payable to Lender
pursuant to this subsection shall be held by Lender and shall be applied
to the obligations secured hereunder from time to time due and payable
hereunder and under the Note and this Agreement; provided, however, that
nothing herein contained shall be deemed to relieve Borrower of its
obligations to pay the obligations secured hereunder on the respective
dates of payment provided for in the Note and this



70









 






Agreement except to
the extent such amounts are actually paid out of the proceeds of such
business interruption/loss of rents insurance;




     (iv) at all times during which structural construction, repairs or
alterations are being made with respect to the Improvements, and only if
the Individual 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 Individual Property, and (4) with an agreed
amount endorsement waiving co-insurance provisions;




     (v) workers’ compensation, subject to the statutory limits of the
State in which each Individual Property is located, and employer’s
liability insurance with a limit of at least $1,000,000 per accident and
per disease per employee, and $1,000,000 for disease aggregate in respect
of any work or operations on or about the Individual Property, or in
connection with the Individual Property or its operation (if applicable);




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




     (vii) umbrella liability insurance in an amount not less than
$25,000,000 per occurrence and $25,000,000 in the aggregate on terms
consistent with the commercial general liability insurance policy
required under subsection (ii) above;




     (viii) motor vehicle liability coverage for all owned and non-owned
vehicles, including rented and leased vehicles containing minimum limits
per occurrence, including umbrella coverage, of not less than $1,000,000;




     (ix) [intentionally deleted];




     (x) [intentionally deleted];




     (xi) [intentionally deleted]; and




     (xii) 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 Individual
Property located in or around the region in which the Individual Property
is located.



     (b) No Policy shall contain an exclusion from coverage under such Policy
for loss or damage incurred as a result of an act of terrorism (including
bio-terrorism) or similar acts of sabotage. If a Policy contains such
exclusion, Borrower shall obtain a separate Policy providing coverage for loss
or damage incurred as a result of an act of terrorism (including bio-terrorism)



71









 




or similar acts of sabotage if such coverage is commercially available at
commercially reasonable rates.




     (c) All insurance provided for in Section 6.1(a) hereof 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 in which each
Individual Property is located and approved by Lender. The insurance companies
must have a claims paying ability/financial strength rating of “A” (or its
equivalent) or better by at least two (2) of the Rating Agencies (one of which
shall be S&P). 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.



     (d) Borrower shall not obtain (i) any umbrella or blanket liability or
casualty Policy unless, in each case, such Policy is approved in advance in
writing by Lender and Lender’s interest is included therein as provided in this
Agreement and such Policy is issued by a Qualified Insurer, or (ii) separate
insurance concurrent in form or contributing in the event of loss with that
required in Section 6.1(a) hereof to be furnished by, or which may be
reasonably required to be furnished by, Borrower. In the event Borrower
obtains separate insurance or an umbrella or a blanket policy, Borrower shall
notify Lender of the same and shall cause certified copies of each Policy to be
delivered as required in Section 6.1(a) hereof. Any blanket insurance Policy
shall specifically allocate to the Individual 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 Individual Property in
compliance with the provisions of Section 6.1(a) hereof. Notwithstanding
Lender’s approval of any umbrella or blanket liability or casualty Policy
hereunder, Lender reserves the right, in its sole discretion, to require
Borrower to obtain a separate Policy in compliance with this Section 6.1.



     (e) All Policies provided for or contemplated by Section 6.1(a) hereof,
except for the Policy referenced in Section 6.1(a)(v), shall name Borrower and
Lender as the insured or additional insured, as their respective 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.



     (f) All Policies provided for in Section 6.1(a)(v) hereof 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;



72









 






     (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) each Policy shall provide that the issuers thereof shall give
written notice to Lender if the Policy has not been renewed thirty (30)
days prior to its expiration; and




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



     (g) If at any time Lender is not in receipt of written evidence that all
insurance required hereunder is in full force and effect, Lender shall have the
right, without notice to Borrower, to take such action as Lender deems
necessary to protect its interest in the Properties, 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 Security Instruments and shall bear interest at the Default Rate.



     (h) Borrower shall furnish to Lender, on or before thirty (30) days after
the close of each of Borrower’s fiscal years, a statement certified by Borrower
or a duly authorized officer of Borrower of the amounts of insurance maintained
in compliance herewith, of the risks covered by such insurance and of the
insurance company or companies which carry such insurance and, if requested by
Lender, verification of the adequacy of such insurance by an independent
insurance broker or appraiser acceptable to Lender.



     Section 6.2 Casualty. If the Individual Property shall be damaged
or destroyed, in whole or in part, by fire or other casualty (a
“Casualty”), Borrower shall give prompt notice of such damage to Lender
and shall promptly commence and diligently prosecute the completion of the
repair and restoration of the Individual Property as nearly as possible to the
condition the Individual Property was in immediately prior to such Casualty,
with such alterations as may be reasonably approved by Lender (a
“Restoration”) and otherwise in accordance with Section 6.4 hereof.
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 all or any part of any Individual 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



73









 




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 any Individual
Property or any portion thereof is taken by a condemning authority, Borrower
shall promptly commence and diligently prosecute the Restoration of the
applicable Individual Property and otherwise comply with the provisions of
Section 6.4 hereof. If any Individual 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 Properties:



     (a) If the Net Proceeds shall be less than Four Million and 00/100 Dollars
($4,000,000) (on an aggregate basis for all of the Properties affected by a
Casualty or Condemnation) and the costs of completing the Restoration shall be
less than Four Million and 00/100 Dollars ($4,000,000) (on an aggregate basis
for all of the Properties affected by a Casualty or Condemnation), the Net
Proceeds will be disbursed by Lender to Borrower upon receipt, provided that
all of the conditions set forth in Section 6.4(b)(i) are met and Borrower
delivers to Lender a written undertaking to expeditiously commence and to
satisfactorily complete with due diligence the Restoration in accordance with
the terms of this Agreement.



     (b) If the Net Proceeds are equal to or greater than Four Million and
00/100 Dollars ($4,000,000) (on an aggregate basis for all of the Properties
affected by a Casualty or Condemnation) or the costs of completing the
Restoration is equal to or greater than Four Million and 00/100 Dollars
($4,000,000) (on an aggregate basis for all of the Properties affected by a
Casualty or Condemnation), Lender shall make the Net Proceeds available for the
Restoration in accordance with the provisions of this Section 6.4. The term
“Net Proceeds” shall mean: (i) the net amount of all insurance proceeds
received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi) and (vii) 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 (ii) 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, less than
twenty-five percent (25%) of the total aggregate floor area of the Improvements
on the Properties has been damaged, destroyed or rendered unusable as a result
of such Casualty or (2) in the event the Net Proceeds are Condemnation
Proceeds, less than ten percent (10%) of the land constituting the Properties
is taken, and such land is located along the perimeter or periphery of the
Properties affected by such Condemnation, and no portion of the Improvements is
located on such land;



74









 





          (C) Intentionally Deleted;



          (D) Borrower shall commence the Restoration as soon as reasonably
practicable (but in no event later than sixty (60) days after such Casualty or
Condemnation, whichever the case may be, occurs) and shall diligently pursue
the same to satisfactory completion in accordance with all applicable laws,
including, without limitation, all applicable Environmental Laws;



          (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 Properties as a result of the occurrence of any
such Casualty or Condemnation, 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) hereof, 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) six (6) months prior to the Maturity Date,
(2) six (6) months after the occurrence of such Casualty or Condemnation, (3)
the earliest date required for such completion under the terms of any Leases,
if any, which are required in accordance with the provisions of this Section
6.4(b) to remain in effect subsequent to the occurrence of such Casualty or
Condemnation and the completion of the Restoration, (4) such time as may be
required under applicable zoning law, ordinance, rule or regulation, in order
to repair and restore the Properties affected by such Casualty or Condemnation
to the condition they were in immediately prior to such Casualty or
Condemnation or (5) the expiration of the insurance coverage referred to in
Section 6.1(a)(iii) hereof;



          (G) the Properties affected by such Casualty or Condemnation and the use
thereof after the Restoration will be in compliance with and permitted under
all applicable zoning laws, ordinances, rules and regulations;



          (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); and



          (I) such Casualty or Condemnation, as applicable, does not result in the
total loss of access to the Properties affected by such Casualty or
Condemnation or the related Improvements.



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



          (K) 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, or, if not sufficient, Borrower shall deposit the
deficiency with Lender; and



          (L) the Management Agreement in effect as of the date of the occurrence of
such Casualty or Condemnation, whichever the case may be, shall (1) remain in
full force and effect during the Restoration and shall not otherwise terminate
as a result of the Casualty or



75









 




Condemnation or the Restoration or (2) if
terminated, shall have been replaced with a Replacement Management Agreement
with a Qualifying Manager, prior to the opening or reopening of the Properties
affected by such Casualty or
Condemnation or any portion thereof for business
with the public.





     (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 (except to
the extent that they are to be paid for out of the requested
disbursement) in connection with the Restoration have been paid for
in full, 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 Individual 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, the cost of which is greater than $100,000, 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”). 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, the cost of which is greater than $100,000, 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. 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 provisions of
this Section 6.4(b) and that all approvals necessary for the
re-occupancy and



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use of the Individual Property have been obtained
from all appropriate 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 for the related
Individual Property, and Lender receives an endorsement to such
Title Insurance Policy insuring the continued priority of the lien
of the related Security Instrument 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 opinion of Lender in consultation
with the Casualty Consultant, if any, 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



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such order, priority and
proportions as Lender in its sole discretion shall deem proper, 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. If
Lender shall receive and retain Net Proceeds, the Lien of the Security
Instruments shall be reduced only by the amount thereof received and retained
by Lender and actually applied by Lender in reduction of the Debt.




     (d) In the event of foreclosure of the Security Instrument with respect to
the Individual Property, or other transfer of title to the Individual 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 Individual 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) The provisions of subsection 4 of Section 254 of the New York Real
Property Law covering the insurance of buildings against loss by fire shall not
apply to this Agreement. In the event of any conflict, inconsistency or
ambiguity between the provisions of Section 6.4 hereof and the provisions of
subsection 4 of Section 254 of the New York Real Property Law covering the
insurance of buildings against loss by fire, the provisions of Section 6.4
hereof shall control.



     VII. RESERVE FUNDS



     Section 7.1
Required Repair Funds.



     7.1.1 Deposits.



     On the Closing Date, Borrower shall deposit with Lender the amount for
each Individual Property set forth on Schedule 7.1.1 attached hereto to
perform the Required
Repairs for such Individual Property. Amounts so deposited with Lender
shall be held by Lender in accordance with Section 7.6 hereof. Amounts so
deposited shall hereinafter be referred to as Borrower’s “Required Repair
Fund.” Borrower shall perform the repairs at the Properties, as more
particularly set forth on Schedule 7.1.1 attached hereto (such repairs
hereinafter referred to as “Required Repairs”). Borrower shall complete
the Required Repairs on or before the required deadline for each repair as set
forth on Schedule 7.1.1 attached hereto. It shall be an Event of
Default under this Agreement if (a) Borrower does not complete the Required
Repairs at each Individual Property by the required deadline for each repair as
set forth on Schedule 7.1.1 attached hereto, or (b) Borrower does not
satisfy each condition contained in Section 7.1.2 hereof. Upon the occurrence
of 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 one or more of the Properties 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.



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          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: (a) Borrower shall submit a written request for
payment to Lender at least thirty (30) days prior to the date on which Borrower
requests such payment be made and specifies the Required Repairs to be paid,
(b) 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,
(c) Lender shall have received an Officer’s Certificate (i) stating that all
Required Repairs at the applicable Individual Property to be funded by the
requested disbursement have been completed in good and workmanlike manner and,
to the best of Borrower’s knowledge, in accordance with all Legal Requirements
and Environmental Laws, 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, (ii) identifying each Person
that supplied materials or labor in connection with the Required Repairs
performed at such Individual Property with respect to the reimbursement to be
funded by the requested disbursement, and (iii) stating that each such Person
has been paid in full upon such disbursement, such Officer’s Certificate to be
accompanied by lien waivers or other evidence of payment satisfactory to
Lender, (d) at Lender’s option, a title search for such Individual Property
indicating that such Individual Property is free from all Liens, claims and
other encumbrances not previously approved by Lender, and (e) Lender shall have
received such other evidence as Lender shall reasonably request that the
Required Repairs at such Individual Property to be funded by the requested
disbursement have been completed and are paid for upon such disbursement to
Borrower. Lender shall not be required to make disbursements from the Required
Repair Account with respect to any Individual Property unless such requested
disbursement is in an amount greater than $25,000 (or a lesser amount if the
total amount in the Required Repair Account is less than $25,000, in which case
only one disbursement of the amount remaining in the account shall be made).
Lender shall not be obligated to make disbursements from the Required Repair
Account with respect to an Individual Property in excess of the amount
allocated for such Individual Property as set forth on Schedule 7.1.1
attached hereto. Upon the earlier of (1)
Borrower’s completion of all Required Repairs to the satisfaction of
Lender (provided Borrower has supplied Lender with evidence satisfactory to
Lender of payment of all Required Repairs applicable to such Individual
Property and, if requested by Lender, waivers of liens and/or, in the case of
Required Repairs greater than $100,000.00, a title search of the Property or an
endorsement to the mortgagee’s title insurance policy), (2) payment in full by
Borrower of all sums evidenced by the Note and secured by the Security
Instruments and release by Lender of the lien of the Security Instruments, or
(3) release of such Individual Property in accordance with the provisions of
Section 2.5 hereof, Lender shall disburse to Borrower all remaining Required
Repair Funds allocated to such Individual Property as set forth on Schedule
7.1.1 attached hereto.



     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) at
the option of Lender, if the liability or casualty Policy maintained by
Borrower covering the Properties shall not constitute an approved blanket or
umbrella Policy pursuant to Section 6.1(c) hereof, or Lender shall require
Borrower to obtain a



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separate Policy pursuant to Section 6.1(c) hereof, an
amount equal to 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 hereinafter
called the “Tax and Insurance Escrow Fund”). In the event Lender shall
elect to collect payments in escrow for Insurance Premiums pursuant to clause
(b) above, Borrower shall pay to Lender an initial deposit to be determined by
Lender, in its sole discretion, to increase the amounts in the Tax and
Insurance Escrow Fund to an amount which, together with anticipated monthly
deposits for the payment of Insurance Premiums, shall be sufficient to pay all
Insurance Premiums as they become due. The Tax and Insurance Escrow 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
Sections 5.1.2 and 6.1 hereof, respectively. 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), without
inquiry into the accuracy of such bill, statement or estimate or into the
validity of any tax, assessment, sale, forfeiture, tax lien or title or claim
thereof. If the amount of the Tax and Insurance Escrow Fund shall exceed the
amounts due for Taxes and Insurance Premiums pursuant to Sections 5.1.2 and 6.1
hereof, respectively, 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. 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 Properties. If at any time Lender
reasonably determines that the Tax and Insurance Escrow Fund is not or will not
be sufficient to pay Taxes and Insurance Premiums by the dates set forth in (a)
and (b) above,
Lender shall notify Borrower of such determination and Borrower shall
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 and/or thirty (30) days prior to expiration of the
Policies, as the case may be. Any amount held in the Tax and Insurance Escrow
Fund and allocated for an Individual Property shall be retained by Lender and
credited toward the future payments of Taxes and Insurance Premiums required by
Lender hereunder in the event such Individual Property is released from the
Lien of its related Security Instrument in accordance with Section 2.5 hereof.



     Section 7.3 Replacements and Replacement Reserve.



     7.3.1 Replacement Reserve Fund. Borrower shall pay to Lender on
each Payment Date the Replacement Reserve Monthly Deposit for replacements and
repairs required to be made to the Properties during the calendar year
(collectively, the “Replacements”). Amounts so deposited shall
hereinafter be referred to as Borrower’s “Replacement Reserve Fund” and
the 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



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Borrower if Lender
determines in its reasonable discretion that an increase is necessary to
maintain the proper maintenance and operation of the Properties. Any amount
held in the Replacement Reserve Account and allocated for an Individual
Property shall be retained by Lender and credited toward the future Replacement
Reserve Monthly Deposits required by Lender hereunder in the event such
Individual Property is released from the Lien of its related Security
Instrument in accordance with Section 2.5 hereof.




     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 an Individual Property or for costs which
are to be reimbursed from the Required Repair Fund. Lender shall not be
obligated to make disbursements from the Replacement Reserve Account with
respect to an Individual Property in excess of the amount allocated for such
Individual Property as set forth on Schedule 7.3.2 attached hereto.



     (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(e)) 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
Borrower shall certify that, to the best of Borrower’s knowledge, all
Replacements have been made in accordance with all applicable Legal
Requirements of any Governmental Authority having jurisdiction over the
applicable Individual Property to which the Replacements are being provided.
Each request for disbursement shall include copies of invoices for all items or
materials purchased and all contracted labor or services provided and, unless
Lender has agreed to issue joint checks as described below in connection with a
particular Replacement, each request shall include evidence satisfactory to
Lender of payment of all such amounts. Except as provided in Section 7.3.2(e)
hereof, 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



81









 




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 $25,000 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 applicable Individual
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 $50,000, (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 applicable Individual Property and are properly secured or have
been installed in such Individual Property, (C) all other conditions in this
Section 7.3 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 $50,000.



     7.3.3 Performance of Replacements. (a) Borrower shall make
Replacements when required in order to keep each Individual Property in
condition and repair consistent with other properties in the same market
segment in the metropolitan area in which the respective Individual Property is
located (but at all times consistent with the standards of other “U-Store-It”
properties, irrespective of whether such Individual Property is currently
operated as a “U-Store-It” self-service storage facility), and to keep each
Individual 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.



     (b) Lender reserves the right, at its option, to approve all contracts or
work orders with materialmen, mechanics, suppliers, subcontractors, contractors
or other parties providing labor or materials in connection with the
Replacements costing, in the aggregate, in excess of $50,000 with respect to
each Individual Property. Upon Lender’s request, Borrower shall assign any
contract or subcontract to Lender.



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     (c) 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,
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.



     (d) 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 any Individual Property and perform any and all work and
labor necessary to complete or make the Replacements and/or employ watchmen to
protect such Individual Property from damage. 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 Security
Instruments. 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.
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
any Individual 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 any Individual Property or the rehabilitation and repair
of any Individual Property; and (vii) to do any and every act which Borrower
might do in its own behalf to fulfill the terms of this Agreement.



     (e) 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 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.



     (f) 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
each Individual 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 each
Individual 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.



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     (g) Lender may require an inspection of the Individual Property at
Borrower’s expense prior to making a monthly disbursement from the Replacement
Reserve Account in order to verify completion of the Replacements for which
reimbursement in excess of $10,000 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 reasonable expense of the inspection as required hereunder,
whether such inspection is conducted by Lender or by an independent qualified
professional.



     (h) 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).



     (i) Before each disbursement from the Replacement Reserve Account, Lender
may require Borrower to provide Lender with a search of title to the applicable
Individual 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 applicable Individual Property since the date of
recordation of the related Security Instrument and that title to such
Individual Property is free and clear of all Liens (other than the lien of the
related Security Instrument and any other Liens previously approved in writing
by Lender, if any).



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



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



     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. 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 any Individual
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.



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     (b) 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.



     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 7.4 Ground Lease Escrow Fund.



          Borrower shall pay to Lender on each Payment Date, an amount (the
“Monthly Ground Rent Deposit”) that is estimated by Lender to be due and
payable by Borrower under the Ground Lease for all Ground Rent which may be due
by Borrower under the Ground Lease in order to accumulate with Lender
sufficient funds to pay all sums payable under the Ground Lease at least ten
(10) Business Days prior to the next date such Ground Rents are due and payable
(said amounts, hereinafter called the “Ground Lease Escrow Fund”). The
Ground Lease Escrow Fund is for the purpose of paying all sums due under the
Ground Lease. Upon Borrower’s failure to pay any Ground Rents after the
receipt of any notice and at least ten (10) days prior to the expiration of any
cure period available to Borrower pursuant to the Ground Lease, Lender may, in
its discretion, apply any amounts held in the Ground Lease Escrow Fund to the
payment of such Ground Rent; provided however, that the provisions of this
Section 7.4 shall not be deemed to create any obligation on the part of Lender
to pay any such Ground Rent from amounts on deposit in the Ground Lease Escrow
Fund. Such deposit may be increased by Lender in the amount Lender deems is
necessary in its reasonable discretion based on any increases in the Ground
Rent due under the Ground Lease.



          Section 7.5 Leasing Reserve Fund.



     7.5.1 Deposits to Leasing Reserve Fund. All Lease Termination
Payments shall be deposited in the Leasing Reserve Account with and held by
Lender for tenant improvement and leasing commission obligations incurred in
connection with the re-leasing of the space demised under the related Lease.
Amounts so deposited shall hereinafter be referred to as the “Leasing Reserve
Fund”.



     7.5.2 Withdrawals of Leasing Reserve Funds. Lender shall make
disbursements from the Leasing Reserve Fund for tenant improvement and leasing
commission obligations incurred by Borrower in connection with the re-leasing
of the space demised under the related Lease. All such expenses shall be
approved by Lender in its sole discretion. Lender shall make disbursements as
requested by Borrower on a monthly basis in increments of no less than
$50,000.00 upon delivery by Borrower of Lender’s standard form of draw request
accompanied by copies of paid invoices for the amounts requested and, if
required by Lender, lien waivers and releases from all parties furnishing
materials and/or services in connection with the requested payment. Lender may
require an inspection of the applicable Individual Property at Borrower’s
expense prior to making a quarterly disbursement in order to verify completion
of improvements for which reimbursement is sought. All earnings or interest on
the Leasing Reserve Fund shall be and become part of such Leasing Reserve Fund
and shall be disbursed as provided in this Section 7.5.



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     Section 7.6 Reserve Funds, Generally.



     (a) 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.



     (b) 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.



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



     (d) The Reserve Funds shall be held in interest bearing accounts and all
earnings or interest on a Reserve Fund shall be added to and become a part of
such Reserve Fund and shall be disbursed in the same manner as other monies
deposited in such Reserve Fund.



     (e) 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.



     (f) Lender shall not be liable for any loss sustained on the investment of
any funds constituting the Replacement Reserve Fund.



     (g) 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 Reserve Funds or the related Accounts or the performance of the
obligations for which the Reserve Funds or the related Accounts were
established, except to the extent arising from the gross negligence or willful
misconduct of Lender, its agents or employees or arising from the failure of
Lender to disburse funds from the Reserve Funds or related Accounts when
required to do so hereunder. Borrower shall assign to Lender all rights and
claims Borrower may have against all Persons supplying labor, materials or
other services which are to be paid from or secured by the Reserve Funds or the
related Accounts; provided, however, that Lender may not pursue any such right
or claim unless an Event of Default has occurred and remains uncured.



     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”):



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     (i) if any portion of the Debt is not paid on or prior to the date
when due and payable;




     (ii) if any of the Taxes or Other Charges are not paid on or prior
to the date when the same are due and payable;




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




     (iv) if Borrower transfers or encumbers any portion of the
Properties without Lender’s prior written consent or otherwise violates
the provisions of Section 5.2.13 hereof or Article 7 of any Security
Instrument;




     (v) if any representation or warranty made by Borrower, the SPC
Party or Guarantor 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 misleading in
any material respect as of the date the representation or warranty was
made;




     (vi) if Borrower, the SPC Party, Guarantor or any other guarantor
under any guaranty 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, the SPC Party, Guarantor or any other guarantor under any
guaranty issued in connection with the Loan or if Borrower, the SPC
Party, Guarantor or such other guarantor shall be adjudicated a bankrupt
or insolvent, or if any petition for bankruptcy, reorganization or
arrangement pursuant to the Bankruptcy Code, or any similar Federal or
State law, shall
be filed by or against, consented to, or acquiesced in by, Borrower,
the SPC Party, Guarantor or such other guarantor, or if any proceeding
for the dissolution or liquidation of Borrower, the SPC Party, Guarantor
or such other guarantor shall be instituted; provided, however, if such
appointment, adjudication, petition or proceeding was involuntary and not
consented to by Borrower, the SPC Party, Guarantor or such other
guarantor, upon the same not being discharged, stayed or dismissed within
sixty (60) 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;



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     (xi) if any of the assumptions contained in the Insolvency Opinion,
or in any other “non-consolidation” opinion delivered to Lender in
connection with the Loan, or in any other “non-consolidation” delivered
subsequent to the closing of the Loan, is or shall become untrue in any
material respect;




     (xii) if Borrower violates or does not comply with any of the
provisions of Section 5.1.20 hereof;




     (xiii) if a default has occurred and continues beyond any applicable
cure period under the Management Agreement (or any Replacement Management
Agreement) if such default permits the Manager thereunder to terminate or
cancel the Management Agreement (or any Replacement Management Agreement)
unless in such case Borrower shall enter into a Replacement Management
Agreement in accordance with the terms hereof;




     (xiv) if any Individual Property becomes subject to any mechanic’s,
materialman’s or other Lien other than a Lien for local real estate taxes
and assessments not then due and payable and the Lien shall remain
undischarged of record (by payment, bonding or otherwise) for a period of
thirty (30) days;




     (xv) if any Federal tax Lien or State or local income tax Lien is
filed against Borrower, SPC Party, any Guarantor or any Individual
Property and same is not discharged of record within thirty (30) days
after same is filed;




     (xvi) (A) Borrower fails to timely provide Lender with the written
certification and evidence referred to in Section 5.2.12 hereof, (B)
Borrower is a Plan or its assets constitute Plan Asset; or (C) Borrower
consummates a transaction which would cause the Security Instruments or
Lender’s exercise of its rights under the Security Instruments, the
Note, this Agreement or the other Loan Documents to constitute a
nonexempt prohibited transaction under ERISA or result in a violation of
a State statute regulating governmental plans, subjecting Lender to
liability for a violation of ERISA, the Code, a State statute or other
similar law;




     (xvii) if Borrower shall fail to deliver to Lender, within ten (10)
days after request by Lender, the estoppel certificates required pursuant
to the terms of Section 5.1.15(a) hereof;




     (xviii) if any default occurs under any guaranty or indemnity
executed in connection herewith (including, without limitation, the
Guaranty and the Environmental Indemnity) and such default continues
after the expiration of applicable grace periods, if any;




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



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     (xx) if Borrower operates any Individual Property (other than the
Properties set forth on Schedule 4.1.31 attached hereto) under the
name other than “U-Store-It”, without Lender’s prior written consent;




     (xxi) if Borrower shall fail to pay the Ground Rent or any
additional rent or other charge mentioned in or made payable by any
Ground Lease when said rent or other charge is due and payable (except to
the extent that sufficient funds have been deposited with Lender to
satisfy such obligations on the date each such payment is required and
Lender is not prohibited from withdrawing or applying such funds by Legal
Requirements or otherwise);




     (xxii) if there shall occur any default by Borrower, as tenant under
any Ground Lease, in the observance or performance of any term, covenant
or condition of such Ground Lease on the part of Borrower to be observed
or performed and said default is not cured following the expiration of
any applicable grace and notice periods therein provided, or if the
leasehold estate created by such Ground Lease shall be surrendered or if
such Ground Lease shall cease to be in full force and effect or such
Ground Lease shall be terminated or canceled for any reason or under any
circumstances whatsoever, or if any of the terms, covenants or conditions
of such Ground Lease shall in any manner be modified, changed,
supplemented, altered, or amended without the consent of Lender;




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




     (xxiv) 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 (xxiii)
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 thirty
(30) day period and provided further that Borrower shall have commenced
to cure such Default within such thirty (30) day period and thereafter
diligently and expeditiously proceeds to cure the same, such thirty (30)
day period shall be extended for such time as is reasonably necessary for
Borrower in the exercise of due diligence to cure such Default, such
additional period not to exceed sixty (60) days.



     (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, 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 and to all
or any Individual 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 any or all of the Properties, including, without limitation, all



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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 all or any Individual 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 Properties and each Security Instrument has been foreclosed, sold and/or
otherwise realized upon in satisfaction of the Debt or the Debt has been paid
in full.



     (b) With respect to Borrower and the Properties, nothing contained herein
or in any other Loan Document shall be construed as requiring Lender to resort
to any Individual Property
for the satisfaction of any of the Debt in preference or priority to any
other Individual Property, and Lender may seek satisfaction out of all of the
Properties or any part thereof, in its absolute discretion in respect of the
Debt. In addition, Lender shall have the right from time to time to partially
foreclose the Security Instruments in any manner and for any amounts secured by
the Security Instruments 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 one or more of the Security Instruments 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 one or more of
the Security Instruments to recover so much of the principal balance of the
Loan as Lender may accelerate and such other sums secured by one or more of the
Security Instruments as Lender may elect. Notwithstanding one or more partial
foreclosures, the Properties shall remain subject to the Security Instruments
to secure payment of the Debt 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



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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 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. Except as may be required in connection with a
Securitization pursuant to Section 9.1 hereof, (i) 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
(ii) 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.




     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 singularly, concurrently or otherwise, at
such time and in such order as Lender may determine in Lender’s sole
discretion. No delay or omission to exercise any remedy, right or power
accruing upon an Event of Default shall impair any such remedy, right or power
or shall be construed as a waiver thereof, but any such remedy, right or power
may be exercised from time to time and as often as may be deemed expedient. A
waiver of one Default or Event of Default with respect to
Borrower shall not be construed to be a waiver of any subsequent Default
or Event of Default by Borrower or to impair any remedy, right or power
consequent thereon.



     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 use
reasonable efforts 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”) of rated single or multi-class
securities (the “Securities”) secured by or evidencing ownership
interests in the Note and the Security Instruments, including, without
limitation, to:




	 	(a)	 	(i) provide such financial and other information
with respect to the Properties, Borrower, Guarantor and the
Manager, (ii) provide budgets




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	 	 	 	relating to the Properties and
(iii) at Lender’s cost, 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 Properties, 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)	 	if required by the Rating Agencies, deliver (i) a
revised Insolvency Opinion, (ii) revised or additional
opinions of counsel as to due execution and enforceability
with respect to the Properties, Borrower, any Guarantor and
Manager and their respective Affiliates and the Loan
Documents, and (iii) revised organizational documents for
Borrower, any Guarantor and Manager and their respective
Affiliates (including without limitation, such revisions as
are necessary to comply with the provisions of Section 4.1.30
hereof, and if required by any Rating Agency, amend such
organizational documents to require that there shall be two
(2) Independent Directors serving in such capacity at all
times), which counsel, opinions, and organizational documents
shall be satisfactory to Lender and the Rating Agencies;
	 
	 	(c)	 	make such representations and warranties as of
the closing date of the Securitization with respect to the
Properties, Borrower, Guarantor, Manager and the Loan
Documents as are customarily provided in
securitization transactions and as may be reasonably
requested by the holder of the Note or the Rating Agencies
and consistent with the facts covered by such representations
and warranties as they exist on the date thereof, including
the representations and warranties made in the Loan
Documents;
	 
	 	(d)	 	execute such amendments to the Loan Documents and
Borrower’s organizational documents as may be requested by the
holder of the Note or the Rating Agencies or otherwise to
effect the Securitization including (i) bifurcating the Note
into two or more notes and splitting the Security Instrument
into two mortgages, including a first priority mortgage or
otherwise as determined by and acceptable to Lender or (ii)
dividing the Note into multiple components corresponding to
tranches of certificates to be issued in a Securitization each
having a notional balance and an interest rate determined by
Lender; provided, however, that Borrower shall not be required
to modify or amend any Loan Document if the overall effect of
such modification or amendment would (i) change the interest
rate, the stated maturity (as the same may be extended
pursuant to this Agreement) or the amortization of principal
set forth in the Note, or (ii) modify or amend any other
material economic term of the Loan;




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	 	(e)	 	if Lender elects, in its sole discretion, prior
to or upon a Securitization, to split the Loan into two or
more parts, or the Note into multiple component notes or
tranches which may have different interest rates, amortization
payments, principal amounts and maturities, Borrower agrees to
cooperate with Lender in connection with the foregoing and to
execute the required modifications and amendments to the Note,
this Agreement and the Loan Documents and to provide opinions
necessary to effectuate the same. Such Notes or components
may be assigned different interest rates, so long as the
initial weighted average of such interest rates does not
exceed the Applicable Interest Rate ;and
	 
	 	(f)	 	supply to Lender such documentation, financial
statements and reports in form and substance required for
Lender to comply with the Federal securities law, if
applicable.





          All reasonable third party costs and expenses incurred by Lender or
Borrower in connection with Borrower’s complying with requests made under this
Section 9.1 shall be paid by Lender (other than the fees and expenses of
Borrower’s counsel).



     Section 9.2 Securitization Indemnification. 



     (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, private
placement memorandum, offering circular or other offering document (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.



     (b) Borrower agrees to provide in connection with each of (i) a
preliminary and a final private placement memorandum, (ii) a preliminary and
final prospectus or prospectus supplement, as applicable, or (iii) collateral
and structured term sheets or similar materials, an indemnification certificate
(A) certifying that Borrower has carefully examined such memorandum, prospectus
or term sheets, as applicable, including without limitation, the sections
entitled “Special Considerations,” “Description of the Mortgages,” “Description
of the Mortgage Loans and Mortgaged Property,” “The Manager,” “The Borrower”
and “Certain Legal Aspects of the Mortgage Loan,” and such sections (and any
other sections reasonably requested) 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, (B) indemnifying Lender (and for purposes of this Section 9.2,
Lender hereunder shall include its officers and directors), the Affiliate of
Lehman Brothers Inc. (“Lehman”) that



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has filed the registration
statement relating to the Securitization (the “Registration Statement”),
each of its directors, each of its officers who have signed the Registration
Statement and each Person or entity who controls the Affiliate within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
(collectively, the “Lehman Group”), and Lehman, each of its directors
and each Person who controls Lehman within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act (collectively, the
“Underwriter Group”) for any losses, claims, damages or liabilities
(collectively, the “Liabilities”) to which Lender, the Lehman Group or
the Underwriter Group 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 such sections described in clause (A) above, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated in such sections or necessary in
order to make the statements in such sections or in light of the circumstances
under which they were made, not misleading and (C) agreeing to reimburse
Lender, the Lehman Group and the Underwriter Group for any legal or other
expenses reasonably incurred by Lender and Lehman in connection with
investigating or defending the Liabilities; provided, however, that Borrower
will be liable in any such case under clauses (B) or (C) above only to the
extent that any such Liability arises out of or is based upon any such untrue
statement or omission made therein in reliance upon and in conformity with
information furnished to Lender by or on behalf of Borrower in connection with
the preparation of the memorandum or prospectus or in connection with the
underwriting of the debt, including, without limitation, financial statements
of Borrower, operating statements, rent rolls, environmental site assessment
reports and property condition reports with respect to the Properties. This
indemnification will be in addition to any liability which Borrower may
otherwise have. Moreover, the indemnification provided for in clauses (B) and
(C) above shall be effective whether or not an indemnification certificate
described in (A) above is provided and
shall be applicable based on information previously provided by Borrower
or its Affiliates if Borrower does not provide the indemnification certificate.




     (c) In connection with filings under the Exchange Act, Borrower agrees to
indemnify (i) Lender, the Lehman Group and the Underwriter Group for
Liabilities to which Lender, the Lehman Group or the Underwriter Group may
become subject insofar as the Liabilities arise out of or are based upon the
omission or alleged omission to state in the Provided Information a material
fact required to be stated in the Provided Information in order to make the
statements in the Provided Information, in light of the circumstances under
which they were made not misleading and (ii) reimburse Lender, the Lehman Group
or the Underwriter Group for any legal or other expenses reasonably incurred by
Lender, the Lehman Group or the Underwriter Group in connection with defending
or investigating the Liabilities.



     (d) Promptly after receipt by an indemnified party under this Section 9.2
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 9.2, notify the indemnifying party in writing of the commencement
thereof, but the omission to so notify the indemnifying party will not relieve
the indemnifying party from any liability which the indemnifying party may have
to any indemnified party hereunder except to the extent that failure to notify
causes prejudice to the indemnifying party. In the event that any action is
brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled, jointly
with any other indemnifying party, to participate therein and, to the extent
that it



94









 




(or they) may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof with counsel satisfactory to such
indemnified party. After notice from the indemnifying party to such
indemnified party under this Section 9.2 the indemnifying party shall not be
responsible for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there are any legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. The indemnifying party
shall not be liable for the expenses of more than one such separate counsel
unless an indemnified party shall have reasonably concluded that there may be
legal defenses available to it that are different from or additional to those
available to another indemnified party.




     (e) In order to provide for just and equitable contribution in
circumstances in which the indemnifications provided for in Section 9.2(b) or
(c) is or are for any reason held to be unenforceable by an indemnified party
in respect of any Liabilities (or action in respect thereof) referred to
therein which would otherwise be indemnifiable under Section 9.2(b) or (c), the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such Liabilities (or action in respect
thereof); provided, however, that no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. In determining the amount of contribution to
which the respective parties are
entitled, the following factors shall be considered: (i) Lehman’s and
Borrower’s relative knowledge and access to information concerning the matter
with respect to which claim was asserted; (ii) the opportunity to correct and
prevent any statement or omission; and (iii) any other equitable considerations
appropriate in the circumstances. Lender and Borrower hereby agree that it
would not be equitable if the amount of such contribution were determined by
pro rata or per capita allocation.



     (f) The liabilities and obligations of both Borrower and Lender under this
Section 9.2 shall survive the termination of this Agreement and the
satisfaction and discharge of the Debt.



     Section 9.3 Intentionally Deleted. 



     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 Security Instruments or the other
Loan Documents by any action or proceeding wherein a money judgment shall be
sought against Borrower or any of its partners or members 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 Security Instruments and the
other Loan Documents, or in the Properties, the Rents, or any other collateral
given to Lender pursuant to the Loan



95









 




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 Properties, in the Rents and in any other collateral given to Lender,
and Lender, by accepting the Note, this Agreement, the Security Instruments 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
Security Instruments 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 Security Instruments; (c) affect the
validity or enforceability of any indemnity (including, without limitation, the
Environmental Indemnity), guaranty (including, without limitation, the
Guaranty), master lease or similar instrument made in connection with the Loan
Documents; (d) impair the right of Lender to obtain the appointment of a
receiver; (e) impair the enforcement of any of the Assignments of Leases; (f)
constitute a prohibition against Lender to seek a deficiency judgment against
Borrower in order to fully realize the security granted by each of the Security
Instruments or to commence any other appropriate action or proceeding in order
for Lender to exercise its remedies against all of the Properties; or (g)
constitute a waiver of the right of Lender to enforce the liability and
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, Guarantor or any other guarantor in connection with
the Loan;
	 
	 	(ii)	 	the gross negligence or willful misconduct of
Borrower or Guarantor;
	 
	 	(iii)	 	the breach of any representation, warranty,
covenant or indemnification provision in the Environmental
Indemnity or in the Security Instruments concerning
Environmental Laws, hazardous substances and asbestos and any
indemnification of Lender with respect thereto in either
document;
	 
	 	(iv)	 	the removal or disposal of any portion of the
Properties after an Event of Default;
	 
	 	(v)	 	the misapplication or conversion by Borrower (but
only to the extent of such misapplication or conversion) of
(A) any Insurance Proceeds paid by reason of any loss, damage
or destruction to the Properties, (B) any Awards or other
amounts received in connection with the condemnation of all or
a portion of the Properties, or (C) any Rents following an
Event of Default;
	 
	 	(vi)	 	failure to pay Taxes, charges for labor or
materials or Other Charges that can create liens on any
portion of the Properties;




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	 	(vii)	 	any security deposits, advance deposits or any
other deposits collected with respect to the Properties which
are not delivered to Lender upon a foreclosure of the
Properties 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; and
	 
	 	(viii)	 	Borrower’s indemnifications of Lender set forth in Section
9.2 hereof.





          Notwithstanding anything to the contrary in this Agreement, the Note or
any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the
Debt secured by the Security Instruments or to require that all collateral
shall continue to secure all of the Debt owing to Lender in accordance with the
Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the
event that: (i) the first Interest Only Payment Amount is not paid when due;
(ii) Borrower fails to permit on-site inspections of the Properties, fails to
provide financial information, fails to maintain its status as a single purpose
entity or fails to appoint a new property manager upon the request of Lender
after an Event of Default, each as required by, and in accordance with the
terms and provisions of, this Agreement and the Security Instruments; (iii)
Borrower fails to obtain Lender’s prior written consent to any subordinate
financing or other voluntary lien encumbering any Individual Property; (iv)
Borrower fails to obtain Lender’s prior written consent to any assignment,
transfer, or conveyance of any Individual Property or any interest therein as
required by the Security Instrument or hereunder; or (v) if any Individual
Property becomes an asset in a bankruptcy or insolvency proceeding as a result
of any petition for bankruptcy, reorganization or arrangement
pursuant to federal bankruptcy law, or any similar federal or state law,
filed by, or collusively arranged by, Borrower or any Affiliates of Borrower.



     Section 9.5 Management Agreement. 



     (a) The Improvements on the Properties are operated and managed as
“U-Store-It” self-service storage facilities (other than the Properties set
forth on Schedule 4.1.31 attached hereto) under the terms and conditions
of the Management Agreement, which have been approved by Lender including the
management fees and any other items set forth therein. The Properties (other
than the Properties set forth on Schedule 4.1.31 attached hereto) shall
at all times continue to be operated as “U-Store-It” self-service storage
facilities or under such other tradename or trademark as may be approved by
Lender. In no event shall the management fees under the Management Agreement
exceed three percent (3%) of the gross income derived from the applicable
Individual Property. Borrower shall, (i) diligently perform and observe all of
the terms, covenants and conditions of the Management Agreement, on the part of
Borrower to be performed and observed to the end that all things shall be done
which are necessary to keep unimpaired the rights of Borrower under the
Management Agreement and (ii) promptly notify Lender of the giving of any
notice by Manager to Borrower of any default by Borrower in the performance or
observance of any of the terms, covenants or conditions of the Management
Agreement on the part of Borrower to be performed and observed and deliver to
Lender a true copy of each such notice. Borrower shall not surrender the
Management Agreement, consent to



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the assignment by the Manager of its interest
under the Management Agreement, or terminate or cancel the Management
Agreement, or modify, change, supplement, alter or amend the Management
Agreement, in any respect, either orally or in writing. Borrower hereby
assigns to Lender as further security for the payment of the Debt and for the
performance and observance of the terms, covenants and conditions of this
Agreement, all the rights, privileges and prerogatives of Borrower to surrender
the Management Agreement, or to terminate, cancel, modify, change, supplement,
alter or amend the Management Agreement, in any respect, and any such surrender
of the Management Agreement, or termination, cancellation, modification,
change, supplement, alteration or amendment of the Management Agreement,
without the prior consent of Lender shall be void and of no force and effect.
If Borrower shall default in the performance or observance of any material
term, covenant or condition of the Management Agreement on the part of Borrower
to be performed or observed, then, without limiting the generality of the other
provisions of this Agreement, and without waiving or releasing Borrower from
any of its obligations hereunder, Lender shall have the right, but shall be
under no obligation, to pay any sums and to perform any act or take any action
as may be appropriate to cause all the terms, covenants and conditions of the
Management Agreement on the part of Borrower to be performed or observed to be
promptly performed or observed on behalf of Borrower, to the end that the
rights of Borrower in, to and under the Management Agreement shall be kept
unimpaired and free from default. Lender and any Person designated by Lender
shall have, and are hereby granted, the right to enter upon the applicable
Individual Property at any time and from time to time for the purpose of taking
any such action. If the Manager shall deliver to Lender a copy of any notice
sent to Borrower of default under the Management Agreement, such notice shall
constitute full protection to Lender for any action taken or omitted to be
taken by Lender in good faith, in reliance thereon. Borrower shall not, and
shall not permit the Manager to, sub-contract any or all of its management
responsibilities under the Management
Agreement to a third-party without the prior written consent of Lender,
which consent shall not be unreasonably withheld. Borrower shall, from time to
time, obtain from the Manager such certificates of estoppel with respect to
compliance by Borrower with the terms of the Management Agreement as may be
requested by Lender. Borrower shall exercise each individual option, if any,
to extend or renew the term of the Management Agreement upon demand by Lender
made at any time within one (1) year of the last day upon which any such option
may be exercised, and Borrower hereby expressly authorizes and appoints Lender
its attorney-in-fact to exercise any such option in the name of and upon behalf
of Borrower, which power of attorney shall be irrevocable and shall be deemed
to be coupled with an interest. Any sums expended by Lender pursuant to this
paragraph (i) shall bear interest at the Default Rate from the date such cost
is incurred to the date of payment to Lender, (ii) shall be deemed to
constitute a portion of the Debt, (iii) shall be secured by the lien of the
Security Instruments and the other Loan Documents and (iv) shall be immediately
due and payable upon demand by Lender therefor.




     (b) Without limitation of the foregoing, Borrower, upon the request of
Lender, shall terminate the Management Agreement and replace Manager, without
penalty or fee, if at any time during the Loan: (a) Manager shall become
insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there
exists an Event of Default, (c) there exists a default by Manager under the
Management Agreement that continues beyond the expiration of any applicable
notice and cure periods. At such time as the Manager may be removed, a
Qualifying Manager shall



98









 




assume management of the applicable Individual
Property pursuant to a Replacement Management Agreement.




     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 pursuant to a servicing agreement (the “Servicing
Agreement”) between Lender and Servicer. Borrower shall not be responsible
for (i) any set-up fees or any other initial costs relating to or arising under
the Servicing Agreement, and (ii) the monthly servicing fee due to the Servicer
under the Servicing Agreement.



     Section 9.7 Restructuring of Mortgage and/or Mezzanine Loan.



          Lender shall have the right at any time to divide the Loan and/or the
Mezzanine Loan into two or more parts (the “Restructuring Option”): one
or more mortgage loans (the “Mortgage Loan(s)”) and/or one or more
mezzanine loans (the “Mezzanine Loan(s)”). The principal amount of the
Mortgage Loan(s) plus the principal amount of the Mezzanine Loan(s) shall equal
the outstanding principal balance of the Loan and the Mezzanine Loan
immediately prior to the creation of the Mortgage Loan(s) and the Mezzanine
Loan(s). In effectuating the foregoing, Mezzanine Lender will make a loan to
Mezzanine Borrower(s); Mezzanine Borrower(s) will contribute the amount of the
Mezzanine Loan(s) to Borrower (in its capacity as Borrower under the Mortgage
Loan(s), “Mortgage Borrower”) and Mortgage Borrower will apply the
contribution to pay down the Loan, without the payment of the Yield Maintenance
Premium or other premium. The Mortgage Loan(s) and the Mezzanine
Loan(s) will be on the same terms and subject to the same conditions set
forth in this Agreement, the Note, the Security Instrument and the other Loan
Documents except as follows:



          (a) Lender (in its capacity as the lender under the Mortgage Loan(s), the
“Mortgage Lender”) shall have the right to establish different interest
rates and debt service payments for the Mortgage Loan(s) and the Mezzanine
Loan(s) and to require the payment of the Mortgage Loan(s) and the Mezzanine
Loan(s) in such order of priority as may be designated by Lender; provided,
that (i) the total loan amounts for the Mortgage Loan(s) and the Mezzanine
Loan(s) shall equal the amount of the Loan and the Mezzanine Loan immediately
prior to the creation of the Mortgage Loan(s) and the Mezzanine Loan(s); (ii)
the initial weighted average interest rate of the Mortgage Loan(s) and the
Mezzanine Loan(s) shall initially on the date created equal the interest rate
which was applicable to the Loan immediately prior to creation of the Mortgage
Loan(s) and the Mezzanine Loan(s); and (iii) the initial debt service payments
on the Mortgage Loan(s) and the Mezzanine Loan(s) shall initially on the date
created equal the debt service payment which was due under the Loan and the
Mezzanine Loan immediately prior to creation of the Mortgage Loan(s) and the
Mezzanine Loan(s). The Mortgage Loan(s) and the Mezzanine Loan(s) will be made
pursuant to Lender’s standard loan documents; provided, however, in the case of
the Mortgage Loan(s), the Mortgage Loan(s) shall be made pursuant to loan
documents substantially similar to the Loan Documents. The Mezzanine Loan(s)
will be subordinate to the Mortgage Loan(s) and will be governed by the terms
of an intercreditor agreement between the holders of the Mortgage Loan(s) and
the Mezzanine Loan(s).



99









 





          (b) Mezzanine Borrower(s) shall be a special purpose, bankruptcy remote
entity pursuant to applicable Rating Agency criteria and shall own directly or
indirectly one hundred percent (100%) of Mortgage Borrower. The direct equity
holder(s) of Mezzanine Borrower(s) (such holder(s), the “Second Level
SPE(s)”) shall be a special purpose, bankruptcy remote entity pursuant to
applicable Rating Agency criteria and shall own directly or indirectly one
hundred percent (100%) of Mezzanine Borrower(s). The security for the
Mezzanine Loan(s) shall be a pledge of one hundred percent (100%) of the direct
and indirect ownership interests held by such Mezzanine Borrower(s).



          (c) Mezzanine Borrower(s), Second Level SPE(s) and Mortgage Borrower shall
cooperate with all reasonable requests of Lender in order to divide the Loan
and/or the Mezzanine Loan into one or more Mortgage Loan(s) and one or more
Mezzanine Loan(s) and shall execute and deliver such documents as shall
reasonably be required by Lender and any Rating Agency in connection therewith,
including, without limitation, (i) the delivery of non-consolidation opinions,
(ii) the modification of organizational documents and loan documents, including, without limitation, this Agreement, (iii) authorize Lender to file any UCC-1
Financing Statements reasonably required by Lender to perfect its security
interest in the collateral pledged as security for the Mortgage Loan(s) and/or
the Mezzanine Loan(s), (iv) execute such other documents reasonably required by
Lender in connection with the creation of the Mortgage Loan(s) and/or the
Mezzanine Loan(s), including, without limitation, a guaranty substantially
similar in form and substance to the Guaranty delivered on the date hereof, an
environmental indemnity substantially similar in form and substance to the
Environmental Indemnity delivered on the date hereof and a conditional
assignment of management agreement substantially similar in form and substance
to the Assignment of Management Agreement
delivered on the date hereof, (v) deliver appropriate authorization,
execution and enforceability opinions with respect to the Mezzanine Loan(s) and
the Mortgage Loan(s), and (vi) deliver such title insurance policies, “Eagle 9”
or equivalent UCC title insurance policies, satisfactory to Lender, insuring
the perfection and priority of the lien on the collateral pledged as security
for the Mortgage Loan(s) and/or the Mezzanine Loan(s).



          It shall be an Event of Default hereunder if Borrower, Mezzanine
Borrower(s), Second Level SPE(s) or Sponsor fails to comply with any of the
terms, covenants or conditions of this Section 9.7 after expiration of ten (10)
Business Days after notice thereof.



          Solely for the purposes of this Section 9.7, Lender shall reimburse
Borrower for all of its actual out-of-pocket costs and expenses (other than the
fees and expenses of Borrower’s counsel) that Borrower incurs in connection
with complying with a request made by Lender under this Section 9.7.
Notwithstanding the foregoing, the provisions of this paragraph shall in no way
limit or affect any Borrower obligation to pay any costs expressly required to
be paid by Borrower pursuant to any other Sections of this Agreement. Lender,
without in any way limiting its other rights hereunder, in its sole and
absolute discretion, shall have the right, at any time prior to a
Securitization, to reallocate the amount of the Loan and the Mezzanine Loan
and/or adjust the interest rate rates thereon provided that (i) the aggregate
principal amount of the Loan and the Mezzanine Loan immediately following such
reallocation shall equal the outstanding principal balance of the Loan and the
Mezzanine Loan immediately prior to such reallocation and (ii) the weighted
average interest rate of the Note and the Mezzanine Note immediately following
such reallocation shall equal the weighted average interest rate which was
applicable



100









 




to the Note and the Mezzanine Note immediately prior to such
reallocation. Borrower shall cooperate with all reasonable requests of Lender
in order to reallocate the amount of the Loan and the Mezzanine Loan and shall
execute and deliver such documents as shall reasonably be required by Lender in
connection therewith, all in form and substance reasonably satisfactory to
Lender.




     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, 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. 



     (a) THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, THE LOAN WAS
MADE BY LENDER AND ACCEPTED BY BORROWER IN THE STATE OF NEW YORK, AND THE
PROCEEDS OF THE NOTE DELIVERED PURSUANT HERETO WERE DISBURSED FROM THE STATE OF
NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE
PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS,
INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN
SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY
APPLICABLE LAW OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE
PROVISIONS FOR THE CREATION, PERFECTION, AND ENFORCEMENT OF THE LIENS AND
SECURITY



101









 




INTERESTS CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN
DOCUMENTS AND THE DETERMINATION OF DEFICIENCY JUDGMENTS, SHALL BE GOVERNED BY
AND CONSTRUED ACCORDING TO THE LAW OF THE STATE IN WHICH THE APPLICABLE
INDIVIDUAL PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE FULLEST EXTENT
PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW YORK SHALL
GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS AND
ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. TO THE FULLEST EXTENT
PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY
CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT
AND THE NOTE, AND THIS AGREEMENT AND THE NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.




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



     CT CORPORATION SYSTEM



     111 EIGHTH AVENUE – 13TH FLOOR



     NEW YORK, NEW YORK 10011


AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY
AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT
NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II)
MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT
WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL
BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III)
SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO




102









 







HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A
SUCCESSOR.




     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):



	 	 	 	 	 
	 

	 	If to Lender:
	 	Lehman Brothers Holdings Inc.
	

	 	 	 	399 Park Avenue
	

	 	 	 	New York, New York 10022
	

	 	 	 	Attention: Gary Taylor
	

	 	 	 	Facsimile No.: (646) 758-2256







103









 






	 	 	 	 	 
	

	 	With a copy to:
	 	Lehman Brothers Holdings Inc.
	

	 	 	 	399 Park Avenue
	

	 	 	 	New York, New York 10022
	

	 	 	 	Attention: Scott Weiner
	

	 	 	 	Facsimile No.: (646) 758-4872
	 
	 	 	 	 
	

	 	with a copy to:
	 	Thacher Proffitt & Wood LLP
	

	 	 	 	2 World Financial Center
	

	 	 	 	New York, New York 10281
	

	 	 	 	Attention: Mitchell G. Williams, Esq.
	

	 	 	 	Facsimile No.: (212) 912-7751
	 
	 	 	 	 
	

	 	If to Borrower:
	 	YSI II LLC
	

	 	 	 	6745 Engle Road, Suite 300
	

	 	 	 	Middleburg Heights, Ohio 44130
	

	 	 	 	Attention: Steven Osgood
	

	 	 	 	Facsimile No.: (440) 234-8776
	 
	 	 	 	 
	

	 	With a copy to:
	 	Hogan & Hartson L.L.P.
	

	 	 	 	8300 Greensboro Drive, Suite 1100
	

	 	 	 	McLean, Virginia 22101
	

	 	 	 	Attention: Lee E. Berner, Esq.
	

	 	 	 	Facsimile No.: (703) 610-6200






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. 



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



     Section 10.8 Headings. 



104









 





          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.



     Section 10.13 Expenses; Indemnity.



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     (a) Borrower covenants and agrees to pay or, if Borrower fails to pay, to
reimburse, Lender within five (5) days of 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 Properties); (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) the negotiation, preparation, execution, delivery and
administration of any consents, amendments, waivers or other modifications to
this Agreement and the other Loan Documents and any other documents or matters
requested by Lender; (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 Properties,
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 Properties 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. Any cost and expenses due and payable to Lender may be
paid from any amounts in the Lockbox Account.



     (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.




     (c) Borrower shall, at its sole cost and expense, protect, defend,
indemnify, release and hold harmless Lender and the Indemnified Parties from
and against any and all losses (including, without limitation, reasonable
attorneys’ fees and costs incurred in the investigation, defense, and
settlement of losses incurred in correcting any prohibited transaction or in
the sale of a prohibited loan, and in obtaining any individual prohibited
transaction exemption under ERISA, the Code, any State statute or other similar
law that may be required, in Lender’s sole discretion) that Lender may incur,
directly or indirectly, as a result of a default under Sections 4.1.9 or 5.2.12
hereof.



     (d) Borrower covenants and agrees to pay for or, if Borrower fails to pay,
to reimburse Lender for, (i) any fees and expenses incurred by any Rating
Agency in connection with any Rating Agency review of the Loan, the Loan
Documents or any transaction contemplated thereby or (ii) any consent,
approval, waiver or confirmation obtained from such Rating Agency pursuant to
the terms and conditions of this Agreement or any other Loan Document and
Lender shall be entitled to require payment of such fees and expenses as a
condition precedent to the obtaining of any such consent, approval, waiver or
confirmation.



     Section 10.14 Schedules Incorporated.

          The Schedules and Exhibits attached 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 Properties 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



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exclusively for the benefit of Lender and no other Person shall have standing
to require satisfaction of such conditions in accordance with their terms or be
entitled to assume that Lender will refuse to make the Loan in the absence of
strict compliance with any or all thereof and no other Person shall under any
circumstances be deemed to be a beneficiary of such conditions, any or all of
which may be freely waived in whole or in part by Lender if, in Lender’s sole
discretion, Lender deems it advisable or desirable to do so.




     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, Lehman, or any of their Affiliates shall be subject to the prior
written approval of Lender, which shall not be unreasonably withheld.
Notwithstanding the foregoing, disclosure required by any Federal or State
securities laws, rules or regulations, as determined by Borrower’s counsel,
shall not be subject to the prior written approval of Lender.



     Section 10.18 Cross-Default; Cross-Collateralization; Waiver of
Marshalling of Assets.



     (a) Borrower acknowledges that Lender has made the Loan to Borrower upon
the security of its collective interest in the Properties and in reliance upon
the aggregate of the Properties taken together being of greater value as
collateral security than the sum of each Individual Property taken separately.
Borrower agrees that the Security Instruments are and will
be cross-collateralized and cross-defaulted with each other so that (i) an
Event of Default under any of the Security Instruments shall constitute an
Event of Default under each of the other Security Instruments which secure the
Note; (ii) an Event of Default under the Note or this Agreement shall
constitute an Event of Default under each Security Instrument; and (iii) each
Security Instrument shall constitute security for the Note as if a single
blanket lien were placed on all of the Properties as security for the Note.



     (b) To the fullest extent permitted by law, Borrower, for itself and its
successors and assigns, waives all rights to a marshalling of the assets of
Borrower, Borrower’s partners and others with interests in Borrower, Guarantor
and of the Properties, or to a sale in inverse order of alienation in the event
of foreclosure of all or any of the Security Instruments, 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 Properties
or any other assets of Borrower or Guarantor 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 Properties or any
other assets of Borrower or Guarantor in preference to every other claimant
whatsoever. In addition, Borrower, for itself and its successors and assigns,
waives in the event of foreclosure of any or all of the Security Instruments,
any equitable right otherwise available to Borrower which would require the
separate sale of the Properties or any other assets of Borrower or Guarantor or
require Lender to exhaust its remedies against any Individual Property or any
combination of the Properties or any other assets of Borrower or Guarantor
before proceeding against any other Individual Property or combination of
Properties



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or any other assets of Borrower or Guarantor; and further in the
event of such foreclosure Borrower does hereby expressly consents to and
authorizes, at the option of Lender, the foreclosure and sale either separately
or together of any combination of the Properties or any other assets of
Borrower or Guarantor.




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



     Section 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. 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 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 among or between such parties,
whether oral or written, between Borrower and/or its Affiliates and Lender are
superseded by the terms of this Agreement and the other Loan Documents.



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



	 	 	 	 	 
	 	 	BORROWER:
	 
	 	 	 	 
	 	 	YSI II LLC, a Delaware limited liability company
	 
	 	 	 	 
	

	 	By:
	 	/s/ Steven G. Osgood
	

	 	 	 	
 
	

	 	 	 	Name: Steven G. Osgood
	

	 	 	 	Title: President
	 
	 	 	 	 
	 	 	LENDER:
	 
	 	 	 	 
	 	 	LEHMAN BROTHERS HOLDINGS INC. d/b/a LEHMAN
CAPITAL, a division of LEHMAN BROTHERS
HOLDINGS INC., a Delaware corporation
	 
	 	 	 	 
	

	 	By:
	 	/s/ Charlene Thomas
	

	 	 	 	
 
	

	 	 	 	Name: Charlene Thomas
	

	 	 	 	Title: Vice President








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