Exhibit
10.15


 




 


 





LOAN
AGREEMENT


 


 


Dated as of
October 26, 2004




 


Between


 


 


THE
ENTITIES SET FORTH ON THE

SIGNATURE PAGE TO THIS LOAN AGREEMENT,

collectively, as
Borrower


 


 


and


 


 


COLUMN
FINANCIAL, INC.,

as Lender


 


 


BLUELINX
INDUSTRIAL PORTFOLIO


 




 





 





















 


TABLE OF CONTENTS


 


	
  I.

  	
  DEFINITIONS; PRINCIPLES OF
  CONSTRUCTION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 1.1.

  	
  Definitions

  	
   

  
	
   

  	
  Section 1.2.

  	
  Principles of Construction

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  II.

  	
  GENERAL TERMS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.1.

  	
  Loan Commitment; Disbursement
  to Borrower

  	
   

  
	
   

  	
  Section 2.2.

  	
  Interest Rate

  	
   

  
	
   

  	
  Section 2.3.

  	
  Loan Payment

  	
   

  
	
   

  	
  Section 2.4.

  	
  Prepayments

  	
   

  
	
   

  	
  Section 2.5.

  	
  Release of Property

  	
   

  
	
   

  	
  Section 2.6.

  	
  Cash Management

  	
   

  
	
   

  	
  Section 2.7.

  	
  Extension of the
  Initial Maturity Date

  	
   

  
	
   

  	
  Section 2.8.

  	
  Substitution of Properties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  III.

  	
  CONDITIONS
  PRECEDENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.1.

  	
  Conditions Precedent to
  Closing

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  IV.

  	
  REPRESENTATIONS AND
  WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.1.

  	
  Borrower Representations

  	
   

  
	
   

  	
  Section 4.2.

  	
  Survival of Representations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  V.

  	
  BORROWER
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.1.

  	
  Affirmative Covenants

  	
   

  
	
   

  	
  Section 5.2.

  	
  Negative Covenants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  VI.

  	
  INSURANCE;
  CASUALTY; CONDEMNATION; REQUIRED REPAIRS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.1.

  	
  Insurance

  	
   

  
	
   

  	
  Section 6.2.

  	
  Casualty

  	
   

  
	
   

  	
  Section
  6.3.

  	
  Condemnation

  	
   

  
	
   

  	
  Section 6.4.

  	
  Restoration

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  VII.

  	
  RESERVE FUNDS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.1.

  	
  Required Repair Funds

  	
   

  
	
   

  	
  Section 7.2.

  	
  Tax and Insurance Escrow
  Fund

  	
   

  
	
   

  	
  Section 7.3.

  	
  Replacements and
  Replacement Reserve

  	
   

  
	
   

  	
  Section 7.4.

  	
  Intentionally Omitted

  	
   

  
	
   

  	
  Section
  7.5.

  	
  Reserve
  Funds, Generally

  	
   

  



 


i





















 


	
  VIII.

  	
  DEFAULTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  8.1.

  	
  Event
  of Default

  	
   

  
	
   

  	
  Section 8.2.

  	
  Remedies

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  IX.

  	
  SPECIAL PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.1.

  	
  Sale of Notes and
  Securitization

  	
   

  
	
   

  	
  Section 9.2.

  	
  Securitization Cooperation

  	
   

  
	
   

  	
  Section
  9.3.

  	
  Loan
  Components; Mezzanine Loans

  	
   

  
	
   

  	
  Section 9.4.

  	
  Exculpation

  	
   

  
	
   

  	
  Section 9.5.

  	
  Servicer

  	
   

  
	
   

  	
  Section 9.6.

  	
  Limitation on Borrower’s
  Obligations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  X.

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.1.

  	
  Survival

  	
   

  
	
   

  	
  Section 10.2.

  	
  Lender’s Discretion

  	
   

  
	
   

  	
  Section
  10.3.

  	
  Governing
  Law

  	
   

  
	
   

  	
  Section
  10.4.

  	
  Modification,
  Waiver in Writing

  	
   

  
	
   

  	
  Section
  10.5.

  	
  Delay
  Not a Waiver

  	
   

  
	
   

  	
  Section 10.6.

  	
  Notices

  	
   

  
	
   

  	
  Section 10.7.

  	
  Trial by Jury

  	
   

  
	
   

  	
  Section 10.8.

  	
  Headings

  	
   

  
	
   

  	
  Section
  10.9.

  	
  Severability

  	
   

  
	
   

  	
  Section 10.10.

  	
  Preferences

  	
   

  
	
   

  	
  Section
  10.11.

  	
  Waiver
  of Notice

  	
   

  
	
   

  	
  Section 10.12.

  	
  Intentionally Omitted

  	
   

  
	
   

  	
  Section 10.13.

  	
  Expenses; Indemnity

  	
   

  
	
   

  	
  Section 10.14.

  	
  Schedules Incorporated

  	
   

  
	
   

  	
  Section 10.15.

  	
  Offsets, Counterclaims and
  Defenses

  	
   

  
	
   

  	
  Section 10.16.

  	
  No Joint Venture or Partnership;
  No Third Party Beneficiaries

  	
   

  
	
   

  	
  Section 10.17.

  	
  Publicity

  	
   

  
	
   

  	
  Section 10.18

  	
  Cross-Default;
  Cross-Collateralization; Waiver of Marshalling of Assets

  	
   

  
	
   

  	
  Section 10.19.

  	
  Waiver of Counterclaim

  	
   

  
	
   

  	
  Section 10.20.

  	
  Conflict; Construction of Documents; Reliance

  	
   

  
	
   

  	
  Section 10.21.

  	
  Brokers and Financial
  Advisors

  	
   

  
	
   

  	
  Section
  10.22.

  	
  Prior
  Agreements

  	
   

  
	
   

  	
  Section 10.23.

  	
  Joint and Several Liability

  	
   

  
	
   

  	
  Section
  10.24.

  	
  Intentionally
  Omitted

  	
   

  
	
   

  	
  Section
  10.25.

  	
  Mortgagee
  Waiver

  	
   

  



 


ii





















 


SCHEDULES


 


	
  Schedule I

  	
  –

  	
  Properties – Allocated
  Loan Amounts

  
	
  Schedule II

  	
  –

  	
  Individual Properties

  
	
  Schedule III

  	
  –

  	
  Required Repairs –
  Deadlines for Completion

  
	
  Schedule IV

  	
  –

  	
  Organizational
  Structure

  
	
  Schedule V

  	
  –

  	
  Out Parcels

  
	
  Schedule VI

  	
  –

  	
  Partial Release Parcels

  
	
  Schedule VII

  	
  –

  	
  Partial Release Parcel
  Release Amount

  



 


iii





















 


 


LOAN AGREEMENT


 


THIS LOAN AGREEMENT, dated as of October 26, 2004 (as
amended, restated, replaced, supplemented or otherwise modified from time to
time, this “Agreement”),
between COLUMN FINANCIAL, INC., having an address at 11 Madison Avenue, New
York, New York 10010 (“Lender”) and THE ENTITIES SET FORTH ON THE SIGNATURE PAGE OF
THIS AGREEMENT, each a Delaware limited liability company having its principal
place of business at 4300 Wildwood Parkway, Atlanta, Georgia 30339
(collectively, “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 Counterparty” shall mean any counterparty to the
Interest Rate Cap Agreement that has and shall maintain, until the expiration
of the applicable Interest Rate Cap Agreement, a long-term unsecured debt
rating of at least “AA” by S&P and “Aa2” from Moody’s, which rating shall
not include a “t” or otherwise reflect a termination risk, or any counterparty
that is otherwise acceptable to Lender.


 


“Additional Insolvency Opinion” shall have the meaning set
forth in Section 5.1.23 hereof.


 


“Adjusted Partial Release Parcel Release Amount” shall mean,
for each Partial Release Parcel, one hundred ten percent (110%) of the Partial
Release Parcel Release Amount for such Partial Release Parcel.


 


“Adjusted Release Amount” shall mean, for each Individual
Property, one hundred ten percent (110%) of the Pro-Rata Release Amount for
such Individual Property.


 


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


 





















 


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


 


“Applicable Interest Rate” shall mean the per annum rate or
rates at which the outstanding principal amount of the Loan bears interest from
time to time in accordance with the provisions of Section 2.2.3 hereof.


 


“Assignee”
shall have the meaning set forth in Section 5.2.10(e) hereof.


 


“Assignee Related
Entities” shall have the meaning set forth in Section 5.2.10(e)
hereof.


 


“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 the applicable Individual Borrower, as
assignor, to Lender, as assignee, assigning to Lender all of such Individual
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.


 


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


 


“Bankruptcy Action” shall mean with respect to any Person
(a) such Person filing a voluntary petition under the Bankruptcy Code or
any other Federal or state bankruptcy or insolvency law; (b) the filing of
an involuntary petition against such Person under the Bankruptcy Code or any
other Federal or state bankruptcy or insolvency law, or soliciting or causing
to be solicited, petitioning creditors for any involuntary petition against
such Person; (c) such Person filing an answer consenting to or otherwise
acquiescing in or joining in any involuntary petition filed against it, by any
other Person under the Bankruptcy Code or any other Federal or state bankruptcy
or insolvency law; (d) such Person consenting to or acquiescing in or
joining in an application for the appointment of a custodian, receiver,
trustee, or examiner for such Person or any portion of the Property; or (e) such
Person making an assignment for the benefit of creditors, or admitting, in
writing or in any legal proceeding, its insolvency or inability to pay its
debts as they become due.


 


“Bankruptcy Code” shall mean 11 U.S.C. §101 et seq.,
as the same may be amended from time to time.


 


“Basic Carrying Costs” shall mean, for any period, with
respect to each Individual Property, the sum of the following costs associated
with such Individual Property for such period: (a) Taxes, (b) Other
Charges and (c) Insurance Premiums.


 


“Borrower” shall have the meaning set forth in the
introductory paragraph hereto, together with its successors and permitted
assigns.


 


“Breakage Costs” shall have the meaning set forth in Section
2.2.3(h) hereof.


 


2





















 


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


 


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


 


“Cash Management Account” shall have the meaning set forth in
Section 2.6.2(a) hereof.


 


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


 


“Casualty” shall have the meaning set forth 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.


 


“Closing Date DSCR” shall mean a ratio of 1.12 to 1.0, which
ratio is equal to the Debt Service Coverage Ratio calculated as of the Closing
Date.


 


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


 


“Collateral Assignment of Interest Rate Cap Agreement” shall
mean that certain Collateral Assignment of Interest Rate Cap Agreement, dated
as of the date hereof, 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.


 


“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) hereof.


 


“Counterparty” shall mean, with respect to the Interest Rate
Cap Agreement, SMBC Derivative Products Limited and, with respect to any
Replacement Interest Rate Cap Agreement, any substitute Acceptable
Counterparty.


 


3





















 


“CSFB” shall mean Credit Suisse First Boston LLC and its
successors in interest.


 


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


 


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


 


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


 


(a)           the
numerator is the Net Cash Flow for such period; and


 


(b)           the
denominator is the debt service for such period based on an assumed Applicable
Interest Rate of 8.25% per annum.


 


“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 a rate per annum equal to the
lesser of (a) the Maximum Legal Rate and (b) four percent (4%) above
the Applicable Interest Rate.


 


“Determination Date”
shall mean, with respect to any Interest Period, the date that is two (2)
London Business Days prior to the fifteenth (15th) day of the calendar month in
which such Interest Period commences, provided that the Determination
Date with respect to the initial Interest Period shall be the date that is two
(2) London Business Days prior to the Closing Date.


 


“Disclosure Document” shall mean a prospectus, prospectus
supplement, private placement memorandum, offering memorandum, offering
circular, term sheet, road show presentation materials or other offering
documents or marketing materials, in each case in preliminary or final form,
used to offer Securities in connection with a Securitization.


 


“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 thirty (30) days or less (or, in the case of
accounts in which funds are held for more than thirty (30) days, the long term
unsecured debt obligations of which are rated at least “AA” by Fitch and
S&P and “Aa2” by Moody’s).


 


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


 


“Environmental Indemnity” shall mean that certain
Environmental Indemnity Agreement, dated as of the date hereof, executed by
Borrower and Guarantor 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.


 


“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.


 


“Extended Maturity Date” shall have the meaning set forth in Section
2.7 hereof.


 


“Extension Fee” shall mean an amount equal to one-quarter of
one percent (0.25%) of the then outstanding principal balance of the Loan.


 


“Extension Option” shall have the meaning set forth in Section
2.7 hereof.


 


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


 


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


 


“Fitch” shall mean Fitch, Inc.


 


“Foreign Taxes” shall have the meaning set forth in Section
2.2.3(e) hereof.


 


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


 


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


 


“Gross Income from Operations” shall mean, for any period,
all income, computed in accordance with GAAP, derived from the ownership and
operation of the Properties


 


5





















 


from whatever source during such period, 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 pass-through or
reimbursements paid by tenants under the Leases of any nature, but excluding
Rents from month-to-month tenants or tenants that are the subject of any
Bankruptcy Action, sales, use and occupancy or other taxes on receipts required
to be accounted for by Borrower to any Governmental Authority, refunds and
uncollectible accounts, proceeds from the sale of furniture, fixtures and
equipment, Insurance Proceeds (other than business interruption or other loss
of income insurance (including proceeds pursuant to continuing expense coverage
referred to in Section 6.1(a)(iii)) and Condemnation Proceeds, and any
disbursements to Borrower from the Reserve Funds.


 


“Guarantor” shall mean BlueLinx Holdings, Inc., its
successors and assigns.


 


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


 


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


 


“Indebtedness” shall mean, for any Person, on a particular
date, the sum (without duplication) at such date of (a) all indebtedness
or liability of such Person (including, without limitation, amounts for
borrowed money and indebtedness in the form of mezzanine debt and preferred
equity); (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 for which such Person is
liable); (d) obligations under reimbursement agreements in connection with
letters of credit; (e) obligations under acceptance facilities;
(f) all guaranties, endorsements (other than for collection or deposit in
the ordinary course of business) and other contingent obligations to purchase,
to provide funds for payment, to supply funds, to invest in any Person or
entity, or otherwise to assure a creditor against loss; and
(g) obligations secured by any Liens, whether or not the obligations have
been assumed.


 


“Independent Director” or “Independent Manager” shall mean
a Person selected by Borrower
who is not at the time of initial appointment, or at any time while serving as
a director or manager, as applicable, and has not been at any time during the
preceding five (5) years:  (a) a
stockholder, director (with the exception of serving as the Independent
Director or Independent Manager), officer, employee, partner, member, attorney
or counsel of any Individual Borrower or Principal or any Affiliate of either
of them; (b) a creditor, customer, supplier or other person who derives
any of its purchases or revenues from its activities with any Individual
Borrower or Principal or any Affiliate of either of them; (c) a Person
controlling or under common control with any such stockholder, director,
officer, partner, member, customer, supplier or other Person; or (d) a
member of the immediate family of any such stockholder, director, officer,
employee, partner, member, customer, supplier or other Person.  Notwithstanding anything to the contrary
contained herein, a natural Person who
satisfies the foregoing definition other than subparagraph (b) shall not
be disqualified from serving as an Independent Director or Independent Manager
of the applicable Person if such natural Person is an independent director
provided by a nationally recognized company that provides professional


 


6





















 


independent directors in the
ordinary course of its business.  A
natural Person who otherwise satisfies the foregoing definition, except for
being the independent director of more than one Individual Borrower or a “special
purpose entity” affiliated with any Individual Borrower or Principal, shall not
be disqualified from serving as an Independent Director or Independent Manager
if such person is an independent director provided by a nationally-recognized
company that provides professional independent directors in the ordinary course
of its business.  As used in this
definition, the term “control” means the possession, directly or
indirectly, of the power to direct or cause the direction of management,
policies or activities of a Person, whether through ownership of voting
securities, by contract or otherwise and a “special purpose entity” is an
entity, whose organizational documents contain restrictions on its activities
substantially similar to those set forth in the definition of Special Purpose
Entity in this Agreement.


 


“Individual Borrower” shall mean any one of the sixty-one
(61) entities listed on the signature page hereto.


 


“Individual Property” shall mean each parcel of real
property, the Improvements thereon and all personal property owned by an
Individual Borrower and encumbered by the applicable Mortgage, together with
all rights pertaining to such property and Improvements, as more particularly
described in the Granting Clauses of such Mortgage and referred to therein as
the “Property.”  For purposes of
clarification, the real property constituting a part of an Individual Borrower’s
Individual Property has the street address corresponding to such Individual
Borrower on Schedule II attached hereto.


 


“Initial Maturity Date” shall mean November 9, 2007.


 


“Insolvency Opinion” shall mean that certain non-consolidation
opinion letter dated the date hereof delivered by Schulte Roth & Zabel LLP
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.


 


“Interest Period” shall mean, with respect to any Payment
Date, the period commencing on the ninth (9th) day of the preceding calendar
month and terminating on the eighth (8th) day of the calendar month in which
such Payment Date occurs; provided, however, that no Interest
Period shall end later than the Maturity Date (other than for purposes of
calculating interest at the Default Rate), and the initial Interest Period
shall begin on the Closing Date and shall end on the immediately following
eighth (8th) day of the calendar month.


 


“Interest Rate Cap Agreement” shall mean, as applicable, an
Interest Rate Cap Agreement (together with the confirmation and schedules
relating thereto), in form and substance reasonably satisfactory to Lender,
between Borrower and an Acceptable Counterparty, or a Replacement Interest Rate
Cap Agreement.


 


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


 


7





















 


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
(b) every guarantee of the performance and observance of the covenants,
conditions and agreements to be performed and observed by the other party
thereto.


 


“Legal Requirements” shall mean, with respect to 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.


 


“Lender” shall have the meaning set forth in the introductory
paragraph hereto, together with its successors and assigns.


 


“LIBOR” shall mean, with respect to each Interest Period, the
rate (expressed as a percentage per annum and rounded upward, if necessary, to
the next nearest one-thousandth of one percent (0.001%)) for deposits in U.S.
dollars, for a one-month period, that appears on Telerate Page 3750 (or the
successor thereto) as of 11:00 a.m., London time, on the related Determination
Date.  If such rate does not appear on
Telerate Page 3750 as of 11:00 a.m., London time, on such Determination Date,
LIBOR shall be the arithmetic mean of the offered rates (expressed as a
percentage per annum) for deposits in U.S. dollars for a one-month period that
appear on the Reuters Screen Libor Page as of 11:00 a.m., London time, on such
Determination Date, if at least two such offered rates so appear.  If fewer than two such offered rates appear
on the Reuters Screen Libor Page as of 11:00 a.m., London time, on such
Determination Date, Lender shall request the principal London office of any
four major reference banks in the London interbank market selected by Lender to
provide such bank’s offered quotation (expressed as a percentage per annum) to
prime banks in the London interbank market for deposits in U.S. dollars for a
one-month period as of 11:00 a.m., London time, on such Determination Date for
the amounts of not less than U.S. $1,000,000. 
If at least two such offered quotations are so provided, LIBOR shall be
the arithmetic mean of such quotations. 
If fewer than two such quotations are so provided, Lender shall request
any three major banks in New York City selected by Lender to provide such bank’s
rate (expressed as a percentage per annum) for loans in U.S. dollars to leading
European banks for a one-month period as of approximately 11:00 a.m., New York
City time on the applicable Determination Date for amounts of not less than
U.S. $1,000,000.  If at least two such
rates are so provided, LIBOR shall be the arithmetic mean of such rates.  LIBOR shall be determined conclusively by
Lender or its agent.  Notwithstanding
anything to the contrary contained herein in no event shall LIBOR be less than
two percent (2.0%) per annum.


 


“LIBOR Loan” shall mean the Loan at such time as interest
thereon accrues at a rate of interest based upon LIBOR.


 


8





















 


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


 


“Lien” shall mean, with respect to each Individual Property,
any mortgage, deed of trust, lien, pledge, hypothecation, assignment, security
interest, or any other encumbrance, 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 in the original principal amount
of ONE HUNDRED SIXTY-FIVE MILLION
DOLLARS ($165,000,000.00) made by Lender to Borrower pursuant to this
Agreement.


 


“Loan Documents” shall mean, collectively, this Agreement,
the Note, the Mortgages, the Assignments of Leases, the Environmental
Indemnity, the Guaranty, the Cash Management Agreement, the Collateral
Assignment of Interest Rate Cap Agreement and all other documents executed
and/or delivered by Borrower and/or Guarantor in connection with the Loan.


 


“Loan-to-Value Ratio” shall mean the ratio, as of a
particular date, the numerator of which is equal to the then outstanding
principal balance of the Loan and the denominator of which is equal to the
appraised value of the Properties then subject to the Lien of the Mortgages,
which appraised values having been determined by Lender as of the Closing Date
(or, in case of any Substitute Property, the date of the applicable
appraisal).  Such appraised values shall
have been appropriately adjusted in connection with (i) releases of Partial Release
Parcels, (ii) substitutions of Individual Properties and (iii) any Casualty or
Condemnation in connection with which a part of the Loan shall be prepaid with
the Net Proceeds.


 


“Lockout Release Date” shall mean November 9, 2005.


 


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


 


“Master Lease” shall mean that certain Amended and Restated
Master Lease Agreement, dated as of the date hereof, between Borrower and ABP
AL (Midfield) LLC as agent for Borrower, collectively as landlord, and Master
Tenant, as tenant, as the same may be amended, restated, replaced, supplemented
or otherwise modified from time to time in accordance with the terms of this
Agreement.


 


“Master Tenant” shall mean BlueLinx Corporation, its
successors and assigns.


 


“Maturity Date” shall mean the Initial Maturity Date or, if
applicable, the Extended Maturity Date, 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.


 


9





















 


“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 an amount
equal to interest which is due on the Loan for the immediately preceding
Interest Period.


 


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


 


“Mortgage” shall mean, with respect to each Individual
Property, that certain first priority Mortgage (or Deed of Trust or Deed to
Secure Debt) and Security Agreement, dated the date hereof, executed and
delivered by the applicable Individual 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.


 


“Net Cash Flow” shall mean, over the then trailing 12-month
period, the aggregate rent payable under the Master Lease, as adjusted for an
assumed thirteen and six tenths percent (13.6%) vacancy factor, a three percent
(3%) management fee and a capital expenditure cost of fifteen cents ($0.15) per
square foot of the Improvements relating to the Properties.


 


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


 


“Net Operating Income” shall mean, for any period, the amount
obtained by subtracting Operating Expenses for such period from Gross Income
from Operations for such period.


 


“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.


 


“New Mezzanine Borrower”
shall have the meaning set forth in Section 9.3
hereof.


 


“New Mezzanine Loan” shall have the meaning set forth in Section 9.3 hereof.


 


“Note” shall mean that certain Promissory Note, dated of even
date herewith, in the principal amount of ONE HUNDRED SIXTY-FIVE MILLION DOLLARS ($165,000,000.00),
made by Borrower in favor of Lender, as the same may be amended, restated,
replaced, supplemented, severed, substituted or otherwise modified from time to
time.


 


“Officer’s Certificate” shall mean a certificate delivered to
Lender by any Individual Borrower or Borrower, as the case may be, which is
signed by an authorized officer of such Individual Borrower (if the Officer’s
Certificate is being delivered by such Individual


 


10





















 


Borrower) or of any Individual Borrower (if the Owner’s
Certificate is being delivered by Borrower).


 


“Operating Expenses” shall mean, for any period, the total of
all expenditures, computed in accordance with GAAP, of whatever kind during
such period 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, tenant
improvements and leasing commissions, operational equipment or other lease
payments as approved by Lender, and other similar costs, but excluding
depreciation, Debt Service, Capital Expenditures, and contributions to the
Reserve Funds.


 


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


 


“Out Parcels”
shall mean, collectively, the parcels of real property (each consisting of a
portion of an Individual Property) described on Schedule V attached
hereto.


 


“Partial Release Parcel
Release Amount” shall mean for a Partial Release Parcel the amount
set forth on Schedule VII hereto.


 


“Partial Release Parcels”
shall mean, collectively, the parcels of real property (each consisting of a
portion of an Individual Property) described on Schedule VI attached
hereto.


 


“Payment Date” shall mean the ninth (9th) day of each
calendar month during the term of the Loan or, if such day is not a Business
Day, the immediately preceding 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 or the Survey 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 or that are
being contested in accordance with Section 5.1.2 hereof, (d) such other
title and survey exceptions as Lender has approved or may approve in writing in
Lender’s sole discretion, (e) easements, rights-of-way, restrictions
(including zoning restrictions), defects or irregularities in title to which
like properties are commonly subject which have not been granted or created by
any Individual Borrower in violation of any provision of this Agreement
prohibiting such grant or creation and which do not (i) interfere with the
benefits to be provided by the related Mortgage on the Individual Property,
(ii) adversely affect the operation, use, value, enjoyment or
marketability of the Individual Property in any material respect, or
(iii) adversely affect Borrower’s ability to repay the Loan in full,
(f) the Master Lease, and (g) such other Liens as Lender has approved
or may approve in writing in Lender’s sole discretion.


 


11





















 


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


 


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


 


“Personal Property” shall have the meaning set forth in the
granting clauses of the Mortgage 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.


 


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


 


“Prepayment Premium” shall mean an amount equal to the
following:  (i) two percent (2%) of
the outstanding principal balance of the Loan being prepaid if the prepayment
occurs on or after the Lockout Release Date through, and including, May 9,
2006; (ii) one percent (1%) of the outstanding principal balance of the
Loan being prepaid if the prepayment occurs after May 9, 2006 through, and
including, October 9, 2006; and (iii) zero if the prepayment occurs after
October 9, 2006.


 


“Prescribed Laws” shall mean, collectively, (a) the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56) (The USA
PATRIOT Act), (b) 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,
(c) the International Emergency Economic Power Act, 50 U.S.C. §1701 et.
seq. and (d) all other Legal Requirements relating to money laundering or
terrorism.


 


“Prime Rate” shall mean the annual rate of interest publicly
announced by Citibank, N.A. in New York, New York, as its prime rate, as such
rate shall change from time to time.  If
Citibank, N.A. ceases to announce a prime rate, Prime Rate shall mean the rate
of interest published in The Wall Street Journal from time to time as
the “Prime Rate.”  If more than one “Prime
Rate” is published in The Wall Street Journal for a day, the average of
such “Prime Rates” shall be used, and such average shall be rounded up to the
nearest one-thousandth of one percent (0.001%). 
If The Wall Street Journal ceases to publish the “Prime Rate,”
Lender shall select an equivalent publication that publishes such “Prime Rate,”
and if such “Prime Rates” are no longer generally published or are limited,
regulated or administered by a Governmental Authority or quasi-governmental
body, then Lender shall select, in its reasonable discretion, a comparable
interest rate index.


 


“Prime Rate Loan” shall mean the Loan at such time as
interest thereon accrues at a rate of interest based upon the Prime Rate.


 


12





















 


“Principal”
shall mean the Special Purpose Entity that is the general partner of an
Individual Borrower (or Assignee), if such Individual Borrower (or Assignee) is
a limited partnership, or the managing member of an Individual Borrower (or
Assignee), if such Individual Borrower (or Assignee) is a limited liability
company.


 


“Prime Rate Spread”
shall mean the amount (expressed as the number of basis points) equal to
(a) LIBOR plus the Spread on the date LIBOR was last applicable to the
Loan minus (b) the Prime Rate on the date that LIBOR was last
applicable to the Loan; provided, however, in no event shall such
amount be a negative number.


 


“Pro-Rata Release Amount” shall mean, for each Individual
Property, the product of (a) the quotient obtained by dividing the Release
Amount for such Individual Property by the sum of the original Release Amount
for all Properties, and (b) the outstanding principal balance of the Loan.


 


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


 


“Provided Information” shall mean any and all financial and
other information provided at any time by, or on behalf of, any Indemnifying
Person with respect to the Properties, Borrower, Guarantor and/or Master
Tenant.


 


“Qualified Manager” shall mean a reputable and experienced
management organization which, in the reasonable judgment of Lender, possesses
experience in managing properties similar in size, scope, use and value as the
Properties, provided, that Borrower shall have obtained prior written
confirmation from the applicable Rating Agencies that management of the
Properties by such Person will not cause a downgrade, withdrawal or
qualification of the then current ratings of the Securities or any class
thereof.


 


“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.


 


“Related Party” shall have the meaning set forth in Section
4.1.39 hereof.


 


“Release Amount” shall mean for an Individual Property the
amount set forth on Schedule I hereto.


 


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


 


13





















 


interruption or other loss of income insurance
(including proceeds pursuant to continuing expense coverage referred to in Section
6.1(a)(iii)).


 


“Replacement Interest Rate Cap Agreement” means an interest
rate cap agreement from an Acceptable Counterparty with terms identical to the
Interest Rate Cap Agreement (other than the notional amount which shall be
reduced, if applicable, to reflect any repayment of principal on the Loan) and
except that the same shall be effective in connection with the supplementation
or replacement, as applicable, of the Interest Rate Cap Agreement (a) on
extension of the maturity date thereof in connection with the extension of the
Maturity Date, and/or (b) following a downgrade, withdrawal or
qualification of the long-term unsecured debt rating of the Counterparty; provided,
that to the extent any such interest rate cap agreement does not meet the
foregoing requirements, a “Replacement Interest Rate Cap Agreement”
shall be such interest rate cap agreement approved in writing by Lender in its
reasonable discretion (or, after a Securitization, each of the Rating Agencies
with respect thereto).


 


“Replacement Management Agreement” shall mean, (a) a
management agreement with a Qualified Manager, which management agreement shall
be reasonably acceptable to Lender in form and substance, provided,
Lender, at its option, may require that Borrower obtain confirmation from the
applicable Rating Agencies that such management agreement will not cause a
downgrade, withdrawal or qualification of the then current rating of the
Securities or any class thereof; and (b) an assignment of management
agreement and subordination of management fees substantially in the form then
used by Lender (or in such other form and substance reasonably acceptable to
Lender), executed and delivered to Lender by Borrower and such Qualified
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 have the meaning
set forth in Section 7.3.1 hereof.


 


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


 


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


 


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


 


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


 


“Reserve Funds” shall mean, collectively, the Tax and
Insurance Escrow Fund, the Replacement Reserve Fund, the Required Repair Fund,
and any other escrow fund established pursuant to the Loan Documents.


 


14





















 


“Resizing Event”
shall have the meaning set forth in Section 9.3(a).


 


“Restoration” shall mean the repair and restoration of an
Individual Property after a Casualty or Condemnation as nearly as possible to
the condition the Individual Property was in immediately prior to such Casualty
or Condemnation, with such other alterations in connection with such repair or
restoration as may be reasonably approved by Lender.


 


“Restricted Party” shall mean, collectively each Individual
Borrower, each Principal, and Guarantor.


 


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


 


“Sale or Pledge” shall mean a voluntary or involuntary sale,
conveyance, assignment, transfer, encumbrance or pledge of a legal or
beneficial interest.


 


“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.


 


“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.


 


“Special Purpose Entity” shall mean a corporation, limited
partnership or limited liability company which at all times on and after the
date hereof:


 


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


 


(b)           is not
engaged and will not engage in any business unrelated to (i) the
acquisition, development, ownership, management or operation of the Properties
or its Individual Property, (ii) acting as general partner of a limited
partnership that owns the Properties or an Individual Property or
(iii) acting as the managing member of a limited liability company that
owns the Properties or an Individual Property, as applicable;


 


15





















 


(c)           does not
have and will not have any material assets other than the Properties or its
Individual Property and personal property necessary or incidental to its
ownership and operation of the Properties or its Individual Property, or its
partnership interest in a limited partnership, or the member interest in a
limited liability company that owns the Properties or an Individual Property,
or acts as the general partner or managing member thereof, as applicable;


 


(d)           will not
engage in, seek or consent to any dissolution, winding up, liquidation,
consolidation, merger, sale of all or substantially all of its assets, transfer
of its partnership or membership interests (if such entity is a general partner
in a limited partnership or the managing member in a limited liability company)
or amendment of its limited partnership agreement, articles of incorporation,
articles of organization, certificate of formation or operating agreement (as
applicable) with respect to the matters set forth in this definition or, if
applicable, the Special Purpose Provisions of such document (as defined
therein);


 


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


 


(f)            if such
entity is a corporation, has at least two (2) Independent Directors, and has
not caused or allowed and will not cause or allow the board of directors of
such entity to take any action requiring the unanimous affirmative vote of one
hundred percent (100%) of the members of its board of directors unless two (2)
Independent Directors shall have participated in such vote;


 


(g)           if such
entity is a limited liability company with more than one member, has at least
one member that is a Special Purpose Entity that is a corporation that has at
least two (2) Independent Directors and that owns at least one percent (1.0%) of
the equity of the limited liability company;


 


(h)           if such
entity is a limited liability company with only one (1) member, is a limited
liability company organized in the State of Delaware that has (i) as its
only member a non-managing member, (ii) at least two (2) Independent
Directors and has not caused or allowed and will not cause or allow the board
of directors or the board of managers of such entity to take any action
requiring the unanimous affirmative vote of one hundred percent (100%) of the
managers unless two (2) Independent Directors shall have participated in such
vote and (iii) at least two (2) special members that will become the
non-managing members of such entity upon the dissolution of the existing
non-managing member;


 


(i)            if such
entity is (i) a limited liability company, has articles of organization, a
certificate of formation and/or an operating agreement, as applicable,
(ii) a limited partnership, has a limited partnership agreement, or
(iii) a corporation, has a certificate of incorporation or articles that,
in each case, provide that such entity will not:  (A) dissolve, merge, liquidate or
consolidate; (B) sell all or substantially all of its assets or the assets
of Borrower or an Individual Borrower (as applicable); (C) engage in any
other business


 


16





















 


activity, or amend its organizational documents with
respect to the matters set forth in this definition without the consent of the
Lender (and, after a Securitization, without the written consent of Lender and
written confirmation from the applicable Rating Agencies that such amendment
shall not result in a downgrade, withdrawal or qualification of the then
current ratings of the Securities or any class thereof); or (D) without the
affirmative vote of two (2) Independent Directors and of all other directors of
the corporation (that is such entity or the general partner or managing or co-managing
member of such entity), file a bankruptcy or insolvency petition or otherwise
institute insolvency proceedings with respect to itself or to any other entity
in which it has a direct or indirect legal or beneficial ownership interest;


 


(j)            is
solvent and will not take actions that would render it insolvent and has paid
and will not take any actions that would render it unable to pay its debts and
liabilities (including, as applicable, shared personnel and overhead expenses)
from its assets as the same shall become due, and is maintaining adequate
capital and will not take any actions that would render its capital inadequate
for the normal obligations reasonably foreseeable in a business of its size and
character and in light of its contemplated business operations;


 


(k)           will not
fail to correct any known misunderstanding regarding the separate identity of
such entity;


 


(l)            will
maintain its accounts, books and records separate from any other Person and
will file its own tax returns to the extent required by applicable law;


 


(m)          will
maintain its own records, books, resolutions and agreements;


 


(n)           other than
as provided in the Cash Management Agreement, (i) will not commingle its
funds or assets with those of any other Person and (ii) will not
participate in any cash management system with any other Person;


 


(o)           will hold
its assets in its own name;


 


(p)           will
conduct its business in its name or in a name franchised or licensed to it by
an entity other than an Affiliate of Borrower or an Individual Borrower, except
for services rendered under a business management services agreement with an
Affiliate that complies with the terms contained in Subsection (dd)
below, so long as the manager, or equivalent thereof, under such business
management services agreement holds itself out as an agent of the Borrower or
the applicable Individual Borrower;


 


(q)           will maintain
its financial statements, accounting records and other entity documents
separate from any other Person and has not permitted and will not permit its
assets to be listed as assets on the financial statement of any other entity
except as required by GAAP; provided, however, that any such
consolidated financial statement shall contain a note indicating that its
separate assets and liabilities are neither available to pay the debts of the
consolidated entity nor constitute obligations of the consolidated entity;


 


17





















 


(r)            will pay
its own liabilities and expenses, including the salaries of its own employees,
out of its own funds and assets, and has maintained and will maintain a
sufficient number of employees in light of its contemplated business
operations;


 


(s)           will
observe in all material respects all partnership, corporate or limited
liability company formalities, as applicable;


 


(t)            will have
no Indebtedness other than (i) the Loan, (ii) liabilities incurred in
the ordinary course of business relating to the ownership and operation of the
Properties or its Individual Property and the routine administration of
Borrower or an Individual Borrower, in amounts not to exceed one percent (1%)
of the principal balance of the Loan (or, in case of an Individual Borrower,
one percent (1%) of the Release Amount applicable to its Individual Property)
which liabilities are not more than sixty (60) days past the date incurred, are
not evidenced by a note and are paid when due, and which amounts are normal and
reasonable under the circumstances, and (iii) such other liabilities that
are permitted pursuant to this Agreement;


 


(u)           except in
connection with the Loan, will not assume or guarantee or become obligated for
the debts of any other Person or hold out its credit as being available to
satisfy the obligations of any other Person except as permitted pursuant to
this Agreement;


 


(v)           will not
acquire obligations or securities of its partners, members or shareholders or
any other Affiliate;


 


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


 


(x)            will
maintain and use separate stationery, invoices and checks bearing its
name.  The stationery, invoices, and
checks utilized by the Special Purpose Entity or utilized to collect its funds
or pay its expenses shall bear its own name and shall not bear the name of any
other entity unless such entity is clearly designated as being the Special
Purpose Entity’s agent;


 


(y)           except
pursuant to the Loan Documents, will not pledge its assets to secure the
obligations of any other Person;


 


(z)            will hold
itself out and identify itself as a separate and distinct entity under its own
name or in a name franchised or licensed to it by an entity other than an
Affiliate of Borrower or an Individual Borrower and not as a division or part
of any other Person, except for services rendered under a business management
services agreement with an Affiliate that complies with the terms contained in Subsection
(dd) below, so long as the manager, or equivalent thereof, under such
business management services agreement holds itself out as an agent of the
Borrower or the applicable Borrower;


 


18





















 


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


 


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


 


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


 


(dd)         will not
have any obligation to, and will not, indemnify its partners, officers,
directors or members, as the case may be, unless such an obligation is fully
subordinated to the Debt and will not constitute a claim against it in the
event that cash flow in excess of the amount required to pay the Debt is
insufficient to pay such obligation;


 


(ee)         if such
entity is a corporation, it shall consider the interests of its creditors in
connection with all corporate actions;


 


(ff)           except for
the Loan, does not and will not have any of its obligations guaranteed by any
Affiliate;


 


(gg)         will comply
with all of the terms and provisions contained in its organizational documents;
and


 


(hh)         will not
form, acquire or hold any subsidiary or own equity interests in any other
entity.


 


“Spread” shall mean two and one-quarter percent (2.25%).


 


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


 


“Strike Price” shall mean six percent (6.00%).


 


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


 


“Substitute Properties” shall have the meaning set forth in Section
2.8 hereof.


 


“Substitute Property” shall have the meaning set forth in Section
2.8 hereof.


 


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“Substitute Release Amount” shall have the meaning set forth
in Section 2.8(i) hereof.


 


“Substituted Property” shall have the meaning set forth in Section
2.8 hereof.


 


“Survey” shall mean a survey of the Individual Property in
question prepared pursuant to the requirements contained in Section 3.1.3(c)
hereof.


 


“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.


 


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


 


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


 


“Transfer” shall have the meaning set forth in Section
5.2.10(b) hereof.


 


“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial
Code as in effect from time to time in the State of New York and, to the extent
applicable, in the State of Delaware or in the State or Commonwealth in which
an Individual Property is located.


 


“U.S. Obligations” shall mean non-redeemable securities
evidencing an obligation to timely pay principal and/or interest in a full and
timely manner that are direct obligations of the United States of America for
the payment of which its full faith and credit is pledged.


 


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.  Wherever a representation, warranty or
certificate is based upon the knowledge of any Individual Borrower or Borrower,
the knowledge of each Individual Borrower shall be imputed to each other
Individual Borrower and Borrower.


 


20





















 


II.            GENERAL TERMS


 


Section
2.1.           Loan Commitment; Disbursement to Borrower.


 


2.1.1       Agreement to Lend and Borrow.  Subject to and upon
the terms and conditions set forth herein, Lender hereby agrees to make, and
Borrower hereby agrees to borrow, the Loan on the Closing Date.


 


2.1.2       Single Disbursement to Borrower.  Borrower
may request and receive only one disbursement 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, Mortgages and Loan Documents.  The Loan shall be evidenced by the Note and
secured by the Mortgages, the Assignments of Leases and the other Loan
Documents.


 


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


 


Section
2.2.           Interest
Rate.


 


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. 
Borrower shall pay to Lender on each Payment Date the interest accrued
on the Loan for the preceding Interest Period.


 


2.2.2       Interest
Calculation.


 


  Interest on
the outstanding principal balance of the Loan shall be calculated at the
Applicable Interest Rate by multiplying (a) the actual number of days
elapsed in the period for which the calculation is being made by (b) a
daily rate based on a three hundred sixty (360) day year, which shall be
expressed as the Applicable Interest Rate divided by 360, by (c) the
outstanding principal balance.


 


2.2.3       Determination of Interest Rate.  (a) The Applicable Interest Rate with
respect to the Loan shall be: 
(i) LIBOR plus the Spread with respect to the applicable Interest
Period for a LIBOR Loan or (ii) the Prime Rate plus the Prime Rate Spread
for a Prime Rate Loan if the Loan is converted to a Prime Rate Loan pursuant to
the provisions of Section 2.2.3(c) or (f).


 


(b)           Subject to
the terms and conditions of this Section 2.2.3, the Loan shall be a
LIBOR Loan and Borrower shall pay interest on the outstanding principal amount
of the Loan at LIBOR plus the Spread for the applicable Interest Period.  Any change in the rate of interest hereunder
due to a change in the Applicable Interest Rate shall become effective as of
the opening of business on the first day on which such change in the Applicable
Interest Rate shall


 


21





















 


become
effective.  Each determination by Lender
of the Applicable Interest Rate shall be conclusive and binding for all
purposes, absent manifest error.


 


(c)           In the
event that Lender shall have in good faith determined (which determination
shall be conclusive and binding upon Borrower absent manifest error) that by
reason of circumstances affecting the interbank eurodollar market, adequate and
reasonable means do not exist for ascertaining LIBOR, then Lender shall
forthwith give notice by telephone of such determination, confirmed in writing,
to Borrower at least one (1) day prior to the last day of the related Interest
Period.  If such notice is given, the
related outstanding LIBOR Loan shall be converted, on the last day of the then
current Interest Period, to a Prime Rate Loan.


 


(d)           If,
pursuant to the terms of this Agreement, any portion of the Loan has been
converted to a Prime Rate Loan and Lender shall determine in good faith (which
determination shall be conclusive and binding upon Borrower absent manifest
error) that the event(s) or circumstance(s) which resulted in such conversion
shall no longer be applicable, Lender shall give notice by telephone of such
determination, confirmed in writing, to Borrower at least one (1) day prior to
the last day of the related Interest Period. 
If such notice is given, the related outstanding Prime Rate Loan shall
be converted to a LIBOR Loan on the last day of the then current Interest
Period.


 


(e)           (i) With
respect to a LIBOR Loan, all payments made by Borrower hereunder shall be made
free and clear of, and without reduction for or on account of, income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions, reserves or
withholdings imposed, levied, collected, withheld or assessed by any
Governmental Authority, which are imposed, enacted or become effective after
the date hereof (such non-excluded taxes being referred to collectively as “Foreign Taxes”), excluding income and franchise taxes of the
United States of America or any political subdivision or taxing authority
thereof or therein (including Puerto Rico). 
If any Foreign 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 Foreign Taxes)
interest or any such other amounts payable hereunder at the rate or in the
amounts specified hereunder.  Whenever
any Foreign Tax is payable pursuant to applicable law by Borrower, as promptly
as possible thereafter, Borrower shall send to Lender an original official
receipt, if available, or certified copy thereof showing payment of such
Foreign Tax.  Borrower hereby indemnifies
Lender for any incremental taxes, interest or penalties that may become payable
by Lender which may result from any failure by Borrower to pay any such Foreign
Tax when due to the appropriate taxing authority or any failure by Borrower to
remit to Lender the required receipts or other required documentary evidence.


 


(ii)      If Lender is
not a U.S. Person, Lender shall deliver to Borrower, on or prior to the date
that such Lender becomes a party to this Agreement, either (A) a Form W-8BEN
which indicates a 0% rate of tax or (B) a Form W-8ECI.  If Lender is not a U.S. Person, Lender
further undertakes to deliver to Borrower additional Forms W-8BEN or W-8ECI (or
any successor forms) or other manner of certification, as the case may be, (1)
on or before the date that any such form expires or becomes obsolete, (2) after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to Borrower, and (3) such extensions or renewals
thereof as may reasonably be


 


22





















 


requested by Borrower,
certifying that Lender is entitled to receive payments hereunder without
deduction or withholding of any Foreign Taxes.


 


(iii)     If
Borrower shall become
aware that Lender is entitled to receive a refund or credit in respect of
Foreign Taxes as to which Lender has been indemnified by Borrower pursuant to Section
2.2.3(e)(i) or with respect to which Borrower has paid additional amounts pursuant to Section
2.2.3(e)(i), such Lender shall, within thirty (30) days after receipt of a
written request from Borrower,
apply for such refund or credit at Borrower’s
cost and expense.  If Lender
receives a refund or credit in respect of Foreign Taxes paid by Borrower, it
shall promptly pay such refund or credit, together with any other amounts paid
by Borrower pursuant to Section 2.2.3(e)(i) in connection with such
refunded or credited Foreign Taxes, to Borrower; provided, however,
that Borrower agrees to promptly return such refund or credit to Lender if it
receives notice from Lender that it is required to repay such refund.  Except as set forth herein, nothing contained
herein shall be construed to require Lender to seek any refund and Lender shall
have no obligation to Borrower to do so.


 


(f)            If,
subsequent to the Closing Date, any requirement of law imposed or any change
therein or in the interpretation or application thereof, shall make it unlawful
for Lender to make or maintain a LIBOR Loan as contemplated hereunder
(i) the obligation of Lender hereunder to make a LIBOR Loan or to convert
a Prime Rate Loan to a LIBOR Loan shall be canceled forthwith and (ii) any
outstanding LIBOR Loan shall be converted automatically to a Prime Rate Loan on
the next succeeding Payment Date or within such earlier period as required by
law.  Borrower hereby agrees promptly to
pay Lender, upon demand, any additional amounts necessary to compensate Lender
for any costs incurred by Lender in making any conversion in accordance with
this Agreement, including, without limitation, any interest or fees payable by
Lender to lenders of funds obtained by it in order to make or maintain the
LIBOR Loan hereunder.  Upon written
request by Borrower, Lender shall use reasonable efforts to provide a written
explanation specifying, in reasonable detail, a calculation substantiating the
same, which, upon written notice thereof from Lender, as certified to Borrower,
shall be conclusive absent manifest error.


 


(g)           In the
event that any change after the Closing Date in any requirement of law or in
the interpretation or application thereof, or compliance in good faith by
Lender with any request or directive (whether or not having the force of law)
hereafter issued by any central bank or other Governmental Authority:


 


(i)       shall
hereafter impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by, or deposits or
other liabilities in or for the account of, advances or loans by, or other
credit extended by, or any other acquisition of funds by, any office of Lender
which is not otherwise included in the determination of LIBOR hereunder;


 


(ii)      shall hereafter
have the effect of reducing the rate of return on Lender’s capital as a
consequence of its obligations hereunder to a level below that which Lender
could have achieved but for such adoption, change or compliance (taking into


 


23





















 


consideration
Lender’s policies with respect to capital adequacy) by any amount deemed by
Lender to be material; or


 


(iii)     shall
hereafter impose on Lender any other condition and the result of any of the
foregoing is to increase the cost to Lender of making, renewing or maintaining
loans or extensions of credit or to reduce any amount receivable hereunder;


 


and
the result of any of the foregoing is to increase the cost to Lender of making,
renewing or maintaining the Loan or to reduce any amount receivable hereunder,
then, in any such case, Borrower shall promptly pay to Lender, upon written
demand, any such additional amounts as shall be necessary to compensate Lender
for (A) such additional cost or (B) reduced amount receivable which
Lender deems to be material as determined by Lender.  All payments required to be made to Lender on
account of increased costs as set forth in this Section 2.2.3(g) shall
be imposed on Borrower in the event Lender imposes such payments on other
similarly situated borrowers, and no such payments shall be imposed on Borrower
to the extent that they result from any such requirement of law, request or
directive applicable solely to Lender and not to other similarly situated
lenders.  If Lender becomes entitled to
claim any additional amounts pursuant to this Section 2.2.3(g), Lender
shall provide Borrower with not less than ninety (90) days written notice
specifying in reasonable detail the event by reason of which it has become so
entitled and the additional amount and the basis for such additional amount
required to fully compensate Lender for such additional cost or reduced amount
receivable.  A certificate as to any
additional costs or amounts payable pursuant to the foregoing sentence
submitted by Lender to Borrower shall be conclusive in the absence of manifest
error.  This provision shall survive
payment of the Note and the satisfaction of all other obligations of Borrower
under this Agreement and the Loan Documents.


 


(h)           Without
duplication of the payment obligations of Borrower set forth in this Agreement
or the other Loan Documents, Borrower agrees to indemnify Lender and to hold
Lender harmless from any actual loss or out-of-pocket expense which Lender
sustains or incurs as a consequence of (i) any default by Borrower in
payment of the principal of or interest on a LIBOR Loan, including, without
limitation, any such loss or expense arising from interest or fees payable by
Lender to lenders of funds obtained by it in order to maintain a LIBOR Loan
hereunder, (ii) any prepayment (whether voluntary or mandatory) of the
LIBOR Loan on a day that (A) is not the Payment Date immediately following
the last day of an Interest Period with respect thereto or (B) is the
Payment Date immediately following the last day of an Interest Period with
respect thereto if Borrower did not give the prior notice of such prepayment
required pursuant to the terms of this Agreement, including, without
limitation, such loss or expense arising from interest or fees payable by
Lender to lenders of funds obtained by it in order to maintain the LIBOR Loan
hereunder and (iii) the conversion (for any reason whatsoever, whether
voluntary or involuntary) of the Applicable Interest Rate from LIBOR plus the
Spread to the Prime Rate plus the Prime Rate Spread with respect to any portion
of the outstanding principal amount of the Loan then bearing interest at LIBOR
plus the Spread on a date other than the Payment Date immediately following the
last day of an Interest Period, including, without limitation, such loss or
expenses arising from interest or fees payable by Lender to lenders of funds
obtained by it in order to maintain a LIBOR Loan hereunder (the amounts
referred to in clauses (i), (ii) and (iii) are herein
referred to collectively as the “Breakage Costs”); provided, however, Borrower
shall not indemnify Lender from any loss or expense arising from Lender’s 


 


24





















 


willful misconduct
or gross negligence.  This provision
shall survive payment of the Note in full and the satisfaction of all other
obligations of Borrower under this Agreement and the other Loan Documents.


 


(i)            Lender
shall not be entitled to claim compensation pursuant to this Section 2.2.3
for any Foreign Taxes, increased cost or reduction in amounts received or
receivable hereunder, or any reduced rate of return, which was incurred or
which accrued more than ninety (90) days before the date Lender notified
Borrower of the change in law or other circumstance on which such claim of
compensation is based and delivered to Borrower a written statement setting
forth in reasonable detail the basis for calculating the additional amounts
owed to Lender under this Section 2.2.3, which statement shall be
conclusive and binding upon all parties hereto absent manifest error.


 


2.2.4       Additional
Costs.  Lender will use
reasonable efforts (consistent with legal and regulatory restrictions) to
maintain the availability of the LIBOR Loan and to avoid or reduce any
increased or additional costs payable by Borrower under Section 2.2.3,
including, if requested by Borrower, a transfer or assignment of the Loan to a
branch, office or Affiliate of Lender in another jurisdiction, or a
redesignation of its lending office with respect to the Loan, in order to
maintain the availability of the LIBOR Loan or to avoid or reduce such
increased or additional costs, provided that the transfer or assignment
or redesignation (a) would not result in any additional costs, expenses or risk
to Lender that are not reimbursed by Borrower and (b) would not be
disadvantageous in any other respect to Lender as determined by Lender in its
reasonable discretion.


 


2.2.5       Default
Rate.  In the event that, and for
so long as, any Event of Default shall have occurred and be continuing, the
outstanding principal balance of the Loan and, to the extent permitted by law,
all accrued and unpaid interest in respect of the Loan and any other amounts
due pursuant to the Loan Documents, shall accrue interest at the Default Rate,
calculated from the date such payment was due without regard to any grace or
cure periods contained herein.


 


2.2.6       Usury Savings.  This Agreement, the Note and the other Loan
Documents 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.


 


25





















 


2.2.7       Interest Rate Cap Agreement.  (a) Borrower shall deliver confirmation
to Lender’s reasonable satisfaction of the purchase of an Interest Rate Cap
Agreement on the Closing Date and shall enter into an Interest Rate Cap
Agreement with a LIBOR strike price equal to the Strike Price within five (5)
Business Days after the Closing Date. 
The Interest Rate Cap Agreement (i) shall be in a form and
substance reasonably acceptable to Lender, (ii) shall be with an
Acceptable Counterparty, (iii) except as otherwise provided in the last
sentence of this Section 2.2.7(a), shall direct such Acceptable
Counterparty to deposit directly into the Cash Management Account any amounts
due Borrower under such Interest Rate Cap Agreement so long as any portion of
the Debt remains outstanding, (iv) shall be for a period equal to the term
of the Loan and (v) shall have an initial notional amount equal to the
principal balance of the Loan.  Borrower
shall collaterally assign to Lender, pursuant to the Collateral Assignment of
Interest Rate Cap Agreement, all of its right, title and interest in and to any
and all payments under the Interest Rate Cap Agreement, and shall deliver to
Lender an executed counterpart of such Interest Rate Cap Agreement (which
shall, by its terms, authorize the assignment to Lender and require that
payments be deposited directly into the Cash Management Account).  Notwithstanding anything to the contrary
contained herein or in any of the other
Loan Documents, so long as no monetary Default or Event of Default has occurred
and is continuing, upon a reduction in the outstanding principal balance of the
Loan as a result of any principal prepayment hereunder, Borrower shall be entitled to promptly (1) reduce the
Notional Amount (as defined in the Interest Rate Cap Agreement) by an amount
equal to such reduction in the outstanding principal balance of the Loan; (2)
deliver to Lender a copy of the amendment to the Interest Rate Cap Agreement
effecting such reduction; and (3) receive and retain any partial termination
payment due to Borrower in
connection with such reduction of the Notional Amount.


 


(b)           Borrower
shall comply with all of its obligations under the terms and provisions of the
Interest Rate Cap Agreement.  All amounts
paid by the Counterparty under the Interest Rate Cap Agreement to Borrower or
Lender shall be deposited immediately into the Cash Management Account or if
the Cash Management Account is not then required to be in effect, into such
account as specified by Lender.  Borrower
shall take all actions reasonably requested by Lender to enforce Lender’s
rights under the Interest Rate Cap Agreement in the event of a default by the
Counterparty and shall not, without Lender’s written consent, waive, amend or
otherwise modify any of its rights thereunder.


 


(c)           In the
event of any downgrade, withdrawal or qualification below “AA-” (or the
equivalent thereof) of the rating of the Counterparty by S&P or Moody’s,
Borrower shall replace the Interest Rate Cap Agreement with a Replacement
Interest Rate Cap Agreement not later than ten (10) Business Days following
receipt of notice from Lender of such downgrade, withdrawal or qualification.


 


(d)           In the
event that Borrower fails to purchase and deliver to Lender the Interest Rate
Cap Agreement or fails to maintain the Interest Rate Cap Agreement in
accordance with the terms and provisions of this Agreement, Lender may purchase
the Interest Rate Cap Agreement and the cost incurred by Lender in purchasing
such Interest Rate Cap Agreement shall be paid by Borrower to Lender with
interest thereon at the Default Rate from the date such cost was incurred by
Lender until such cost is reimbursed by Borrower to Lender.


 


26





















 


(e)           In
connection with the Interest Rate Cap Agreement, Borrower shall obtain and
deliver to Lender an opinion from counsel (which counsel may be in-house
counsel for the Counterparty) for the Counterparty (upon which Lender and its
successors and assigns may rely) which shall provide, in relevant part, that:


 


(i)       the
Counterparty is duly organized, validly existing, and in good standing under
the laws of its jurisdiction of incorporation and has the organizational power
and authority to execute and deliver, and to perform its obligations under, the
Interest Rate Cap Agreement;


 


(ii)      the execution
and delivery of the Interest Rate Cap Agreement and the Collateral Assignment
of Interest Rate Cap Agreement by the Counterparty, and the performance of its
obligations thereunder have been and remain duly authorized by all necessary
action and do not contravene any provision of its certificate of incorporation
or by-laws (or equivalent organizational documents) or any law, regulation or
contractual restriction binding on or affecting it or its property;


 


(iii)     all
consents, authorizations and approvals required for the execution and delivery
by the Counterparty of the Interest Rate Cap Agreement and the Collateral
Assignment of Interest Rate Cap Agreement, and the performance of its
obligations thereunder have been obtained and remain in full force and effect,
all conditions thereof have been duly complied with, and no other action by,
and no notice to or filing with any governmental authority or regulatory body
is required for such execution, delivery or performance; and


 


(iv)    each of the
Interest Rate Cap Agreement and the Collateral Assignment of Interest Rate Cap
Agreement has been duly executed and delivered by the Counterparty and
constitutes the legal, valid and binding obligation of the Counterparty,
enforceable against the Counterparty in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors’ rights
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).


 


If the
opinion from counsel for the Counterparty obtained and delivered to Lender by
Borrower pursuant to Section 2.2.7(e) does not comply with the foregoing
requirements, Lender shall have the right to approve the opinion, which
approval may be conditioned or withheld in Lender’s reasonable discretion.


 


Section
2.3.           Loan
Payment.


 


2.3.1       Monthly Debt Service 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 and including November 8, 2004,
which interest shall be calculated in accordance with the provisions of Section
2.2 hereof, and (b) on each Payment Date commencing on December 9,
2004 and on each Payment Date thereafter up to and including the Maturity Date,
Borrower shall make a payment to Lender equal to the Monthly Debt Service


 


27





















 


Payment Amount, which
payments shall be applied to interest due for the related Interest Period at
the Applicable Interest Rate for such related Interest Period.


 


2.3.2       Payments
Generally.  The first interest
accrual period hereunder shall commence on and include the Closing Date and end
on November 8, 2004.  Each interest
accrual period thereafter shall commence on the ninth (9th) day of each
calendar month during the term of the Loan and shall end on and include the
eighth (8th) day of the next occurring calendar month.  For purposes of making payments hereunder,
but not for purposes of calculating interest accrual periods, if the day on
which such payment is due is not a Business Day, then amounts due on such date
shall be due on the immediately preceding Business Day.  With respect to payments of principal due on
the Maturity Date, interest shall be payable at the Applicable Interest Rate or
the Default Rate, as the case may be, through and including the day immediately
preceding such Maturity Date.  All
amounts due pursuant to this Agreement and the other Loan Documents shall be
payable without setoff, counterclaim, defense or any other deduction
whatsoever.


 


2.3.3       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 Mortgages and the other Loan Documents.


 


2.3.4       Late
Payment Charge.  If any principal, interest or any
other sums due under the Loan Documents (other than the outstanding principal
balance due on the Maturity Date) is not paid by Borrower by the date on which
it is due, Borrower shall pay to Lender upon demand an amount equal to the
lesser of four percent (4%) of such unpaid sum or the maximum amount permitted
by applicable law in order to defray the expense incurred by Lender in handling
and processing such delinquent payment and to compensate Lender for the loss of
the use of such delinquent payment.  Any
such amount shall be secured by the Mortgages and the other Loan Documents to
the extent permitted by applicable law.


 


2.3.5       Method
and Place of Payment.  Except as
otherwise specifically provided herein, all payments and prepayments under this
Agreement and the Note shall be made to Lender not later than 2:00 P.M., New
York City time, on the date when due and shall be made in lawful money of the
United States of America in immediately available funds at Lender’s office or
as otherwise directed in writing by Lender, and any funds received by Lender
after such time shall, for all purposes hereof, be deemed to have been paid on
the next succeeding Business Day.


 


Section
2.4.           Prepayments.


 


2.4.1       Voluntary Prepayments.  Prior to the Lockout Release Date, the
outstanding principal amount of the Loan may not be prepaid in whole or in
part.  On any Payment Date occurring on,
or after, the Lockout Release Date, Borrower may, at its option and upon thirty
(30) days prior notice to Lender, prepay the Debt in whole or in part; provided
that (i) no Event of Default exists; (ii) Borrower gives Lender not less than
ten (10) and not more than sixty (60) Business Days prior written notice of the
amount of the Loan that Borrower intends to prepay; and (iii) Borrower pays
Lender, in addition to the outstanding principal


 


28





















 


amount of the Loan to be
prepaid, (A) all interest which would have accrued on the amount of the
Loan to be paid through and including the last day of the Interest Period
related to the Payment Date next occurring following the date of such
prepayment, or, if such prepayment occurs on a Payment Date, through and
including the last day of the Interest Period related to such Payment Date;
(B) all other sums due and payable under this Agreement, the Note, and the
other Loan Documents, including, but not limited to the Breakage Costs and all
of Lender’s costs and expenses (including reasonable attorney’s fees and
disbursements) incurred by Lender in connection with such prepayment; and
(C) the Prepayment Premium, if any. 
Lender shall not be obligated to accept any prepayment unless it is
accompanied by the applicable Prepayment Premium (if any) due in connection
therewith.  Any prepayment paid to Lender
in connection with any release of an Individual Property or part thereof
(including any release under Section 2.5.4 and Section 6.2
hereof) or an assignment of a Mortgage shall be applied (i) first, to
reduce the Pro-Rata Release Amount of the Individual Property or part thereof
being released (or with respect to which a Mortgage is assigned) to zero and
(ii) second, pro-rata to reduce the Pro-Rata Release Amounts of each
Individual Property remaining subject to the Lien of a Mortgage immediately
following such release or assignment. 
Borrower’s notice of prepayment shall create an obligation of Borrower
to prepay the Loan or portion thereof as set forth therein, but may be
rescinded, from time to time, by a written notice to Lender and subsequently
reinstated, from time to time, by a written notice (and in any event, following
any such rescissions, Borrower shall always have the further right to make a
prepayment on any subsequent date upon thirty (30) days prior notice in the
manner set forth above).  Borrower agrees
to indemnify Lender and to hold Lender harmless from any actual loss or
out-of-pocket expense which Lender sustains or incurs as a consequence of any
such rescission of a notice of prepayment. 
Notwithstanding anything to the contrary contained herein, Borrower may
not voluntarily make any prepayment of the Loan during the period between the
day following any Payment Date and the day preceding the next succeeding LIBOR
Determination Date immediately following such Payment Date.


 


2.4.2       Mandatory
Prepayments.  On the next
occurring Payment Date following the date on which Lender 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
authorize Lender to apply Net Proceeds as a prepayment of, the outstanding
principal balance of the Note in an amount equal to one hundred percent (100%)
of such Net Proceeds; provided, however, if an Event of Default
has occurred and is continuing, Lender may apply such Net Proceeds to the Debt
(until paid in full) in any order or priority in its sole discretion.  Other than following an Event of Default, no
Prepayment Premium shall be due in connection with any prepayment made pursuant
to this Section 2.4.2.  The
Release Amount with respect to such Individual Property so affected by the
Casualty or Condemnation shall be reduced in an amount equal to such
prepayment.


 


2.4.3       Prepayments
After Default.  If, after the
occurrence and during the continuance of an Event of Default, payment of all or
any part of the Debt is tendered by Borrower or otherwise recovered by Lender
(including through application of any Reserve Funds), such tender or recovery
shall be (a) made on the next occurring Payment Date together with the
Monthly Debt Service Payment and (b) deemed to be a voluntary prepayment
by Borrower in violation of the prohibition against prepayment set forth in Section
2.4.1 and Borrower shall pay, in addition to the Debt, an amount equal to
the greater of (i) four percent


 


29





















 


(4%) of the outstanding
principal balance of the Loan to be prepaid or satisfied, and (ii) the
Prepayment Premium.


 


Section 2.5.           Release of Property.  Except as set forth in this Section
2.5, no repayment or prepayment of all or any portion of the Loan shall
cause, give rise to a right to require, or otherwise result in, the release of
any Lien of any Mortgage on any Individual Property, Out Parcel or Partial
Release Parcel.


 


2.5.1       Release
of Individual Property.  On and
after the Lockout Release Date, Borrower may obtain the release of an
Individual Property from the Lien of the Mortgage 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)           No Event
of Default shall have occurred and be continuing;


 


(b)           (i) Borrower
shall submit to Lender, not less than fifteen (15) Business Days prior to the date
of such release, a release of Lien (and related Loan Documents) (or deed of
partial reconveyance, as the case may be) for execution by Lender.  Such release (or deed of partial
reconveyance) shall be in a form appropriate in each jurisdiction in which the
Individual Property is located and that contains standard provisions, if any,
protecting the rights of the releasing 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, to such
officer’s knowledge, such documentation (A) is in compliance with all
Legal Requirements, (B) will effect such release in accordance with the
terms of this Agreement, and (C) 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); or


 


(ii)      In lieu of such
release, upon Borrower’s written request not less than fifty (15) Business Days
prior to the date of the proposed assignment and at the expense of Borrower,
Lender agrees that it shall (A) sever the Note and assign or endorse over a
severed note in the amount equal to the Adjusted Release Amount for the
applicable Individual Property and (B) assign the applicable Mortgage to a
lender designated by Borrower.  In
connection with such assignment, Borrower shall deliver, concurrently with its
written request therefor, and Lender shall execute and deliver to Borrower or
such lender, such instruments and other documents as shall be necessary or
appropriate in compliance with all applicable laws to evidence such assignment
of the Mortgage and the applicable portion of the Loan; provided, in
each case, without covenant, recourse, representation or warranty by Lender and
notwithstanding anything to the contrary contained herein, pursuant to an
instrument or other document in form and substance satisfactory to a prudent
lender.  Borrower shall provide all other
documentation Lender reasonably requires to be delivered by Borrower in
connection with such severance and assignment (including, without limitation, a
severed note in the amount equal to the principal balance of the Loan after
giving effect to such assignment), together with an Officer’s Certificate
certifying that, to such officer’s knowledge, such severance and assignment
will not impair or otherwise adversely affect the Liens, security interests and


 


30





















 


other rights of
Lender under the Loan Documents not being assigned (or as to the parties to the
Loan Documents and Properties subject to the Loan Documents not being
assigned);


 


(c)           Borrower
shall deliver evidence satisfactory to a prudent lender that, after giving
effect to such release or assignment, the Debt Service Coverage Ratio for the
Properties then remaining subject to the Liens of the Mortgages shall be at
least equal to the greater of (i) the Closing Date DSCR and (ii) the
Debt Service Coverage Ratio for all of the then remaining Properties (including
the Individual Property to be released) for the twelve (12) full calendar
months immediately preceding the release or assignment;


 


(d)           The
applicable Individual Property shall be conveyed to a Person other than an
Individual Borrower;


 


(e)           Borrower
shall pay to Lender the Adjusted Release Amount for the applicable Individual
Property and the Prepayment Premium, if any, due in connection therewith;


 


(f)            Borrower
shall deliver evidence satisfactory to a prudent lender that, after giving
effect to such release or assignment, the Loan-to-Value Ratio for the
Properties then remaining subject to the Liens of the Mortgages shall be not
greater than the Loan-to-Value Ratio immediately preceding the Closing Date;


 


(g)           Lender
shall receive evidence that the single purpose nature and bankruptcy remoteness
of Borrower following such release or assignment have not been adversely
affected and are in accordance with the terms and provisions of the Loan
Documents; and


 


(h)           Borrower
shall reimburse Lender for any costs and expenses it reasonably incurred
arising from the transfer of the Individual Property and any release or
assignment pursuant to this Section 2.5.1 (including, without
limitation, reasonable attorneys’ fees and expenses).  Individual Borrower shall have paid all
recording charges, filing fees, taxes or other expenses payable in connection
with the release or assignment.  If the
Loan is part of a Securitization, Individual Borrower shall have paid all costs
and expenses of the Rating Agencies incurred with the release or assignment.


 


Borrower shall be permitted to make a partial
prepayment of the Loan in order to satisfy the conditions set forth in Section
2.5.1(c) and (f) above so long as such prepayment is made in
accordance with the terms and provisions of Section 2.4.1 hereof.  Following the release or assignment pursuant
to this Section 2.5.1, Lender shall adjust (if applicable) the amounts
thereafter required to be deposited by Borrower into the Reserve Funds to
reflect amounts required solely for the remaining Properties after giving
effect to such release or assignment.


 


2.5.2       Release
on Payment in Full.  Lender
shall, upon the written request and at the expense of Borrower, (a) upon
payment in full of all principal and interest due on the Loan and all other
amounts due and payable under the other Loan Documents in accordance with the
terms and provisions of the Note and this Agreement, release the Lien of the
Mortgages, the Assignments of Leases and all other security interests granted
herein and under the Loan Documents and/or (b) in lieu of applying monies
as a full repayment of the Debt, along with a


 


31





















 


release of the Lien of the Mortgages and the other
security documents, Lender agrees that it shall, in consideration of an amount
equal to that necessary for a full repayment of the Debt, (i)(A) endorse the
Note or (B) sever the Note and assign or endorse over such severed notes as
Borrower may request, (ii) assign the Mortgages so requested in writing by
Borrower to a lender designated by Borrower, and (iii) execute and deliver to
Borrower or such lender such instruments and other documents as shall be
necessary or appropriate in compliance with all applicable laws to evidence any
such assignment of the applicable Mortgages and the Loan (or portion thereof); provided,
in each case, without covenant, recourse, representation or warranty by Lender
and, notwithstanding anything to the contrary contained herein, pursuant to an
instrument or other document in form and substance satisfactory to Lender in
its reasonable discretion.


 


2.5.3       Release of
Out Parcel.  At any time after
the date hereof, Borrower may transfer and obtain a release of an Out Parcel
from the Lien of the applicable Mortgage upon at least fifteen (15) Business
Days prior written notice, provided that any such release shall only be
granted if the following conditions have been met or satisfied:


 


(a)           At the
time Borrower requests such release and at the time such release is granted
there is no continuing Event of Default;


 


(b)           The
intended use of such Out Parcel shall not have a material adverse effect on the
value, use, operation or occupancy of the applicable Individual Property;


 


(c)           Upon the
transfer and release of the Out Parcel and after the completion of the standard
approval process for tax lot-splits by the applicable municipal authority
exercising jurisdiction over the Out Parcel, no part of the remaining
applicable Individual Property shall be part of a tax lot which includes any
portion of the related Out Parcel;


 


(d)           Each
applicable municipal authority exercising jurisdiction over the Out Parcel
shall have approved, as part of its standard approval process, a lot-split
ordinance or other applicable action under local law dividing the Out Parcel
from the remainder of the applicable Individual Property and the required
procedures or processes necessary for the assignment of separate tax
identification numbers to each shall be initiated concurrently with the release
and transfer of the Out Parcel;


 


(e)           All
requirements under all laws, statutes, rules and regulations (including,
without limitation, all zoning and subdivision laws, setback requirements,
sideline requirements, parking ratio requirements, use requirements, building
and fire code requirements, environmental requirements and wetlands
requirements) applicable to the applicable Individual Property necessary to
accomplish the lot split shall have been fulfilled, and all necessary
variances, if any, shall have been obtained, and evidence thereof shall have
been delivered to Lender which in form and substance shall be appropriate for
the jurisdiction in which the applicable Individual Property is located;


 


(f)            As a
result of the lot split, the remaining applicable Individual Property with all
easements appurtenant and other Permitted Encumbrances thereto will not be in
violation of any then applicable law, statute, rule or regulation (including,
without limitation, all


 


32





















 


zoning and
subdivision laws, setback requirements, sideline requirements, parking ratio
requirements, use requirements, building and fire code requirements,
environmental requirements and wetland requirements) and all necessary
variances, if any, shall have been obtained and evidence thereof shall have
been delivered to Lender which in form and substance shall be appropriate for
the jurisdiction in which the applicable Individual Property is located;


 


(g)           The Out
Parcel to be released shall be conveyed to a Person other than an Individual
Borrower;


 


(h)           Lender
shall receive evidence that the single purpose nature and bankruptcy remoteness
of Borrower following such release have not been adversely affected and are in
accordance with the terms and provisions of the Loan Documents;


 


(i)            If
required, appropriate reciprocal easement agreements for the benefit and burden
of the remaining applicable Individual Property and the Out Parcel requiring no
cost or expense to Borrower regarding the use of common facilities of such
parcels, including, but not limited to, roadways, parking areas, utilities and
community facilities, in a form and substance that would be reasonably
acceptable to an ordinary prudent lender and which easements will not
materially adversely affect the remaining applicable Individual Property, shall
be declared and recorded, and the remaining applicable Individual Property and
the Out Parcel shall be in compliance with all applicable covenants under all
easements and property agreements contained in the Permitted Encumbrances for
the applicable Individual Property;


 


(j)            Lender
shall have received (i) an appropriate title policy endorsement or other
evidence satisfactory to a prudent lender to the effect that the release of the
Out Parcel will not have an adverse affect on the priority of the Lien of the
related Mortgage on the remaining applicable Individual Property, provided,
however, the Lien of the Mortgage on the remaining applicable Individual
Property shall be subordinated to any easements created in connection with the
release of the Out Parcel pursuant to this Section 2.5.3, and (ii) an
appropriate title policy endorsement or other evidence satisfactory to a
prudent lender that there are no new or additional subordinate Liens on the
remaining applicable Individual Property other than Permitted Encumbrances;


 


(k)           Lender
shall have received surveys of the Out Parcel and of the remaining applicable
Individual Property satisfying the requirements set forth in Section
3.1.3(c) hereof;


 


(l)            Borrower
shall reimburse Lender for any costs and expenses it reasonably incurs arising
from the transfer of the Out Parcel and any release of the Out Parcel from the
Lien of the applicable Mortgage (including, without limitation, reasonable
attorneys’ fees and expenses). 
Individual Borrower shall have paid all recording charges, filing fees,
taxes or other expenses payable in connection with the release.  If the Loan is part of a Securitization,
Individual Borrower shall have paid all costs and expenses of the Rating
Agencies incurred with the release;


 


(m)          Borrower
has delivered an Officer’s Certificate to the effect that, to such officer’s
knowledge, the conditions in subsections (a)-(l) hereof have occurred or
shall occur concurrently with the transfer and release of the Out Parcel; and


 


33





















 


(n)           Borrower
shall execute such documents and instruments and obtain such opinions of
counsel as are typical for similar transactions, including, if a Securitization
shall have occurred, an opinion that the release of the Out Parcel will not be
a “significant modification” of the Loan within the meaning of Section 1.1001-3
of the regulations of the United States Department of the Treasury and that all
other requirements applicable, if any, to the Securitization, have been
satisfied or have not otherwise been violated.


 


2.5.4       Release
of Partial Release Parcel.  On
and after the Lockout Release Date, Borrower may obtain the release of a
Partial Release Parcel from the Lien of the applicable Mortgage upon at least
thirty (30) days prior written notice, provided that any such release
shall only be granted if the following conditions have been met or satisfied:


 


(a)           At the
time Borrower requests such release and at the time such release is granted
there is no continuing Event of Default;


 


(b)           The
intended use of such Partial Release Parcel shall not have a material adverse effect
on the value, use, operation or occupancy of the applicable Individual
Property;


 


(c)           Upon the
transfer and release of the Partial Release Parcel and after the completion of
the standard approval process for tax lot-splits by the applicable municipal
authority exercising jurisdiction over the Partial Release Parcel, no part of
the remaining applicable Individual Property shall be part of a tax lot which
includes any portion of the related Partial Release Parcel;


 


(d)           Each
applicable municipal authority exercising jurisdiction over the Partial Release
Parcel shall have approved, as part of its standard approval process, a
lot-split ordinance or other applicable action under local law dividing the
Partial Release Parcel from the remainder of the applicable Individual Property
and the required procedures or processes necessary for the assignment of
separate tax identification numbers to each shall be initiated concurrently
with the release and transfer of the Partial Release Parcel;


 


(e)           All
requirements under all laws, statutes, rules and regulations (including,
without limitation, all zoning and subdivision laws, setback requirements,
sideline requirements, parking ratio requirements, use requirements, building
and fire code requirements, environmental requirements and wetlands
requirements) applicable to the applicable Individual Property necessary to
accomplish the lot split shall have been fulfilled, and all necessary
variances, if any, shall have been obtained, and evidence thereof shall have
been delivered to Lender which in form and substance shall be appropriate for
the jurisdiction in which the applicable Individual Property is located;


 


(f)            As a
result of the lot split, the remaining applicable Individual Property with all
easements appurtenant and other Permitted Encumbrances thereto will not be in
violation of any then applicable law, statute, rule or regulation (including,
without limitation, all zoning and subdivision laws, setback requirements,
sideline requirements, parking ratio requirements, use requirements, building
and fire code requirements, environmental requirements and wetland
requirements) and all necessary variances, if any, shall have been


 


34





















 


obtained and
evidence thereof shall have been delivered to Lender which in form and
substance shall be appropriate for the jurisdiction in which the applicable
Individual Property is located;


 


(g)           Lender
shall receive evidence that the single purpose nature and bankruptcy remoteness
of Borrower following such release have not been adversely affected and are in
accordance with the terms and provisions of the Loan Documents;


 


(h)           If
required, appropriate reciprocal easement agreements for the benefit and burden
of the remaining applicable Individual Property and the Partial Release Parcel
requiring no cost or expense to Borrower regarding the use of common facilities
of such parcels, including, but not limited to, roadways, parking areas,
utilities and community facilities, in a form and substance that would be
reasonably acceptable to an ordinary prudent lender and which easements will
not materially adversely affect the remaining applicable Individual Property,
shall be declared and recorded, and the remaining applicable Individual
Property and the Partial Release Parcel shall be in compliance with all
applicable covenants under all easements and property agreements contained in
the Permitted Encumbrances for the applicable Individual Property;


 


(i)            Lender
shall have received (i) an appropriate title policy endorsement or other
evidence satisfactory to a prudent lender to the effect that the release of the
Partial Release Parcel will not have an adverse affect on the priority of the
Lien of the related Mortgage on the remaining applicable Individual Property, provided,
however, the Lien of the Mortgage on the remaining applicable Individual
Property shall be subordinated to any easements created in connection with the
release of the Partial Release Parcel pursuant to this Section 2.5.4,
and (ii) an appropriate title policy endorsement or other evidence satisfactory
to a prudent lender that there are no new or additional subordinate Liens on
the remaining applicable Individual Property other than Permitted Encumbrances;


 


(j)            Lender
shall have received surveys of the Partial Release Parcel and the remaining
applicable Individual Property satisfying the requirements set forth in Section
3.1.3(c) hereof;


 


(k)           Borrower
shall reimburse Lender for any costs and expenses it reasonably incurs arising
from the transfer of the Partial Release Parcel and any release of the Partial
Release Parcel from the Lien of the applicable Mortgage (including, without
limitation, reasonable attorneys’ fees and expenses).  Individual Borrower shall have paid all
recording charges, filing fees, taxes or other expenses payable in connection
with the release.  If the Loan is part of
a Securitization, Individual Borrower shall have paid all costs and expenses of
the Rating Agencies incurred with the release;


 


(l)            Borrower
shall deliver evidence satisfactory to a prudent lender that, after giving
effect to such release, the Debt Service Coverage Ratio for the Properties
(excluding the applicable Partial Release Parcel) shall be at least equal to
the greater of (i) the Closing Date DSCR and (ii) the Debt Service Coverage
Ratio for the Properties (including the applicable Partial Release Parcel) for
the twelve (12) full calendar months immediately preceding the release of the
Partial Release Parcel;


 


35





















 


(m)          The
Individual Property to be released shall be conveyed to a Person other than an
Individual Borrower;


 


(n)           Borrower
shall pay to Lender the Adjusted Partial Release Parcel Release Amount for the
applicable Partial Release Parcel and the Prepayment Premium, if any, due in
connection therewith.  Upon such payment
of the Adjusted Partial Release Parcel Release Amount, (i) the Release Amount
for the applicable Individual Property shall be reduced by an amount equal to
the Partial Release Parcel Release Amount and (ii) each of the Pro Rata Release
Amount and the Adjusted Release Amount of each Individual Property shall be
appropriately adjusted;


 


(o)           Borrower
shall deliver evidence satisfactory to a prudent lender that, after giving
effect to such release, the Loan-to-Value Ratio for the Properties (excluding
the applicable Partial Release Parcel) shall be not greater than the
Loan-to-Value Ratio immediately preceding the Closing Date;


 


(p)           Borrower
shall be permitted to make a partial prepayment of the Loan in order to satisfy
the conditions set forth in Section 2.5.4(l) and (o) above so
long as such prepayment is made in accordance with the terms and provisions of Section
2.4.1 hereof;


 


(q)           Lender
shall receive evidence that the single purpose nature and bankruptcy remoteness
of Borrower following such release have not been adversely affected and are in
accordance with the terms and provisions of the Loan Documents;


 


(r)            Borrower
has delivered an Officer’s Certificate to the effect that, to such officer’s
knowledge, the conditions in subsections (a)-(q) hereof have occurred or
shall occur concurrently with the transfer and release of the Partial Release
Parcel; and


 


(s)           Borrower
shall execute such documents and instruments and obtain such opinions of
counsel as are typical for similar transactions, including, if a Securitization
shall have occurred, an opinion that the release of the Partial Release Parcel
will not be a “significant modification” of the Loan within the meaning of
Section 1.1001-3 of the regulations of the United States Department of the
Treasury and that all other requirements applicable, if any, to the
Securitization, have been satisfied or have not otherwise been violated.


 


Following
the release of a Partial Release Parcel in accordance with Section 2.5.4
hereof, Lender shall adjust (if applicable) the amounts thereafter required to
be deposited by Borrower into the Reserve Funds to reflect amounts required
solely for the remaining Properties after giving effect to such release.


 


Section
2.6.           Cash Management.


 


2.6.1       Intentionally
Omitted.


 


2.6.2       Cash
Management Account.  (a) Lender or its Servicer shall
establish and maintain a segregated Eligible Account (the “Cash Management
Account”) to be held by Servicer in trust for the benefit of Lender,
which Cash Management Account shall be under the sole dominion and control of
Lender.  The Cash Management Account
shall be entitled


 


36





















 


“BlueLinx Holdings, Inc.
for the benefit of Column Financial, Inc. - Cash Management Account.”  Borrower shall deliver written instructions
to all tenants under Leases to deliver all Rents payable thereunder directly to
the Cash Management Account.  Borrower
shall deposit, or cause to be deposited, all amounts received by, or on behalf
of, Borrower constituting Rents into the Cash Management Account within one (1)
Business Day after receipt thereof. 
Borrower (i) hereby grants to Lender a first priority security
interest in the Cash Management Account and all deposits at any time contained
therein and the proceeds thereof and (ii) will take all actions necessary
to maintain in favor of Lender a perfected first priority security interest in
the Cash Management Account, including, without limitation, executing and filing
UCC-1 Financing Statements and continuations thereof.  Borrower will not in any way alter or modify
the Cash Management Account and will notify Lender of the account number
thereof.  Lender and Servicer shall have
the sole right to make withdrawals from the Cash Management Account and all
costs and expenses for establishing and maintaining the Cash Management Account
shall be paid by Borrower.


 


(b)           Provided
no Event of Default shall have occurred and be continuing, on each Payment Date
(or, if such Payment Date is not a Business Day, on the immediately preceding
Business Day) all funds on deposit in the Cash Management Account shall be
applied by Lender to the payment of the following items in the order indicated:


 


(i)            First,
payments to the Tax and Insurance Escrow Fund in accordance with the terms and
conditions of Section 7.2 hereof;


 


(ii)           Second,
payment of the Monthly Debt Service Payment Amount computed at the Applicable
Interest Rate;


 


(iii)          Third,
payment of the Replacement Reserve
Monthly Deposit in accordance with the terms and conditions of Section
7.3 hereof;


 


(iv)          Fourth,
payment to Lender of any other amounts then due and payable pursuant to the
terms of the Loan Documents; and


 


(v)           Last, all
amounts remaining in the Cash Management Account to Borrower.


 


(c)           The
insufficiency of funds on deposit in the Cash Management Account shall not
relieve Borrower of the obligation to make any payments, as and when due
pursuant to this Agreement and the other Loan Documents, and such obligations
shall be separate and independent, and not conditioned on any event or
circumstance whatsoever.


 


(d)           All funds
on deposit in the Cash Management Account following the occurrence of an Event
of Default may be applied by Lender in such order and priority as Lender shall
determine.


 


2.6.3       Payments
Received Under the Cash Management Agreement.  Notwithstanding anything to the contrary
contained in this Agreement and the other Loan Documents, and provided no other
Event of Default has occurred and is continuing, Borrower’s obligations with
respect to the Monthly Debt Service Payment Amount, amounts due for the Tax


 


37





















 


and Insurance Escrow
Fund, Required Repair Fund, Replacement Reserve Fund and any other payment
reserves or other monetary obligations established pursuant to this Agreement
or any other Loan Document shall be deemed satisfied to the extent sufficient
amounts are on deposit in the Cash Management Account to satisfy such
obligations on the dates each such payment is required, regardless of whether
any of such amounts are so applied by Lender.


 


Section
2.7.           Extension of the Initial Maturity
Date.  Borrower shall have
the option to extend the term of the Loan beyond the Initial Maturity Date for
two successive terms (each, an “Extension Option”) of one (1) year each (the Initial
Maturity Date following the exercise of each such option is hereinafter the “Extended Maturity Date”)
upon satisfaction of the following terms and conditions:


 


(a)           no Event
of Default shall have occurred and be continuing at the time the applicable
Extension Option is exercised and on the date that the applicable extension
term is commenced;


 


(b)           Borrower
shall notify Lender of its irrevocable election to extend the Maturity Date as
aforesaid not earlier than six (6) months, and no later than one (1) month,
prior to (i) with respect to the first Extension Option, the Initial
Maturity Date and (ii) with respect to the second Extension Option, the
end of the first Extension Option;


 


(c)           Borrower
shall pay to Lender on or before the date that the applicable extension term is
commenced the Extension Fee and all other amounts then due and payable under
this Agreement and the other Loan Documents;


 


(d)           the
Loan-to-Value Ratio shall be not greater than the Loan-to-Value Ratio in effect
as of the Closing Date; provided, however, Borrower shall be
permitted to make a partial prepayment of the Loan on the effective date of
such extension in order to satisfy the condition set forth in this Section
2.7(d), and notwithstanding anything to the contrary contained in this
Agreement, such prepayment shall be without prepayment penalty or premium;


 


(e)           if the
Interest Rate Cap Agreement is scheduled to mature prior to the applicable
Extended Maturity Date, Borrower shall obtain and deliver to Lender not later
than one (1) Business Day prior to the first day of the applicable
Extension Option, one or more Replacement Interest Rate Cap Agreements from an
Acceptable Counterparty, which Replacement Interest Rate Cap Agreement shall be
effective commencing on the first date of such Extension Option and shall have
a maturity date not earlier than the applicable Extended Maturity Date; and


 


(f)            In
connection with each Extension Option Borrower shall have delivered to Lender
together with its notice pursuant to subsection (b) of this Section 2.7
and as of the commencement of the applicable Extension Option, an Officer’s
Certificate in form acceptable to the Lender certifying that, to such officer’s
knowledge, each of the representations and warranties of Borrower contained in
the Loan Documents is true, complete and correct in all material respects as of
the date of such Officer’s Certificate to the extent such representation and
warranties are not matters which by their nature can no longer be true and
correct as a result of the passage of time.


 


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Section 2.8.           Substitution of Properties.  Subject to the
terms and conditions set forth in this Section 2.8, Individual Borrower
may obtain a release of the Lien of a Mortgage (and the related Loan Documents)
encumbering an Individual Property (a “Substituted Property”)
by substituting therefor another warehouse property of like kind and quality
acquired by an Individual Borrower (individually, a “Substitute
Property” and collectively, the “Substitute
Properties”), provided that the following conditions
precedent are satisfied:


 


(a)           The
Maturity Date shall have not occurred.


 


(b)           Lender
shall have received at least thirty (30) days prior written notice requesting
the substitution and identifying the Substitute Property and Substituted
Property.  During the term of the Loan,
the Borrower’s right to substitute Properties shall terminate if the Release
Amount for all the Substituted Properties in the aggregate exceeds thirty
percent (30%) of the original principal balance of the Loan.


 


(c)           Lender
shall have received a copy of a deed conveying all of the Individual Borrower’s
right, title and interest in and to the Substituted Property to an entity other
than a Restricted Party pursuant to an arms length transaction and a letter
from the Individual Borrower countersigned by a title insurance company
acknowledging receipt of such deed and agreeing to record such deed in the real
estate records for the county in which the Substituted Property is located.


 


(d)           If the
Loan is part of a Securitization, Lender shall have received an appraisal of
the Substitute Property, dated no more than sixty (60) days prior to the
substitution date, prepared by a senior commercial appraiser of the American
Appraisal Institute acceptable to the Rating Agencies.


 


(e)           The fair
market value of the Substitute Property is not less than one hundred percent
(100%) of the fair market value of the Substituted Property as of the Closing
Date, which determination shall be made by (I) Lender in its reasonable
discretion if the Loan is not part of a Securitization and (II) Lender
based on the appraisal delivered pursuant to clause (d) above if
the Loan is part of a Securitization.


 


(f)            After
giving effect to the substitution, the Debt Service Coverage Ratio for the Loan
for all of the Properties (excluding the Substituted Property and including the
Substitute Property) is not less than the greater of (i) the Closing Date
DSCR and (ii) the Debt Service Coverage Ratio for the trailing twelve (12) full
calendar months as of the date immediately preceding the substitution.  Borrower shall be permitted to make a partial
prepayment of the Loan in order to satisfy the conditions set forth in this Section
2.8(f) so long as such prepayment is made in accordance with the terms and
provisions of Section 2.4.1 hereof.


 


(g)           If the
Loan is part of a Securitization, Lender shall have received confirmation in
writing from the Rating Agencies to the effect that such substitution will not
result in a withdrawal, qualification or downgrade of the respective ratings in
effect immediately prior to such substitution for the Securities, or any class
thereof, issued in connection with the Securitization that are then
outstanding.  If the Loan is not part of
a Securitization, Lender shall


 


39





















 


have consented in
writing to such substitution, which consent shall not be unreasonably withheld
or delayed.


 


(h)           No Default
or Event of Default shall have occurred and be continuing.  Lender shall have received an Officer’s
Certificate certifying that, to such officer’s knowledge, the representations
and warranties of such Individual Borrower contained in this Agreement and the
other Loan Documents are true and correct in all material respects on and as of
the date of the substitution with respect to the Substitute Property and
containing any other representations and warranties with respect to the
Substitute Property as the Rating Agencies may require, unless such certificate
would be inaccurate, such certificate to be in form and substance satisfactory
to the Rating Agencies.


 


(i)            Individual
Borrower shall (A) have executed, acknowledged and delivered to Lender (I) a Mortgage,
an Assignment of Leases and Rents and two UCC-1 Financing Statements with
respect to the Substitute Property, together with a letter from Individual
Borrower countersigned by a title insurance company acknowledging receipt of
such Mortgage, Assignment of Leases and Rents and UCC-1 Financing Statements
and agreeing to record or file, as applicable, such Mortgage, Assignment of
Leases and Rents and one of the UCC-1 Financing Statements in the real estate
records for the county in which the Substitute Property is located and to file
one of the UCC-1 Financing Statements in the office of the Secretary of State
(or other central filing office) of the state of its organization, so as to
effectively create upon such recording and filing valid and 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 and (II) an Environmental Indemnity with respect to the
Substitute Property and (B) have caused Guarantor to acknowledge and confirm
its obligations under the Loan Documents. 
The Mortgage, Assignment of Leases and Rents, UCC-1 Financing Statements
and Environmental Indemnity shall be the same in form and substance as the
counterparts of such documents executed and delivered with respect to the
related Substituted Property subject to modifications reflecting only the
Substitute Property as the Individual 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 for similar transactions
by the counsel admitted to practice in such state and delivering the opinion as
to the enforceability of such documents required pursuant to clause (o)
below.  The Mortgage 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 Mortgage shall be
equal to one hundred ten percent (110%) of the fair market value of the
Substitute Property.  The amount of the
Loan allocated to the Substitute Property (such amount being hereinafter
referred to as the “Substitute Release Amount”)
shall equal the Release Amount of the related Substituted Property, subject to
clause (B) in the second sentence of Section 2.8(r).


 


(j)            Lender
shall have received (A) unless Borrower
shall have elected to provide title insurance in an amount equal to one hundred
twenty-five percent (125%) of the Substitute Release Amount as set forth in subclause
(1) of this Section 2.8(j), a “tie-in” or similar endorsement, but
only to the extent available in such jurisdiction, to each title insurance
policy


 


40





















 


insuring the Lien
of an existing Mortgage (which shall be tied in as of the Closing Date) with
respect to such existing Mortgages and as of the date of the substitution with
respect to the title insurance policy insuring the Lien of the Mortgage 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 Mortgage encumbering the Substitute Property, issued
by the title company that issued the title insurance policies insuring the Lien
of the existing Mortgages 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 Mortgage
encumbering the Substituted Property. 
The title insurance policy issued with respect to the Substitute
Property shall (1) at Borrower’s option, provide coverage in the amount of
the Substitute Release Amount if the “tie-in” or similar endorsement described
above is available or, in lieu of a tie-in endorsement, in an amount equal to
one hundred twenty-five percent (125%) of the Substitute Release Amount,
(2) insure Lender that the relevant Mortgage 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 endorsements and affirmative coverages as are then
available and are contained in the title insurance policies insuring the Liens
of the existing Mortgages, but only to the extent the same are available in the
jurisdiction in which the Substitute Property is located, and (4) name
Lender as the insured.  Lender also shall
have received copies of paid receipts or other evidence showing that all
premiums in respect of such endorsements and title insurance policies have been
paid.


 


(k)           Lender
shall have received a current survey for each Substitute Property, certified to
the title company and Lender and their successors and assigns, in substantially
the same form and content as the certification of the survey of the Substituted
Property prepared by a professional land surveyor licensed in the state in
which the Substitute Property is located and acceptable to the Rating Agencies,
in accordance with the 1999 Minimum Standard Detail Requirements for ALTA/ACSM
Land Title Surveys.  Such survey shall
reflect the same legal description contained in the title insurance policy
relating to such Substitute Property and shall include, among other things, a
metes and bounds description of the real property comprising part of such
Substitute Property (unless such real property has been satisfactorily
designated by lot number on a recorded plat). 
The surveyor’s seal shall be
affixed to such survey and, if customary, such survey shall certify whether any
portion of the surveyed property or the improvements thereon is located in a “one-hundred-year
flood hazard area.”


 


(l)            Lender
shall have received valid certificates of insurance indicating that the
requirements for the policies of insurance required for an Individual Property
hereunder have been satisfied with respect to the Substitute Property and
evidence of the payment of all premiums payable for the existing policy period
(or if such Substitute Property is being added to Borrower’s existing policies, that such amounts have been
escrowed with Lender pursuant to Section 7.2 hereof).


 


(m)          Lender
shall have received a Phase I environmental report acceptable to a prudent
lender and, if recommended under the Phase I environmental report, a Phase II
environmental report acceptable to a prudent lender.


 


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(n)           Individual
Borrower shall deliver or cause to be delivered to Lender (A) updates
certified by Individual Borrower of all organizational documentation related to
Individual Borrower and/or the formation, structure, existence, good standing
and/or qualification to do business delivered to Lender on the Closing Date;
(B) good standing certificates, certificates of qualification to do
business in the jurisdiction in which the Substitute Property is located (if
required in such jurisdiction); and (C) resolutions of Individual Borrower
authorizing the substitution and any actions taken in connection with such
substitution.


 


(o)           Lender
shall have received the following opinions of Individual Borrower’s
counsel:  (A) an opinion or opinions
of counsel, admitted to practice under the laws of the state in which the
Substitute Property is located, stating that the Loan Documents delivered with
respect to the Substitute Property pursuant to clause (i) above are
valid and enforceable in accordance with their terms, subject to the laws
applicable to creditors’ rights and equitable principles, and that Individual
Borrower is qualified to do business and in good standing under the laws of the
jurisdiction where the Substitute Property is located or that Individual
Borrower is not required by applicable law to qualify to do business in such
jurisdiction; (B) an opinion of counsel acceptable to the Rating Agencies,
if the Loan is part of a Securitization, or the Lender, if the Loan is not part
of a Securitization, stating that the Loan Documents delivered with respect to
the Substitute Property pursuant to clause (i) above were duly
authorized, executed and delivered by such Individual Borrower and that the
execution and delivery of such Loan Documents and the performance by Individual
Borrower of its obligations thereunder will not cause a breach of, or a default
under, any agreement, document or instrument to which Individual Borrower is a
party or to which it or its properties are bound; (C) an opinion of
counsel acceptable to, the Rating Agencies if the Loan is part of a
Securitization, or the Lender if the Loan is not part of a Securitization,
stating that subjecting the Substitute Property to the Lien of the related
Mortgage and the execution and delivery of the related Loan Documents does not
and will not affect or impair the ability of Lender to enforce its remedies
under all of the Loan Documents or to realize the benefits of the
cross-collateralization provided for thereunder; (D) an update of the
Insolvency Opinion indicating that the substitution does not affect the
opinions set forth therein; (E) an opinion of counsel acceptable to, the
Rating Agencies if the Loan is part of a Securitization, or the Lender if the
Loan is not part of a Securitization, stating that the substitution and the
related transactions are arms length transactions and do not constitute a
fraudulent conveyance under applicable bankruptcy and insolvency laws and
(F) if the Loan is part of a Securitization, an opinion of counsel
acceptable to the Rating Agencies that the substitution does not constitute a “significant
modification” of the Loan under Section 1001 of the Code or otherwise cause a
tax to be imposed on a “prohibited transaction” by the REMIC Trust holding the
Loan.  Such opinions, to the extent
applicable, shall be substantially in the respective forms approved by Lender
in connection with the origination of the Loan.


 


(p)           Individual
Borrower shall have paid, or escrowed with Lender, all Basic Carrying Costs
relating to each of the Properties and the Substitute Property, including
without limitation, (i) accrued but unpaid insurance premiums relating to
each of the Properties and the Substitute Property, and (ii) currently due
and payable Taxes (including any in arrears) relating to each of the Properties
and the Substitute Property and (iii) currently due and payable
maintenance charges and other impositions relating to each of the Properties
and Substitute Property.


 


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(q)           Individual
Borrower shall have paid or reimbursed Lender for all reasonable out-of-pocket
costs and expenses incurred by Lender (including, without limitation,
reasonable attorneys fees and disbursements) in connection with the
substitution.  Individual 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.  If the Loan is part of a Securitization,
Individual Borrower shall have paid all costs and expenses of the Rating
Agencies incurred in connection with the substitution.


 


(r)            Borrower
shall be permitted to make a partial prepayment of the Loan in an amount equal
to the excess of the fair market value of the Substituted Property as of the
substitution date over the fair market value of the Substitute Property as of
the Closing Date in order to satisfy the conditions set forth in Section
2.8(e) above so long as such prepayment is made in accordance with the
terms and provisions of Section 2.4.1 hereof.  Upon such prepayment, (A) the fair market
value of the Substitute Property shall be deemed equal to the fair market value
of the Substituted Property for purposes of Section 2.8(e) above, (B)
the Substitute Release Amount shall be equal to the Release Amount of the
Substituted Property, less the amount of such prepayment, and (C) each of the
Pro Rata Release Amount and the Adjusted Release Amount of each Individual
Property shall be appropriately adjusted.


 


(s)           The
Substitute Property shall be encumbered by the Master Lease and the Individual
Borrower shall have delivered to Lender an estoppel certificate from the Master
Tenant for the Substitute Property.  Such
estoppel certificate shall be substantially in the form approved by Lender in
connection with the origination of the Loan.


 


(t)            Lender
shall have received (A) an endorsement to the title insurance policy
insuring the Lien of the Mortgage 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 stating that the Substitute Policy constitutes a separate tax lot or
(B) a letter from the appropriate taxing authority stating that the
Substitute Property constitutes a separate tax lot or other evidence
satisfactory to a prudent lender as to same.


 


(u)           Lender
shall have received a Physical Conditions Report with respect to the Substitute
Property stating that the Substitute Property is in good condition and repair
and free of damage or waste.  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 Individual Borrower shall
deposit with Lender in the Required Repair Account 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 Individual
Borrower in accordance with the provisions of Section 7.1 hereof.


 


(v)           Lender
shall have received evidence satisfactory to a prudent lender 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 such compliance shall be confirmed by delivery
to Lender of report from the Planning and Zoning


 


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Resource
Corporation or such other similar consultant which in the ordinary course of
its business provides zoning analyses and reports to institutional lenders.


 


(w)          Lender
shall have received such other and further approvals, opinions, documents and
information in connection with the substitution as requested by the Rating
Agencies if the Loan is part of a Securitization, or the Lender if the Loan is
not part of a Securitization.


 


(x)            Individual
Borrower shall submit to Lender, not less than ten (10) Business Days prior to
the date of such substitution, a release of Lien (and related Loan Documents)
for the Substituted Property for execution by Lender.  Such release shall be in a form appropriate
for the jurisdiction in which the Substituted Property is located.  Individual Borrower shall deliver an Officer’s
Certificate certifying that, to such officer’s knowledge, the requirements set
forth in this Section 2.8 have been satisfied.


 


(y)           Upon the
satisfaction of the foregoing conditions precedent, Lender will release its
Lien from the Substituted Property to be released and the Substitute Property
shall be deemed to be an Individual Property for purposes of this Agreement and
the Substitute Release Amount with respect to such Substitute Property shall be
deemed to be the Release Amount with respect to such Substitute Property for
all purposes hereunder.


 


Following
the substitution of a Substituted Property in exchange for a Substitute
Property in accordance with Section 2.8 hereof, Lender shall adjust (if
applicable) the amounts thereafter required to be deposited by Borrower into
the Reserve Funds to reflect amounts required solely for the remaining Properties
after giving effect to such substitution.


 


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 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)           Mortgages,
Assignments of Leases.  Lender shall
have received from Borrower fully executed and acknowledged counterparts of the
Mortgages and the Assignments of Leases and evidence that counterparts of the
Mortgages and Assignments of Leases have been


 


44





















 


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
trustee as may be required or desired under local law), subject only to the
Permitted Encumbrances and such other Liens as are permitted pursuant to the
Loan Documents.  Lender shall have also
received from Borrower fully executed counterparts of the other Loan Documents.


 


(b)           Title
Insurance.  Lender shall have
received Title Insurance Policies issued by Fidelity National Title Insurance
Company and dated as of the Closing Date, with ALTA Facultative reinsurance
agreements with direct access for any reinsured amounts.  Such Title Insurance Policies shall
(i) provide coverage in amounts satisfactory to Lender, (ii) insure
Lender that the relevant Mortgage creates a valid lien on the Individual
Property encumbered thereby of the requisite priority, free and clear of all
exceptions from coverage other than Permitted Encumbrances and standard
exceptions and exclusions from coverage (as modified by the terms of any
endorsements), (iii) contain such endorsements and affirmative coverages
as Lender may reasonably request, and (iv) name Lender as the
insured.  The Title Insurance Policies
shall be assignable to the extent permitted under applicable state law.  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 Survey
for each Individual Property, certified to the title company and Lender and
their successors and assigns, in form and content reasonably satisfactory to
Lender and prepared by a professional and properly licensed land surveyor
satisfactory to Lender in accordance with the Accuracy Standards for ALTA/ACSM
Land Title Surveys as adopted by ALTA, American Congress on Surveying &
Mapping and National Society of Professional Surveyors in 1999.  Each such Survey shall reflect the same legal
description contained in the Title Insurance Policies relating to such Individual
Property 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 (unless such Individual Property shall be adequately
described by lot and block or other similar grid classification).  The surveyor’s seal shall be affixed to each
Survey and the surveyor shall provide a certification for each Survey in form
and substance reasonably acceptable to Lender.


 


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


 


(e)           Environmental
Reports.  Lender shall have received
a Phase I environmental report (and, if recommended by the Phase I
environmental report, a Phase II environmental report) in respect of each
Individual Property, in each case satisfactory in form and substance to Lender.


 


(f)            Zoning.
 With respect to each Individual
Property, Lender shall have received a reliance letter from the Planning and
Zoning Resource Corporation permitting Lender to rely on the zoning reports
prepared by Planning and Zoning Resource Corporation for Borrower in connection
with its acquisition of the Properties, together with updated violations
searches for each Individual Property, which reliance letter, reports and
searches shall be reasonably satisfactory to Lender.


 


45





















 


(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 priority Lien as of the Closing Date with respect to each Mortgage 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 be in form and substance reasonably satisfactory to
Lender, and shall have been duly authorized, executed and delivered by all
parties thereto and Lender shall have received and approved certified copies
thereof.


 


3.1.5       Delivery
of Organizational Documents. 
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 reasonable 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 from Borrower’s counsel with respect to non-consolidation
and the 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       Intentionally
Omitted.


 


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, (b) currently due Taxes (including any in arrears) and
(c) currently due Other Charges, which amounts shall be funded with
proceeds of the Loan.


 


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


 


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 the Master Tenant.


 


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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
reasonable third party out-of-pocket expenses incurred in connection with the
origination of the Loan.


 


3.1.13     Material
Adverse Change.  There shall have
been no material adverse change in the financial condition or business
condition of Borrower or the Properties since the date of the most recent
financial statements delivered to Lender. 
The income and expenses of the Properties, the occupancy thereof, and
all other features of the transaction shall be as represented to Lender without
material adverse change.  Neither
Borrower nor any of its constituent Persons shall be the subject of any
bankruptcy, reorganization, or insolvency proceeding.


 


3.1.14     Leases
and Rent Roll.  Lender shall have
received copies of all Leases and certified copies of any Leases as requested
by Lender.


 


3.1.15     Intentionally
Omitted.


 


3.1.16     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.


 


3.1.17     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.


 


3.1.18     Intentionally
Omitted.


 


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


 


3.1.20     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.


 


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


 


IV.           REPRESENTATIONS AND WARRANTIES


 


Section 4.1.           Borrower Representations.  Each Individual Borrower represents
and warrants (as to itself in each instance where the representation or
warranty relates to Borrower or Individual Borrower and as to its Individual
Property where the representation or warranty relates to the Properties or
Individual Property) as of the Closing Date that:


 


47





















 


4.1.1       Organization.  Borrower has been duly organized and is
validly existing and in good standing in the jurisdiction in which it is
organized, 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 ownership, management and
operation of the Properties.  The
ownership interests of Borrower are as set forth on the organizational chart
attached hereto as Schedule IV.


 


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 to which it is a party. 
This Agreement and the other Loan Documents to which it is a party have
been duly executed and delivered by or on behalf of Borrower and constitute the
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, management 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 Governmental Authority 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 such Governmental Authority 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.  There are no actions, suits or proceedings at
law or in equity by or before any Governmental Authority or other agency now
pending or, to the best of Borrower’s knowledge, threatened against or
affecting Borrower, Guarantor or any Individual Property, which actions, suits
or proceedings, if determined against Borrower, Guarantor or such Individual
Property, could reasonably be expected to materially and adversely affect the
condition (financial or otherwise) or business of Borrower, Guarantor or the
condition or ownership of any Individual Property or are not adequately covered
by insurance.


 


4.1.5       Agreements.  Borrower is not a party to any agreement or
instrument or subject to any restriction which could reasonably be expected to
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


 


48





















 


contained in any
agreement or instrument to which it is a party or by which Borrower or any
Individual Property is bound which could reasonably be expected to materially
and adversely affect Borrower or any Individual Property, or Borrower’s
business, properties or assets, operations or condition, financial or
otherwise.  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 any Individual Property is otherwise bound, other than
(a) any obligations incurred in the ordinary course of the operation of
the Properties as permitted pursuant to clause (t) of the definition of “Special
Purpose Entity” set forth in Section 1.1 hereof and (b) the
obligations under the Loan Documents.


 


4.1.6       Title.  Borrower has good, marketable and insurable
fee simple title 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.  The Permitted
Encumbrances in the aggregate do not materially and adversely affect the value,
operation or use of the applicable Individual Property (as currently used) or
Borrower’s ability to repay the Loan. 
Each Mortgage, when properly recorded in the appropriate records,
together with any Uniform Commercial Code financing statements required to be
filed in connection therewith, will create (a) a valid, perfected first
priority lien in and to Borrower’s
right, title and interest to 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, Borrower’s
right, title and interest to all personalty (including the Leases) to the
extent such security interest can be perfected by recordation or filing, 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.  Borrower has (a) not entered into the
transactions contemplated by this Agreement or executed the Note, this
Agreement or any other Loan Documents with the actual intent to hinder, delay
or defraud any creditor and (b) received reasonably equivalent value in
exchange for its obligations under such Loan Documents.  The fair saleable value of Borrower’s assets
exceeds and will, immediately following the making of the Loan, exceed Borrower’s
probable liabilities, including, without limitation, subordinated,
unliquidated, disputed and contingent liabilities.  The fair saleable value of Borrower’s assets
is and will, immediately following the making of the Loan, be greater than
Borrower’s probable liabilities, including the maximum amount of its contingent
liabilities on its debts as such debts become absolute and matured.  Borrower’s assets do not and, immediately
following the making of the Loan will not, constitute unreasonably small
capital to carry out its business as conducted or as proposed to be
conducted.  Borrower does not intend to,
and does not believe that it will, incur debt and liabilities (including
contingent liabilities and other commitments) beyond its ability to pay such
debt and liabilities as they mature (taking into account the timing and amounts
of cash to be received by Borrower and the amounts to be payable on or in
respect of obligations of Borrower).  No
petition in bankruptcy has been filed against Borrower or any constituent
Person, and neither Borrower nor any constituent Person has ever made an
assignment for the benefit of creditors or taken advantage of any insolvency
act for the benefit of debtors.  Neither
Borrower


 


49





















 


nor any of its
constituent Persons are contemplating either the filing of a petition by it
under any state or federal bankruptcy or insolvency laws or the liquidation of
all or a major portion of Borrower’s assets or properties, 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 materially 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 reasonably foresee, could be reasonably expected to
materially and adversely affect, any Individual Property or the business,
operations or condition (financial or otherwise) of Borrower.


 


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


 


4.1.10     Compliance.  Borrower and the Properties (including the
use thereof) comply in all material respects with all applicable Legal
Requirements, including, without limitation, building and zoning ordinances and
codes and Prescribed Laws.  Borrower is
not in material default or violation of any order, writ, injunction, decree or
demand of any Governmental Authority. 
There has not been committed by Borrower or, to Borrower’s knowledge,
any other Person in occupancy of or involved with the operation or use of the
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.


 


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 connection with the
Loan (i) are true, complete and correct in all material respects,
(ii) accurately represent the financial condition of the Properties as of
the date of such reports, and (iii) to the extent prepared or audited by
an independent certified public accounting firm, have been prepared in
accordance with GAAP throughout the periods covered, except as disclosed
therein.  Except for Permitted
Encumbrances, Borrower does not have any contingent liabilities, liabilities
for taxes, unusual forward or long-term commitments or unrealized or
anticipated losses from any unfavorable commitments that are known to Borrower
and reasonably likely to have a materially adverse effect on any Individual
Property or the operation thereof as a warehouse/distribution center, except as
referred to or reflected in said financial statements.  Since the date of such financial statements,
there has been no material adverse change in the financial condition, operation
or business of Borrower from that set forth in said financial statements.


 


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4.1.12     Condemnation.  No Condemnation or other proceeding has been
commenced or, to Borrower’s best knowledge, is threatened or contemplated with
respect to all or any portion of 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.


 


4.1.14     Utilities
and Public Access.  Each
Individual Property has rights of access to public ways and is served by water,
sewer, sanitary sewer and storm drain facilities adequate to service such
Individual Property for its respective intended uses.  All public utilities necessary for the use
and operation 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 absent a valid
easement) 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
and dedicated to public use and accepted by all Governmental Authorities.


 


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


 


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, to Borrower’s knowledge,
proposed special or other, assessments for public improvements or otherwise
affecting any Individual Property, nor are there 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 currently subject
to any right of rescission, set-off, counterclaim or defense by Borrower or
Guarantor, including the defense of usury, and Borrower and Guarantor have 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 Policies reflecting the insurance coverages,
amounts and other requirements set forth in this Agreement.  Except as disclosed in writing to Lender on
the date hereof, no claims have been made under any such Policies, and, to
Borrower’s knowledge, no Person, including


 


51





















 


Borrower, has done, by
act or omission, anything which would impair the coverage of any such Policies.


 


4.1.21     Use
of Property.  Each Individual
Property is used exclusively as a warehouse/distribution center and other
appurtenant and related uses.


 


4.1.22     Certificate
of Occupancy; Licenses.  All material 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 a warehouse/distribution center
(collectively, the “Licenses”), have been obtained and are in full force and
effect.  Borrower shall keep and maintain
all material Licenses necessary for the operation of each Individual Property
as a warehouse/distribution center.  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 may be set forth on the applicable Survey, none of the
Improvements on any Individual Property is located in an area as identified by
the Federal Emergency Management Agency as an area having special flood hazards
or, if so located, the flood insurance required pursuant to Section
6.1(a)(i) is in full force and effect with respect to each such Individual
Property.


 


4.1.24     Physical
Condition.  Except as disclosed
to Lender in the Physical Conditions Report, 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) is, in all
material respects, in good condition, order and repair.  Except as disclosed to Lender in the Physical
Conditions Report, there exists no structural or other material defects or damages
in its Individual Property.  Individual
Borrower has not received notice from any insurance company or bonding company
of any defects or inadequacies in its 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.


 


4.1.25     Boundaries.  To Borrower’s knowledge, 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.


 


4.1.26     Intentionally
Omitted.


 


4.1.27     Intentionally
Omitted.


 


4.1.28     Principal
Place of Business; State of Organization.  Each Individual Borrower’s principal place of
business as of the date hereof is the address set forth in the introductory
paragraph of this Agreement.  Each
Individual Borrower is organized under the laws of the state of Delaware.


 


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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 Mortgages, have been paid or are being paid
simultaneously herewith or upon recordation thereof, and, under current Legal
Requirements, each of the Mortgages is enforceable in accordance with their
respective terms by Lender (or any subsequent holder thereof), subject to
principles of equity and bankruptcy, insolvency and other laws generally
applicable to creditors’ rights and the enforcement of debtors’ obligations.


 


4.1.30     Special
Purpose Entity/Separateness.


 


(a)           Until the
Debt has been paid in full, each Individual Borrower hereby represents,
warrants and covenants that it is, shall be and shall continue to be a Special
Purpose Entity and that from the date of formation to the date hereof, each
Individual Borrower has complied with the single purpose and separateness
provisions in Sections 7 and 9(j) of its Limited Liability Company Agreement
dated as of May 7, 2004.


 


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


 


(c)           All of the
assumptions made in the Insolvency Opinion, including, but not limited to, any
exhibits attached thereto, are true and correct in all respects.  Each Individual Borrower has complied and
will comply with all of the assumptions made with respect to such Individual Borrower
in the Insolvency Opinion.


 


4.1.31     Intentionally
Omitted.


 


4.1.32     Illegal
Activity.  No portion of any
Individual Property has been purchased with proceeds of any illegal activity.


 


4.1.33     No Change in
Facts or Circumstances; Disclosure. 
All information submitted by Borrower to Lender and in all financial
statements, rent rolls, reports, certificates 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 use, operation or value of the Properties or the business operations
or the financial condition of Borrower. 
Borrower has disclosed to Lender all material facts known to Borrower
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.


 


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4.1.34     Intentionally
Omitted.


 


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 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     Embargoed
Person.  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 or Guarantor shall constitute property of, or are beneficially owned,
directly or indirectly, by any Person subject to trade restrictions under
United States 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
under any such United States laws (each such Person, an “Embargoed
Person”) with the
result that the Loan made by Lender is or would be in violation of law;
(b) no Embargoed Person shall have any interest of any nature whatsoever
in Borrower or Guarantor, as applicable, with the result that the Loan is or
would be in violation of law; and (c) none of the funds of Borrower or
Guarantor, as applicable, shall be derived from any unlawful activity with the
result that the Loan is or would be in violation of law.


 


4.1.37     Cash
Management Account.  (a) This
Agreement, together with the other Loan Documents, creates a valid and
continuing security interest (as defined in the Uniform Commercial Code of the
State of New York) in the Cash Management Account in favor of Lender, which
security interest is prior to all other Liens, other than Permitted
Encumbrances, and is enforceable as such against creditors of and purchasers
from Borrower.  Other than in connection
with the Loan Documents and except for Permitted Encumbrances, Borrower has not
sold or otherwise conveyed the Cash Management Account.


 


(b)           The Cash
Management Account constitutes a “deposit account” within the meaning of the
Uniform Commercial Code of the State of New York).


 


(c)           Intentionally
Omitted.


 


(d)           The Cash
Management Account is not in the name of any Person other than Borrower, as
pledgor, or Lender, as pledgee.


 


4.1.38     Master Lease.  (a) The Properties are not subject to
any Leases other than the Master Lease. 
Borrower is the owner and lessor of landlord’s interest under the Master
Lease.  No Person has any possessory interest
in the Properties or right to occupy the same except under and pursuant to the
provisions of the Master Lease.  The
Master Lease is in full force and effect, there are no defaults thereunder by
either party, there are no conditions that, with the passage of time or the
giving of notice, or both, would constitute defaults thereunder, no right or
claim of recission, offset, abatement, diminution, defense or counterclaim has
been asserted with respect to the Master Lease and there is no existing condition
that, with the passage


 


54





















 


of time or giving
of notice, or both, would result in a right or claim of recission, offset,
abatement, diminution, defense or counterclaim under the terms and provisions
of the Master Lease.  No Rent under the
Master Lease has been paid more than one (1) month in advance of its due date.


 


(b)           Borrower
does not have any material monetary obligations under the Master Lease and all
material monetary obligations associated with managing, owning, developing and
operating the Properties (including, without limitation, all costs associated
with utilities, real estate taxes, insurance, maintenance and repairs) are
obligations of the Master Tenant pursuant to the terms and provisions of the
Master Lease.  Borrower does not have any
nonmonetary obligations under the terms and provisions of the Master Lease
which could interrupt the payment of Rent by Master Tenant pursuant to the
Master Lease, and all work required to be performed by Borrower under the
Master Lease has been performed as required and has been accepted by the Master
Tenant.  There is no free rent and no
allowances or abatements are required to be given by Borrower to Master Tenant,
under the Master Lease.


 


(c)           There has
been no sale, transfer or assignment, hypothecation or pledge of the Master
Lease or of the Rent received pursuant to the Master Lease, other than in
connection with the Loan Documents. 
Master Tenant has not assigned the Master Lease or sublet all or any
portion of the Properties; the Master Tenant does not hold its leased premises
under assignment or sublease, nor does anyone except Borrower, Master Tenant
and its employees occupy such leased premises. 
Neither the Master Tenant nor any other Person has a right or option
pursuant to the Master Lease or otherwise to purchase all or any part of the
Properties.


 


(d)           The Master
Lease is subordinate to the Mortgage. 
The Master Lease has an original term ending on or after the Maturity
Date.  Each remaining payment of Rent due
under the Master Lease is sufficient to pay the Monthly Debt Service Payment
Amount in full on or prior to the due date thereof (without giving effect to
any applicable grace periods) currently and over the term of the Loan.  The Rent under the Master Lease is payable
without notice or demand, and without setoff, recoupment, abatement or
reduction.  The Master Tenant has not
been released, in whole or in part, from any of its obligations under the
Master Lease.  Under the terms of the
Master Lease, the Master Tenant is not permitted to assign or sublet its
interest or obligations under the Master Lease unless such Master Tenant
remains fully and primarily liable thereunder. 
The Master Lease contains customary and enforceable provisions which
render the rights and remedies of the lessor thereunder adequate for the
enforcement and satisfaction of the lessor’s rights thereunder, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors’ rights
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).  Pursuant to the terms and
provisions of the Master Lease and this Agreement, Borrower may not amend or
modify the Master Lease without the prior written consent of Lender.  No amendment, modification, termination or
surrender (with respect to any Individual Property, the Properties or any part
thereof) of the Master Lease will be effective without the prior written
consent of Lender.  Master Tenant is
required to notify Lender of any default under the Master Lease and to provide
Lender with additional time and opportunity to cure such default.


 


(e)           Master
Tenant has agreed to indemnify Borrower under the Master Lease, among other things,
from any claims of any nature (i) to which Borrower is subject because of


 


55





















 


Master Tenant’s
occupancy, maintenance or operation of the Properties, (ii) that are imputed to
Borrower because of Borrower’s ownership of the Properties (provided that such
indemnification does not include any obligations affirmatively assumed or
undertaken by Borrower, whether by contract or otherwise) or (iii) arising from
(A) injury to or death of any Person or damage to or loss of property on the
Properties or connected with the use, condition or occupancy of the Properties,
(B) Master Tenant’s violation of the terms and provisions of the Master Lease,
or (C) any act or omission of Master Tenant; provided that Master Tenant
is not required to indemnify Borrower for any such matters arising due to the
gross negligence or willful misconduct of Borrower.


 


(f)            Master
Tenant is required upon request of Borrower to make all rental payments due
under the Master Lease directly to Lender or its designee, which rental
payments shall be delivered by Master Tenant to the Cash Management Account.


 


(g)           Borrower
represents, covenants and warrants that it is the express intent of Borrower
and the Master Tenant that the Master Lease constitute a lease under applicable
real property laws and laws governing bankruptcy, insolvency and creditors’
rights generally, and that the sole interest of the Master Tenant in the
Properties is as a tenant under the Master Lease.  In the event that it shall be determined that
the Master Lease is not a lease under applicable real property laws or under
laws governing bankruptcy, insolvency and creditors’ rights generally, and that
the interest of the Master Tenant in the Properties is other than that of
tenant under the Master Lease, Borrower hereby covenants and agrees, to the
extent permitted by applicable law, that it shall cause the Master Tenant’s
interest in the Properties, however characterized, to continue to be subject
and subordinate to the lien and security interest of the Mortgages, or Borrower’s
fee interest in the Properties, on all the same terms and conditions as
contained in the Master Lease.


 


4.1.39     SPE Prior
Act Representations.  Except as
provided in or required by prior financings secured by its Individual Property,
each Individual Borrower hereby represents and warrants to Lender (as to itself
in each instance where the representation or warranty relates to Borrower or
Individual Borrower and as to its Individual Property where the representation
or warranty relates to the Properties or Individual Property) that since its
formation:


 


(i)       Individual
Borrower has not owned any asset or property other than (A) its Individual
Property, and (B) incidental personal property necessary for the ownership
or operation of its Individual Property;


 


(ii)      Individual
Borrower has not engaged in any business other than the ownership, management
and operation of its Individual Property and Individual Borrower has conducted
and operated its business as presently conducted and operated;


 


(iii)     Individual
Borrower has not entered into any contract or agreement with any of its
Affiliates, constituents, or owners, or any guarantors of any of its
obligations or any Affiliate of any of the foregoing (individually, a “Related Party” and collectively, the “Related
Parties”) except upon terms and conditions that are commercially
reasonable and substantially similar to those available in an arm’s-length
transaction with an unrelated party and in connection with this Agreement;


 


56





















 


(iv)    Individual
Borrower has not incurred any Indebtedness other than (A) acquisition
financing with respect to its Individual Property and the Properties by
Borrower; construction financing with respect to the Improvements and certain
off-site improvements required by municipal and other authorities as conditions
to the construction of the Improvements; and first mortgage financings secured
by its Individual Property and the Properties; and Indebtedness pursuant to
letters of credit, guaranties, interest rate protection agreements and other
similar instruments executed and delivered in connection with such financings,
(B) unsecured trade payables and operational debt not evidenced by a note,
and (C) Indebtedness incurred in the financing of equipment and other
personal property used on its Individual Property and the Properties;


 


(v)     Individual
Borrower has not made any loans to any Person or held evidence of indebtedness
issued by any other Person or entity (other than cash and investment-grade
securities issued by an entity that is not an Affiliate of or subject to common
ownership with such entity);


 


(vi)    Individual
Borrower has remained solvent and has paid its debts and liabilities from its
own assets and generally as the same have became due;


 


(vii)   Individual
Borrower has allocated fairly and reasonably any overhead expenses that have
been shared with an Affiliate, including paying for office space and services
performed by any employee of an Affiliate or Related Party;


 


(viii)  Individual
Borrower has done or caused to be done all things necessary to observe all its
organizational formalities and to preserve its existence or has promptly taken
curative action with respect thereto;


 


(ix)     (A) Individual
Borrower has maintained all of its accounts (including bank accounts), books
and records separate from those of any other Person; and (B) Individual
Borrower has maintained separate financial statements and its assets have not
been listed as assets on the financial statement of any other Person except as
required by GAAP; provided, however, that any such consolidated
financial statement shall contain a note indicating that its separate assets
and liabilities are neither available to pay the debts of the consolidated
entity nor constitute obligations of the consolidated entity;


 


(x)      Individual
Borrower has been, and at all times has held itself out and identified itself
and will hold itself out and identify itself as a separate and distinct entity
under its own name or in a name franchised or licensed to it by an entity other
than an Affiliate of Borrower or an Individual Borrower and not as a division
or part of any other Person, except for services rendered under a business
management services agreement with an Affiliate that complies with the terms
contained in subsection (iii) above, so long as the manager, or
equivalent thereof, under such business management services agreement holds
itself out as an agent of Individual Borrower, has conducted business in its
own name; has not identified itself or any of its Affiliates as a division or
part of the other; and has used separate stationery, invoices and checks
bearing its own name and not the name of any Affiliate;


 


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(xi)     Individual
Borrower has corrected any known misunderstanding regarding its status as a
separate entity;


 


(xii)    Individual
Borrower has maintained adequate capital for the normal obligations reasonably
foreseeable in a business of its size and character and in light of its
contemplated business operations;


 


(xiii)   Individual
Borrower has not, nor have any of its constituent parties, sought or effected
the liquidation, dissolution, winding up, liquidation, consolidation or merger,
in whole or in part of any Individual Borrower;


 


(xiv)   Individual
Borrower has not commingled its funds or other assets with those of any
Affiliate or constituent party or any other Person, and Individual Borrower has
not held all of its assets in its own name;


 


(xv)    Individual
Borrower has maintained its assets in such a manner that it would not be costly
or difficult to segregate, ascertain or identify its individual assets from
those of any Affiliate or constituent party or any other Person;


 


(xvi)   Individual
Borrower has not guaranteed or become obligated for the debts of any other
Person, except for the debts of the other Individual Borrowers pursuant to
acquisition financing encumbering its Individual Property and the Properties,
and has not held itself out to be responsible for or to have its credit
available to satisfy the debts or obligations of any other Person;


 


(xvii)  Individual
Borrower is presently conducting its businesses so that the assumptions made
with respect to Individual Borrower in the Insolvency Opinion are currently
true and correct in all material respects;


 


(xviii) Individual
Borrower has not permitted any Affiliate or constituent party independent
access to its bank accounts;


 


(xix)   Individual
Borrower has paid the salaries of each of its own employees (if any) from its
own funds and has maintained a sufficient number of employees (if any) in light
of its contemplated business operations;


 


(xx)    Individual
Borrower has compensated each of its consultants and agents from its own funds
for services provided to it and pay from its own assets all obligations of any
kind incurred;


 


(xxi)   Individual
Borrower has not acquired any obligations or securities of any of its
Affiliates;


 


(xxii)  Individual
Borrower has not acquired or held any equity interest or subsidiary interest in
any entity;


 


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(xxiii)       Individual
Borrower has not pledged its assets for to secure the obligations of any other
Person other than with respect to loans secured by the Properties and no such
pledge remains outstanding except in connection with the Loan;


 


(xxiv)      Individual
Borrower has not incurred any indebtedness that is still outstanding other than
indebtedness that is permitted under the Loan Documents;


 


(xxv)       Individual
Borrower is and always has been duly formed, validly existing, and in good
standing in the state of its incorporation and in all other jurisdictions where
it is qualified to do business;


 


(xxvi)      Individual
Borrower has no judgments or liens of any nature against it except for tax
liens not yet due or delinquent;


 


(xxvii)     Individual
Borrower is in compliance with all laws, regulations, and orders applicable to
it and has received all permits necessary for it to operate;


 


(xxviii)    Individual
Borrower is not involved in any dispute with any taxing authority;


 


(xxix)       Individual
Borrower has paid all taxes which it owes;


 


(xxx)        Individual
Borrower is not now, nor has ever been, party to any lawsuit, arbitration,
summons, or legal proceeding;


 


(xxxi)       Individual
Borrower has materially complied with the separateness covenants referred to in
the Insolvency Opinion; and


 


(xxxii)      Individual
Borrower has no material contingent or actual obligations not related to the
Properties.


 


Section 4.2.           Survival of
Representations.  Each Individual
Borrower agrees that all of the representations and warranties 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 Mortgages 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:


 


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5.1.1       Existence;
Compliance with Legal Requirements. 
Borrower shall do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its existence, rights, licenses,
permits and franchises and comply with all Legal Requirements applicable to
Borrower and the Properties, including, without limitation, Prescribed
Laws.  There shall never be committed by
Borrower and Borrower shall not permit any other Person in occupancy of or
involved with the operation or use of the Properties to commit any act or
omission affording the federal government or any state or local government the
right of forfeiture 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 the Mortgages.  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.  After prior notice to Lender,
Borrower, at its own expense, may contest by appropriate legal proceeding
promptly initiated and conducted in good faith and with due diligence, the
validity of any Legal Requirement, the applicability of any Legal Requirement
to Borrower or any Individual Property or any alleged violation of any Legal
Requirement, provided that (i) no Event of Default has occurred and
remains uncured; (ii) Borrower is permitted to do so under the provisions of
any mortgage or deed of trust superior in lien to the applicable Mortgage;
(iii) such proceeding shall be permitted under and be conducted in accordance
with the provisions of any instrument to which Borrower is subject and shall
not constitute a default thereunder and such proceeding shall be conducted in
accordance with all applicable statutes, laws and ordinances; (iv) neither the
applicable Individual Property nor any part thereof or interest therein will be
in danger of being sold, forfeited, terminated, cancelled or lost; (v) Borrower
shall, upon final determination thereof, promptly comply with any such Legal
Requirement determined to be valid or applicable or cure any violation of any
Legal Requirement; (vi) such proceeding shall suspend the enforcement of the
contested Legal Requirement against Borrower and the applicable Individual
Property; and (vii) Borrower shall furnish such security as may be required in
the proceeding, or as may be reasonably requested by Lender, to insure
compliance with such Legal Requirement, together with all interest and
penalties payable in connection therewith; provided, however,
that Borrower shall be required to furnish such security or additional security
to Lender only to the extent of costs, interest and penalties which may be
payable in connection with or pursuant to such proceeding are in excess of the
security theretofore furnished by Borrower to the applicable Governmental
Authority.  Lender may apply any such
security, as necessary to cause compliance with such Legal Requirement at any
time when, in the reasonable judgment of Lender, the validity, applicability or
violation of such Legal Requirement is finally established or the applicable
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


 


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Taxes 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 furnish to Lender receipts for the payment of the Taxes and Other Charges
prior to the date the same shall become delinquent; provided, however,
Borrower is not required to furnish such receipts for payment of Taxes in the
event that such Taxes have been paid by Lender pursuant to Section 7.2
hereof.  Borrower shall not suffer and
shall promptly cause to be discharged (by bonding, payment or otherwise) any
Lien or charge whatsoever which may be or become a Lien or charge against the
Properties (other than Permitted Encumbrances), and shall promptly pay for all
utility services provided to the Properties. 
After prior notice to Lender, Borrower, at its own expense, may contest
by appropriate legal proceeding, promptly initiated and conducted in good faith
and due diligence, the amount or validity or application in whole or in part of
any of the Taxes or Other Charges, provided that (i) no Event of
Default has occurred and remains uncured; (ii) Borrower is permitted to do
so under the provisions of any mortgage, deed to secure debt or deed of trust
superior in lien to the applicable Mortgage; (iii) 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; (iv) no Individual Property
nor any part thereof or interest therein will be in danger of being sold,
forfeited, terminated, cancelled or lost; (v) 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; (vi) such proceeding shall suspend the collection of
such contested Taxes or Other Charges from Borrower and from the applicable
Individual Property; and (vii) Borrower shall furnish such security as may
be required in the proceeding or as may be reasonably requested by Lender, to
insure the payment of any such Taxes or Other Charges, together with all
interest and penalties thereon; provided, however, that Borrower
shall be required to furnish such security to Lender (or to deposit additional
reserves with Lender) only to the extent of costs, interest and penalties which
may be payable in connection with or pursuant to such proceeding, after giving
credit to any security deposited in such proceeding by Borrower, are in excess
of funds to pay such contested Taxes or Other Charges theretofore deposited
with or collected by Lender in the Tax and Insurance Escrow Fund.  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, cancelled or lost or there shall
be any danger of the Lien of any Mortgage being primed by any related Lien.


 


5.1.3       Litigation.  Borrower shall give prompt notice to Lender
of any litigation or governmental proceedings pending or, to Borrower’s
knowledge, threatened against any Individual Borrower and Guarantor which might
materially adversely affect any Individual Borrower’s or Guarantor’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 


 


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reasonable advance notice, provided Lender shall use
commercially reasonable efforts to minimize interference with the use and
operation of the Properties or any part thereof.


 


5.1.5       Notice of Default.  Borrower shall promptly advise Lender of any
material adverse change in any Individual Borrower’s or Guarantor’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 in all reasonable respects 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, Borrower
shall permit Lender, at its election, to participate in any such proceedings.


 


5.1.7       Perform Loan Documents.  Borrower shall pay when due all costs, fees
and expenses to the extent required under the Loan Documents executed and
delivered by, or applicable to, Borrower.


 


5.1.8       Award and Insurance
Benefits.  Borrower shall
cooperate fully with Lender in obtaining for Lender the benefits of any Awards
or Insurance Proceeds lawfully or equitably payable in connection with any Individual
Property to the extent Lender is entitled to same under the terms of the Loan
Documents, and Lender shall be reimbursed for any expenses reasonably incurred
in connection therewith (including reasonable attorneys’ fees and
disbursements, and the payment by Borrower of the expense of an appraisal on
behalf of Lender in case of 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 relating to the Properties or Substitute
Properties, 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 which are 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 reasonably necessary or desirable,
to evidence, preserve and/or protect the collateral at any time securing or
intended to secure the obligations of Borrower under the Loan Documents, as
Lender may reasonably require; and


 


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


 


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5.1.10     Mortgage Recording Taxes.  Borrower represents that it has paid all
state, county and municipal recording and all other taxes imposed upon the
execution and recordation of the Mortgages.


 


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 reasonably
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 reasonable times during normal business hours upon
reasonable notice to examine such books, records and accounts at the office of
Borrower or any other Person maintaining such books, records and accounts and
to make such copies or extracts thereof as Lender shall desire.  After the occurrence and during the
continuance of an Event of Default, Borrower shall pay any out-of-pocket 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 a “Big Four” accounting firm or other independent
certified public accountant acceptable to Lender in accordance with GAAP (or
such other accounting basis reasonably acceptable to Lender) covering the
Properties 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) an unqualified opinion of a “Big
Four” accounting firm or other independent certified public accountant
reasonably acceptable to Lender, (ii) a schedule audited by such
independent certified public accountant reconciling Net Operating Income to Net
Cash Flow (the “Net
Cash Flow Schedule”), which shall itemize all adjustments made to
Net Operating Income to arrive at Net Cash Flow deemed material by such
independent certified public accountant and (iii) an Officer’s Certificate
certifying that, to such officer’s knowledge, each annual financial statement
presents fairly the financial condition and the results of operations of
Borrower and the Properties being reported upon and that such financial
statements have been prepared in accordance with GAAP and as of the date
thereof whether, to such officer’s knowledge, 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 until the earlier of the occurrence of a
Securitization or the first anniversary after the date hereof and, thereafter,
on or before forty five (45) days after the end of each calendar quarter, the
following items, accompanied by an Officer’s Certificate stating that, to such
officer’s knowledge, such items are true, correct, accurate in all material
respects and complete and fairly present the financial condition and


 


63





















 


results of the operations of Borrower and the Properties for the
applicable period (subject to normal year-end adjustments) as
applicable:  (i) a rent roll for the
subject month (or quarter, as applicable) (if Borrower or any Individual
Borrower shall enter into any Lease other than the Master Lease);
(ii) monthly (or quarterly, as applicable) and year-to-date
operating statements (including Capital Expenditures) prepared for each
calendar month (or quarter, as applicable), noting Net Operating Income, Gross
Income from Operations, and Operating Expenses (not including any contributions
to the Replacement Reserve Fund), and, upon Lender’s reasonable request, other
information necessary and sufficient to fairly represent the financial position
and results of operation of the Properties during such period, in form
reasonably satisfactory to Lender; (iii) a calculation reflecting the
annual Debt Service Coverage Ratio for the immediately preceding twelve (12)
month period (or such shorter period as may be applicable) as of the last day
of such month (or quarter, as applicable); and (iv) a Net Cash Flow
Schedule.  In addition, such Officer’s
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)           Intentionally
Omitted.


 


(e)           Intentionally
Omitted.


 


(f)            Any
reports, statements or other information required to be delivered under this
Agreement shall be delivered (i) in paper form, (ii) on a diskette,
and (iii) if requested by Lender and within the capabilities of Borrower’s
data systems without change or modification thereto, in electronic form and
prepared using a Microsoft Word for Windows or WordPerfect for Windows files
(which files may be prepared using a spreadsheet program and saved as word
processing files).  Borrower agrees that
Lender may disclose information regarding the Properties and Borrower that is
provided to Lender pursuant to this Section in connection with the
Securitization to such parties requesting such information in connection with
such Securitization.


 


5.1.12     Business and Operations.  Borrower will continue to engage in the
businesses presently conducted by it as and to the extent necessary for the
ownership, maintenance, management and operation of the Properties.  Borrower will qualify and maintain its
qualification to do business and will remain in good standing under the laws of
each jurisdiction as and to the extent 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 Mortgages and the
Assignments of Leases, 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.


 


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5.1.14     Costs of Enforcement.  In the event (a) that any Mortgage
encumbering any Individual Property is foreclosed in whole or in part or that
any such Mortgage is put into the hands of an attorney after the occurrence and
during the continuance of an Event of Default for collection, suit, action or
foreclosure, (b) of the foreclosure of any mortgage prior to or subsequent
to any Mortgage 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 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) Lender and Borrower each shall,
within ten (10) Business Days of written request from the other, furnish the
other with a statement, duly acknowledged and certified, setting forth
(i) the original principal amount of the Loan, (ii) the unpaid
principal amount of the Loan, (iii) the Applicable Interest Rate of the
Loan, (iv) the date installments of interest and/or principal were last
paid, (v) any offsets or defenses to the payment of the Debt or the
payment of the other obligations under the Loan Documents, if any, and
(vi) that the Note, this Agreement, the Mortgages and the other Loan
Documents are valid, legal and binding obligations and have not been modified
or if modified, giving particulars of such modification.


 


(b)           Borrower
shall deliver to Lender upon request, tenant estoppel certificates from each
commercial tenant leasing space at the Properties in form and substance
reasonably satisfactory to Lender provided that Borrower shall not be required
to deliver such certificates more frequently than once 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, satisfy and fulfill each and every
condition, covenant, term and provision of each Loan Document executed and
delivered by, or applicable to, Borrower, subject to all applicable notice,
grace and cure periods therein, 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 consent of Lender.


 


5.1.18     Intentionally
Omitted.


 


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.


 


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5.1.20     Leasing Matters.  Any Leases with respect to an Individual
Property executed after the date hereof shall be approved by Lender, which
approval shall not be unreasonably withheld. 
Upon request, Borrower shall furnish Lender with executed copies of all
Leases.  All renewals of Leases and all
proposed Leases shall provide for rental rates comparable to existing local
market rates.  All Leases executed after
the date hereof shall provide that they are subordinate to the Mortgage
encumbering the applicable Individual Property and that the lessee agrees to
attorn to Lender or any purchaser at a sale by foreclosure or power of
sale.  Borrower (i) shall observe
and perform the obligations imposed upon the lessor under the Leases in a
commercially reasonable manner; (ii) shall enforce and may amend or
terminate the terms, covenants and conditions contained in the Leases upon the
part of the lessee thereunder to be observed or performed in a commercially
reasonable manner and in a manner not to impair the value of the Individual
Property involved except that no termination by Borrower or acceptance of
surrender by a tenant of any Leases shall be permitted unless by reason of a
tenant default and then only in a commercially reasonable manner to preserve
and protect the Individual Property; (iii) shall not collect any of the
rents more than one (1) month in advance (other than security deposits);
(iv) shall not execute any other assignment of lessor’s interest in the
Leases or the Rents (except as contemplated by the Loan Documents);
(v) shall not alter, modify or change the terms of the Leases in a manner
inconsistent with the provisions of the Loan Documents; and (vi) shall
execute and deliver at the request of Lender all such further assurances,
confirmations and assignments in connection with the Leases as Lender shall from
time to time reasonably require. 
Notwithstanding anything to the contrary contained herein, Borrower
shall not enter into a lease of all or substantially all of any Individual
Property without Lender’s prior consent.


 


5.1.21     Alterations.  Borrower shall obtain Lender’s prior consent
to any alterations to any Improvements, which consent shall not be unreasonably
withheld or delayed.  Notwithstanding the
foregoing, Lender’s consent shall not be required in connection with any
alterations that will not have a material adverse effect on any Individual
Borrower’s financial condition, the value of the applicable Individual Property
or the Net Operating Income, provided that such alterations with respect
to the applicable Individual Property (a) are made in connection with
tenant improvement work performed pursuant to the terms of any Lease executed
on or before the date hereof, (b) do not adversely affect 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, at the applicable Individual Property and the aggregate cost
thereof does not exceed One Million Dollars ($1,000,000) or (c) are
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 due and payable 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) shall at any time exceed One Million Dollars
($1,000,000) (the “Threshold
Amount”), 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, if a
Securitization has occurred, 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 to
any Securities or any class thereof in connection with any Securitization, or
(D) a completion and performance bond or an irrevocable letter of credit
(payable on sight draft only) issued by a financial institution having a rating
by S&P of not less


 


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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, if a Securitization has occurred, 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 to any Securities or any class thereof 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) over
the Threshold Amount and, subject to the terms of Section 7.5, Lender
shall (or, with respect to a letter of credit or performance bond, may) apply
such security from time to time to pay for such alterations in accordance with
the procedures and requirements set forth in Section 7.3.2 relating
to the disbursement of funds from the Replacement Reserve Account.


 


5.1.22     Operation of Property.  Borrower
shall cause the Properties to be operated, in all material respects, in
accordance with the Master Lease.  In the
event that the Master Lease expires or is terminated, Borrower shall promptly
enter into a Replacement Management Agreement with a Qualified Manager.


 


5.1.23     Special Purpose Entity/Separateness.  All of
the assumptions made in any non-consolidation opinion required to be
delivered after the date hereof in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited
to, any exhibits attached thereto, will have been and shall be true and correct
in all respects.  Each Individual
Borrower will have complied and will comply with all of the assumptions made
with respect to such Individual Borrower in any Additional Insolvency
Opinion.  Each entity other than any
Individual Borrower with respect to which an assumption shall be made in any
Additional Insolvency Opinion will have complied and will comply with all of
the assumptions made with respect to it in any Additional Insolvency Opinion.


 


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 Mortgages 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.  (a) Borrower
shall not, without Lender’s prior consent (which consent may be conditioned or
withheld in Lender’s sole discretion): 
(i) surrender, terminate or cancel the Master Lease;
(ii) reduce or consent to the reduction of the term of the Master Lease;
(iii) decrease or consent to the decrease of the amount of any Rent or
other charges under the Master Lease; or (iv) otherwise modify, change,
supplement, alter or amend, or waive or release any of its rights and remedies
under, the Master Lease.


 


(b)           Following
the occurrence and during the continuance of a Default or Event of Default,
Borrower shall not exercise any rights, make any decisions, grant any approvals
or otherwise take any action under the Master Lease without the prior consent
of Lender, which consent may be conditioned or withheld in Lender’s sole
discretion.


 


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5.2.2       Liens.  Borrower shall not 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 or delinquent.


 


5.2.3       Dissolution.  No Individual Borrower shall (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 its Individual Property, (c) transfer,
lease or sell, in one transaction or any combination of transactions, the
assets or all or substantially all of its properties or assets, except to the
extent permitted by the Loan Documents, or (d) modify, amend, waive or
terminate its organizational documents or its qualification and good standing
in any jurisdiction.


 


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


 


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


 


5.2.6       Zoning.  Except in connection with the release of an Out
Parcel or a Partial Release Parcel in accordance with Section 2.5.3 and Section
2.5.4, respectively, 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. 
Borrower shall not 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.


 


5.2.7       Intentionally Omitted.


 


5.2.8       Principal Place of Business and Organization.  Borrower shall not change its principal place
of business set forth in the introductory paragraph of this Agreement without
first giving Lender thirty (30) days prior notice.  Borrower shall not change the place of its
organization as set forth in Section 4.1.28 without the consent of
Lender, which consent shall not be unreasonably withheld.  Upon Lender’s request, Borrower shall execute
and deliver additional financing statements, security agreements and other
instruments which may be necessary to effectively evidence or perfect Lender’s
security interest in the Property as a result of such change of place of
organization.


 


5.2.9       ERISA.  (a) Borrower shall not
engage in any transaction which would cause any obligation hereunder or the
exercise by Lender of any of its rights under the Note, this 


 


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Agreement or the other Loan Documents to be a non-exempt (under a
statutory or administrative class exemption) prohibited transaction under
ERISA.


 


(b)           Borrower
further covenants and agrees to deliver to Lender such certifications or other
evidence from time to time throughout the term of the Loan, as requested by
Lender in its reasonable discretion, that (i) no Individual Borrower is 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; (ii) no Individual Borrower is subject to any state
statute regulating investments of, or fiduciary obligations with respect to,
governmental plans; and (iii) one or more of the following circumstances
is true:


 


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


 


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


 


(C)           Individual
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).


 


5.2.10     Transfers.  (a) Borrower
acknowledges that Lender has examined and relied on the experience of Borrower
and its general partners, members, principals and (if Borrower is a trust)
beneficial owners in owning and operating properties such as the Properties in
agreeing to make the Loan, and will continue to rely on Borrower’s ownership of
the Properties as a means of maintaining the value of the Properties as
security for repayment of the Debt and the performance of the obligations
contained in the Loan Documents. 
Borrower acknowledges that Lender has a valid interest in maintaining
the value of the Properties so as to ensure that, should Borrower default in
the repayment of the Debt or the performance of the obligations contained in
the Loan Documents, Lender can recover the Debt by a sale of the Properties.


 


(b)           Without
the prior consent of Lender and except to the extent otherwise set forth in
this Section 5.2.10, Borrower shall not, and shall not permit any
Restricted Party to, (i) sell, convey, mortgage, grant, bargain, encumber,
pledge, assign, grant options with respect to, or otherwise transfer or dispose
of (directly or indirectly, voluntarily or involuntarily, by operation of law
or otherwise, and whether or not for consideration or of record) any Individual
Property or any part thereof or any legal or beneficial interest therein or
(ii) permit a Sale or Pledge of an interest in any Restricted Party
(collectively, a “Transfer”),
other than (A) pursuant to Leases of space in the Improvements to tenants
in accordance with the provisions of Section 5.1.20 hereof; and
(B) Permitted Encumbrances.


 


(c)           Subject
to subclauses (A) and (B) of Section 5.2.10(b), a Transfer
shall include, but not be limited to, (i) an installment sales agreement
wherein any Individual Borrower agrees to sell its Individual Property, or any
part thereof, for a price to be paid in installments; (ii) an agreement by
any Individual Borrower leasing all or a substantial part of its Individual
Property for other than actual occupancy by a space tenant thereunder, or a
sale,


 


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assignment or other transfer of, or the grant of a security interest
in, its right, title and interest in and to any Leases or any Rents;
(iii) if a Restricted Party is a corporation, any merger, consolidation or
Sale or Pledge of such corporation’s stock or the creation or issuance of new
stock; (iv) if a Restricted Party is a limited or general partnership or
joint venture, any merger or consolidation or the change, removal, resignation
or addition of a general partner or the Sale or Pledge of the partnership
interest of any general partner or any profits or proceeds relating to such
partnership interest, or the Sale or Pledge of limited partnership interests or
any profits or proceeds relating to such limited partnership interest or the
creation or issuance of new limited partnership interests; (v) if a
Restricted Party is a limited liability company, any merger or consolidation or
the change, removal, resignation or addition of a managing member or non-member
manager (or if no managing member, any member) or the Sale or Pledge of the
membership interest of a managing member (or if no managing member, any member)
or any profits or proceeds relating to such membership interest, or the Sale or
Pledge of non-managing membership interests or the creation or issuance
of new non-managing membership interests; or (vi) if a Restricted
Party is a trust or nominee trust, any merger, consolidation or the Sale or
Pledge of the legal or beneficial interest in a Restricted Party or the creation
or issuance of new legal or beneficial interests.


 


(d)           Notwithstanding
the provisions of this Section 5.2.10, the following transfers shall not
be deemed to be a Transfer:  (i) the
pledge, sale or transfer, in one or a series of transactions, of not more than
forty-nine percent (49%) of the stock in a Restricted Party; provided, however,
no such pledges, sales or transfers shall result in the change of control in
the Restricted Party, and as a condition to each such pledge, sale or transfer,
Lender shall receive not less than ten (10) Business Days prior notice of such
pledge, proposed sale or transfer, (ii) the pledge, sale or transfer, in
one or a series of transactions, of not more than forty-nine percent (49%) of
the limited partnership interests or non-managing or membership interests (as
the case may be) in a Restricted Party; provided, however, no
such pledges, sales or transfers shall result in the change of control in the
Restricted Party, and as a condition to each such pledge, sale or transfer,
Lender shall receive not less than ten (10) Business Days prior notice of such
proposed pledge, sale or transfer, and (iii) the sale, transfer or
issuance of not more than eighty-five percent (85%) of the beneficial ownership
interests in Guarantor, provided that (A) such beneficial ownership
interests are securities listed on the New York Stock Exchange or such other
nationally-recognized stock exchange, (B) no such sales or transfers
shall result in the change of control in Guarantor, and (C) if required by
Lender, the delivery of a nonconsolidation opinion reflecting the proposed
transfer satisfactory in form and substance to Lender, and provided, further,
that the subsequent sale, transfer, exchange or trading of such securities
shall not be deemed a Transfer.


 


(e)           Lender’s
consent to a one (1) time Transfer of the Properties shall not be
unreasonably withheld provided that Lender receives thirty (30) days prior
written notice of such Transfer and no Event of Default has occurred and is
continuing, and further provided that the following additional requirements are
satisfied:


 


(i)            Borrower
shall pay Lender a transfer fee equal to one-half of one percent (0.50%) of the
outstanding principal balance of the Loan at the time of such Transfer;


 


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(ii)           Borrower
shall pay any and all reasonable out-of-pocket costs incurred in
connection with such Transfer (including, without limitation, Lender’s
reasonable counsel fees and disbursements and all recording fees, title
insurance premiums and mortgage and intangible taxes and the fees and expenses
of the Rating Agencies pursuant to clause (x) below);


 


(iii)          The
proposed transferee (the “Assignee”) or
Assignee’s Principals must have demonstrated expertise in owning and operating
properties similar in location, size, class and operation to the Properties,
which expertise shall be reasonably determined by Lender;


 


(iv)          Assignee
and Assignee’s Principals shall, as of the date of such Transfer, have an
aggregate net worth and liquidity reasonably acceptable to Lender;


 


(v)           Assignee
and Assignee’s Principals and all other entities which, as of the date of such
Transfer, will have any equity interest in Assignee and are owned or Controlled
directly or indirectly by Assignee’s Principals (“Assignee Related Entities”) must
not have been a debtor in any proceeding under the Bankruptcy Code or any other
Federal or state bankruptcy or insolvency law within seven (7) years prior
to the date of the proposed Transfer;


 


(vi)          Assignee
shall assume all of the obligations of Borrower under the Loan Documents 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;


 


(vii)         There
shall be no material litigation or regulatory action pending or threatened
against Assignee, Assignee’s Principals or Assignee Related Entities which is
not reasonably acceptable to Lender;


 


(viii)        Assignee,
Assignee’s Principals and Assignee Related Entities shall not have defaulted
under its or their obligations with respect to any other Indebtedness in a
manner which is not reasonably acceptable to Lender;


 


(ix)           Assignee
and Assignee’s Principals must be able to satisfy all the representations and
covenants set forth in Sections 4.1.30 and 5.2.9 hereof, no
Default or Event of Default shall otherwise occur as a result of such Transfer,
and Assignee and Assignee’s Principals shall deliver (A) all
organizational documentation reasonably requested by Lender, which shall be
reasonably satisfactory to Lender and (B) all certificates, agreements and
covenants reasonably required by Lender;


 


(x)            If
a Securitization shall have occurred, Lender shall have received written
confirmation from the applicable Rating Agencies that such Transfer shall not
result in a downgrade, withdrawal or qualification of the then current ratings
of the Securities or any class thereof;


 


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(xi)           Borrower
or Assignee, at its sole cost and expense, shall deliver to Lender an
Additional Insolvency Opinion reflecting such Transfer satisfactory in form and
substance to Lender;


 


(xii)          Prior
to any release of Guarantor, one (1) or more substitute guarantors
reasonably acceptable to Lender shall have assumed all of the liabilities and
obligations of Guarantor under the Guaranty and Environmental Indemnity
executed by Guarantor or execute a replacement guaranty and environmental
indemnity reasonably satisfactory to Lender; and


 


(xiii)         Borrower
shall deliver, at its sole cost and expense, an endorsement to the Title
Insurance Policies, as modified by the assumption agreement, as a valid first
lien on the Properties and naming the Assignee as owner of the Properties,
which endorsement shall insure that, as of the date of the recording of the
assumption agreement, the Properties shall not be subject to any additional
exceptions or liens other than those contained in the relevant Title Insurance
Policies issued on the date hereof and the Permitted Encumbrances relating
thereto.


 


Immediately
upon a Transfer to such Assignee and the satisfaction of all of the above
requirements, the named Borrower and Guarantor herein shall be released from
all liability under this Agreement, the Note, the Mortgages and the other Loan
Documents accruing after such Transfer. 
The foregoing release shall be effective upon the date of such Transfer,
but Lender agrees to provide written evidence thereof reasonably requested by
Borrower.


 


(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 Borrower’s Transfer without Lender’s
consent.  This provision shall apply to
every Transfer regardless of whether voluntary or not, or whether or not Lender
has consented to any previous Transfer.


 


VI.           INSURANCE; CASUALTY; CONDEMNATION; REQUIRED REPAIRS


 


Section
6.1.           Insurance.  Lender acknowledges that the Policies
delivered by Borrower to Lender as of the date hereof comply in all respects
with the requirements and provisions of this Section 6.1.


 


(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; (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


 


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excess of Two
Hundred Fifty Thousand and No/100 Dollars ($250,000.00) for all such insurance
coverage; and (D) containing an “Ordinance or Law Coverage” or “Enforcement”
endorsement if any of the Improvements or the use of the Individual Property
shall at any time constitute legal non-conforming structures or uses.  In addition, Borrower shall obtain or cause
to be obtained:  (x) if any portion
of the Improvements is currently or at any time in the future located in a
federally designated “special flood hazard area”, flood hazard insurance in an
amount equal to the lesser of (1) the outstanding principal balance of the
Note or (2) the maximum amount of such insurance available under the
National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973
or the National Flood Insurance Reform Act of 1994, as each may be amended; provided,
however, that no flood insurance shall be required with respect to any
such Improvements if the deductible for such coverage would exceed the value of
the Improvement shall require; (y) earthquake insurance in an amount equal
to one times probable maximum loss and in form and substance reasonably
satisfactory to Lender in the event the Individual Property is located in an
area with a high degree of seismic activity and (z) coastal windstorm
insurance in an amount equal to one hundred percent (100%) of the full
replacement cost and in form and substance reasonably satisfactory to Lender in
the event the Individual Property is located in any coastal region, provided
that the insurance pursuant to clauses (x), (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
combined limit of not less than Two Million and No/100 Dollars ($2,000,000) in
the aggregate and One Million and No/100 Dollars ($1,000,000) per occurrence;
(B) to continue at not less than the aforesaid limit until reasonably
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 8 of the Mortgages to the extent the same is
generally available under then standard commercial general liability insurance
policies;


 


(iii)          continuing
expense coverage under the all risk insurance required to be provided under subsection
(i) above (A) with loss payable to Lender, but only to the extent of
the portion of the rent under the Master Lease applicable to the Individual
Property affected by such casualty; (B) covering all risks required to be
covered by the insurance provided for in subsection (i) above; (C) containing
an extended period of indemnity endorsement which provides that after the
physical loss to the Improvements and Personal Property has been repaired, the
continued loss of income will be insured until such income either returns to
the same level it was at prior to the loss, or the expiration of 365 days 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; and (D) in an amount
equal to one hundred percent (100%) of the projected gross income from each
Individual Property for a period of twenty-four (24) months from the date
of such Casualty (assuming such


 


73





















 


Casualty had not
occurred) and notwithstanding that the policy may expire at the end of such
period.  The amount of such continuing
expense coverage under the all risk insurance shall be determined prior to the
date hereof and at least once each year thereafter based on Borrower’s
reasonable estimate of the gross income from each Individual Property for the
succeeding twenty-four (24) month period. 
Notwithstanding anything to the contrary in Section 2.6 hereof,
all proceeds payable to Lender pursuant to this subsection shall be held by
Lender and shall be applied at Lender’s sole discretion to the obligations
secured by the Loan Documents from time to time due and payable hereunder or
under the other Loan Documents; provided, however, that nothing
herein contained shall be deemed to relieve Borrower of its obligations to pay
the obligations secured by the Loan Documents on the respective dates of
payment provided for in the Note and the other Loan Documents except to the
extent such amounts are actually paid out of the proceeds of such continuing
expense coverage under the all risk 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)           if
an Individual Property includes commercial property, worker’s compensation
insurance with respect to any employees of Borrower, as required by any
Governmental Authority or Legal Requirement;


 


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


 


(vii)         umbrella
liability insurance in an amount not less than Fifty Million and No/100 Dollars
($50,000,000) per occurrence 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 One Million and No/100 Dollars ($1,000,000);


 


(ix)           intentionally
omitted;


 


(x)            the
commercial property insurance and continuing expense coverage under the all
risk insurance required under Sections 6.1(a) above shall cover perils
of terrorism and acts of terrorism and Borrower shall maintain commercial
property insurance and continuing expense coverage for loss resulting from
perils and acts of terrorism on terms


 


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(including
amounts) consistent with those required under Sections 6.1(a) above at
all times during the term of the Loan; and


 


(xi)           upon
not less than sixty (60) days’ 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)           All
insurance provided for in Section 6.1(a) shall be obtained under valid
and enforceable policies (collectively, the “Policies” or in the singular,
the “Policy”)
satisfying the requirements of Section 6.1(a).  The Policies shall be issued by financially
sound and responsible insurance companies authorized to do business in the
State and having a claims paying ability rating of “A” or better (and the
equivalent thereof) by at least two (2) of the Rating Agencies rating the
Securities (one of which shall be S&P if they are rating the Securities and
one of which will be Moody’s if they are rating the Securities), or if only one
Rating Agency is rating the Securities, then only by such Rating Agency (provided,
however, if five (5) or more insurance companies issue the Policies
required hereunder, then the foregoing required insurance company rating shall
be deemed to be satisfied if the primary insurance provider has, and at least
sixty percent (60%) of the overall applicable insurance coverages required
hereunder are provided by insurance companies having, a credit rating of “A” or
better (and the equivalent thereof) by at least two (2) of the Rating Agencies
rating the Securities (one of which shall be S&P if they are rating the
Securities and one of which will be Moody’s if they are rating the Securities),
or if only one Rating Agency is rating the Securities, then only by such Rating
Agency) and the balance of the applicable insurance coverages represented by
the Policies required hereunder are provided by insurance companies having a
credit rating of “BBB+” or better (and the equivalent thereof) by at least two
(2) of the Rating Agencies rating the Securities (one of which shall be S&P
if they are rating the Securities and one of which will be Moody’s if they are
rating the Securities), or if only one Rating Agency is rating the Securities,
then only by such Rating Agency).  If a
Securitization occurs, the foregoing required insurance company rating by a
Rating Agency not rating any Securities shall be disregarded.  Notwithstanding the foregoing, Borrower shall
be permitted to maintain the Policies required hereunder with insurance
companies which do not meet the foregoing requirements (an “Otherwise Rated Insurer”), provided Borrower obtains a “cut-through”
endorsement (that is, an endorsement which permits recovery against the
provider of such endorsement) with respect to any Otherwise Rated Insurer from
an insurance company which meets the claims paying ability ratings required
above.  The Policies described in Section
6.1(a) (other than those strictly limited to liability protection) shall
designate Lender as loss payee.  Not less
than ten (10) days prior to the expiration dates of the Policies theretofore
furnished to Lender, certificates of insurance evidencing the Policies
accompanied by evidence satisfactory to Lender of payment of the premiums due
thereunder (the “Insurance
Premiums”), shall be delivered by Borrower to Lender.


 


(c)           Any
blanket insurance Policy shall provide for coverages, deductibles and limits
(and/or sub-limits) such that any and all claims with respect to any Individual
Property which could be made under a separate Policy satisfying the
requirements of Section 6.1 and insuring only such Individual Property
may be made under such blanket insurance Policy.


 


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


 


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


 


(i)            but
only to the extent contained in the Policies (including endorsements thereto)
provided to Lender as of the date hereof or, with respect to other Policies
obtained by or on behalf of Borrower after the date hereof, to the extent such
clauses or endorsements are generally available, no act or negligence of
Borrower, or anyone acting for any Individual 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,
except for the willful misconduct of Lender in violation of the conditions of
such Policy, shall in any way affect the validity or enforceability of the
insurance insofar as Lender is concerned;


 


(ii)           the
Policies shall not be materially changed (other than to increase the coverage
provided thereby) or canceled without at least thirty (30) days’ notice (or ten
(10) days’ written notice, in the case of non-payment of premium) to Lender and
any other party named therein as an additional insured;


 


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


 


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


 


(f)            If
at any time the Policies are not in full force and effect, Lender shall have
the right 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 Mortgages and shall bear interest at the Default Rate.


 


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 Restoration of the Individual Property as nearly as possible to the
condition (or, subject to Lender’s reasonable consent, substantially the same
condition) the Individual Property was in immediately prior to such Casualty
(so long as applicable zoning laws in effect at the time permit such
rebuilding), with such material alterations as may be reasonably approved by
Lender and otherwise in accordance with Section 6.4.  Borrower shall pay all costs of such


 


76





















 


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.  In addition, Lender may participate in any
settlement discussions with any insurance companies with respect to any
Casualty in which the Net Proceeds or the costs of completing the Restoration
are equal to or greater than One Million Dollars ($1,000,000) and Borrower
shall deliver to Lender all instruments required by Lender to permit such
participation.  Notwithstanding anything
to the contrary contained in this Section 6.2, in the event of a
Casualty which destroys or otherwise renders unfit for use and occupancy fifty
percent (50%) or more of the floor area of the Improvements on the affected
Individual Property, Borrower may obtain a release of the Individual Property
from the lien of the applicable Mortgage and related Loan Documents by paying
to Lender the Adjusted Release Amount for such Individual Property (even if
such prepayment occurs prior to the Lockout Release Date), in which case no
Prepayment Premium shall be due, and upon the effective date of such release,
Lender shall pay over to Borrower such Net Proceeds in respect of such
Casualty.  Except as otherwise set forth
in the immediately preceding sentence, such release of the affected Individual
Property shall be subject to the satisfaction of each of the conditions set
forth in Section 2.5.1 hereof.


 


Section
6.3.           Condemnation.  Borrower shall promptly give Lender notice of
the actual or threatened commencement of any proceeding for the Condemnation 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 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 (to the extent permitted by applicable zoning laws in effect at the
time) to be of substantially the same character as prior to such Condemnation
to the fullest extent reasonably possible and otherwise comply with the
provisions of Section 6.4. 
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 any Individual
Property:


 


(a)           If
the Net Proceeds shall be less than One Million Dollars ($1,000,000) and the
costs of completing the Restoration shall be less than One Million Dollars
($1,000,000), 


 


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the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided
that no Event of Default shall have occurred and be continuing.


 


(b)           If
the Net Proceeds are equal to or greater than One Million Dollars ($1,000,000)
or the costs of completing the Restoration is equal to or greater than One
Million Dollars ($1,000,000), the Net Proceeds will be held by Lender and
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), (ix)
and (x) 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 upon the
approval of Lender in its sole, but reasonable, discretion that 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 fifty percent
(50%) of the total floor area of the Improvements on the Individual Property
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 Individual Property is taken,
and such land is located along the perimeter or periphery of the Individual
Property, and no portion of the Improvements is located on such land;


 


(C)           Intentionally
Omitted;


 


(D)          the
Master Lease shall remain in full force and effect during and after the
completion of the Restoration, notwithstanding the occurrence of such Casualty
or Condemnation, as the case may be;


 


(E)           Borrower
shall commence the Restoration as soon as reasonably practicable (but in no
event later than sixty (60) days after such Casualty or Condemnation occurs)
(subject to excusable delays due to acts of god, governmental restrictions,
stays, judgments, orders, decrees, enemy actions, civil commotion, fire,
casualty, strikes, work stoppages, shortages of labor or materials, other
causes beyond the reasonable control of Borrower, and delays in the claims
adjustment process outside the control of Borrower) and shall diligently pursue
the same to completion as required under Section 6.2 hereof;


 


(F)           Lender
shall be satisfied that any operating deficits, including all scheduled
payments of interest under the Note, which will be incurred with respect to the
Individual Property as a result of the occurrence of such Casualty or
Condemnation will 


 


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be covered out of (1) the Net Proceeds,
(2) the continuing expense coverage referred to in Section 6.1(a)(iii),
if applicable, or (3) by other funds of Borrower;


 


(G)           Lender
shall be satisfied that the Restoration will be completed on or before the
earliest to occur of (1) the Maturity Date, (2) the earliest date
required for such completion under the terms of any Leases, (3) such time
as may be required under applicable Legal Requirements or (4) the
expiration of the insurance coverage referred to in Section 6.1(a)(iii);


 


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


 


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


 


(J)            such
Casualty or Condemnation, as applicable, does not result in the loss of access
to the Individual Property or the related Improvements, except as such access
may be impaired or impacted during construction;


 


(K)          the
Debt Service Coverage Ratio for the affected Individual Property, after giving
effect to the Restoration, shall be equal to or greater than the Closing Date
DSCR;


 


(L)           the
Loan-to-Value Ratio (using the Pro Rata Release Amount) for the effected
Individual Property, after giving effect to the Restoration, shall be not
greater than the Loan-to-Value Ratio immediately preceding the Closing Date;


 


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


 


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


 


(ii)           The
Net Proceeds shall be held by Lender in an Eligible Account, shall be invested
in Permitted Investments 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 reasonably 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 or from
any Casualty Retainage 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
of any nature whatsoever on the Individual Property which have not either


 


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been fully bonded
to the reasonable satisfaction of Lender and discharged of record or in the
alternative fully insured to the reasonable satisfaction of Lender by the title
company issuing the Title Insurance Policies. 
If a dispute exists as to a portion of the requested Net Proceeds to be
disbursed, but not as to the balance of the requested Net Proceeds to be
disbursed, then, provided Borrower advances its own funds as to the
disputed portion, Lender shall advance such balance of requested Net Proceeds
in accordance with this Section 6.4(b).


 


(iii)          All
plans and specifications required in connection with the Restoration of an
Individual Property, the cost of which is reasonably estimated by Lender to
exceed One Million and No/100 Dollars ($1,000,000) (a “Substantial Restoration”), shall
be subject to prior review and acceptance in all material respects by Lender
and by an independent consulting engineer selected by Lender and approved by
Borrower (the “Casualty
Consultant”), such approval (A) not to be unreasonably withheld or
delayed and (B) to be deemed granted if Lender shall not have disapproved same
in writing within fifteen (15) Business Days after Borrower’s request for
approval, so long as the written request to Lender for approval contains a
legend clearly marked in not less than fourteen (14) point bold face type,
underlined, in all capital letters “REQUEST DEEMED APPROVED IF NO RESPONSE WITHIN 15
BUSINESS DAYS”.  Upon
the occurrence and during the continuation of an Event of Default, Lender shall
have the use of the plans and specifications and all permits, licenses and
approvals required or obtained in connection with the Restoration.  The identity of the contractors, subcontractors
and materialmen engaged in the Restoration, as well as the contracts under
which they have been engaged, shall be subject to prior review and approval by
Lender and the Casualty Consultant, such approval (1) not to be
unreasonably withheld or delayed and (2) to be deemed granted if Lender shall
not have disapproved same in writing within ten (10) Business Days after
Borrower’s request for approval, so long as the written request to Lender for
approval contains a legend clearly marked in not less than fourteen (14) point
bold face type, underlined, in all capital letters “REQUEST DEEMED APPROVED IF NO RESPONSE
WITHIN 10 BUSINESS DAYS”. 
All reasonable 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”
as used in this Section 6.4(b) shall mean an amount equal to the greater
of (i) the amount permitted to be held back under the applicable contract
and (ii) ten percent (10%) (or, five percent (5%) after fifty percent
(50%) of the work to be performed under the applicable contract has been
completed as certified by the Casualty Consultant) of the costs actually
incurred for work under the applicable contract 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, be less than the amount actually held back by Borrower
from contractors, subcontractors and materialmen engaged in the
Restoration.  The Casualty Retainage 


 


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shall not be
released until the Casualty Consultant certifies to Lender that the Restoration
has been substantially completed in accordance with the provisions of this Section
6.4 and that all approvals necessary for the re-occupancy and use of the
Individual Property (other than any work to be undertaken by a Tenant pursuant
to a Lease, if any, which has been reviewed and approved by Lender) have been
obtained from all appropriate Governmental Authorities and quasi-governmental
authorities, and Lender receives evidence reasonably satisfactory to Lender
that the costs of the Restoration have been paid in full or will be paid in
full out of the 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 such contractor, subcontractor or
materialman has satisfactorily completed all work (other than minor punch-list
items) and has supplied all materials in accordance with the provisions of such
contractor’s, subcontractor’s or materialman’s contract, and such contractor,
subcontractor or materialman delivers the lien waivers and evidence of payment in
full of all sums due to such contractor, subcontractor or materialman as may be
reasonably requested by Lender or by the title company issuing the Title
Insurance Policy.  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 such contractor, subcontractor or materialman.


 


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


 


(vi)          If
at any time the Net Proceeds or the undisbursed balance thereof shall not, in
the reasonable opinion of Lender in consultation with the Casualty Consultant,
be sufficient to pay in full the balance of the costs which are estimated by
the Casualty Consultant to be incurred in connection with the completion of the
Restoration, Borrower shall deposit the amount of the deficiency (the “Net Proceeds
Deficiency”), in cash or in the form of a letter of credit
acceptable to Lender, issued by a U.S. bank (with a branch in New York) that is
an Eligible Institution (the “Net Proceeds Deficiency Letter of Credit”), with Lender
before any further disbursement of the Net Proceeds shall be made.  The Net Proceeds Deficiency deposited with
Lender (and the proceeds of any drawings under such letter of credit) 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 (or the proceeds of any drawings
under the Net Proceeds Deficiency Letter of Credit) (including any interest
earned thereon) 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.


 


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(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 in accordance with Section 2.4.2
hereof toward the payment of the Debt, whether or not then due and payable, in
such order, priority and proportions as Lender in its sole discretion shall
deem proper, 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 approve, in its
discretion.


 


(d)           In
the event of foreclosure of the Mortgage 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.


 


VII.         RESERVE
FUNDS


 


Section 7.1.           Required
Repair Funds.


 


7.1.1       Deposits.  Borrower shall perform the repairs at the
Properties, as more particularly set forth on Schedule III hereto (such
repairs hereinafter collectively referred to as “Required Repairs”).  Borrower shall complete the Required Repairs
at each Individual Property by the required deadline for each repair as set
forth on Schedule III.  Upon
the occurrence and during the continuance 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 reduction 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.  On the Closing Date, Borrower
shall deposit with Lender the amount for each Individual Property set forth on
such Schedule III hereto to perform the Required Repairs for such
Individual Property multiplied by one hundred twenty-five percent (125%).  Amounts so deposited with Lender shall be
held by Lender in accordance with Section 7.5 hereof.  Amounts so deposited shall hereinafter be
referred to as Borrower’s “Required Repair Fund” and the account in which such amounts
are held shall hereinafter be referred to as Borrower’s “Required Repair
Account.”


 


7.1.2       Release of Required Repair Funds.  Lender shall disburse to Borrower, or at
Borrower’s direction, the Master Tenant, the Required Repair Funds from the
Required Repair Account from time to time, but not more frequently than once in
any thirty (30) day period, upon satisfaction by Borrower of each of the
following conditions:  (a) Borrower shall
submit a written request for payment to Lender at least ten (10) Business 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 Event of Default shall
exist and remain uncured, (c) Lender shall have received an Officer’s
Certificate (i) accompanied by a copy of any license, permit or other
approval by any Governmental Authority required to commence and/or complete the
Required Repairs,


 


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(ii) identifying, to such officer’s knowledge, each Person that
supplied materials or labor in connection with the Required Repairs performed
at such Individual Property to be funded by the requested disbursement, and
(iii) stating that, to such officer’s knowledge, each such Person has been
paid in full or will be paid in full upon such disbursement, such Officer’s
Certificate to be accompanied by lien waivers or other evidence of payment
satisfactory to Lender, and (d) 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
in good an workmanlike manner and in accordance with all applicable federal,
state and local laws, rules and regulations and are paid for or will be paid
upon such disbursement to Borrower. 
Lender shall not be required to make disbursements from the Required
Repair Account with respect to any Individual Property unless such requested
disbursement is in an amount greater than $5,000 (or a lesser amount if the
total amount in the Required Repair Account is less than $5,000, in which case
only one disbursement of the amount remaining in the account shall be made) and
such disbursement shall be made only upon satisfaction of each condition
contained in this Section 7.1.2. 
Upon completion of all Required Repairs, provided that no monetary
Default or Event of Default shall  have
occurred and be continuing, Borrower shall be entitled to the then remaining
balance in the Required Repairs Account and Lender shall so disburse same upon Borrower’s written request
therefor.


 


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 reasonably
estimates will be payable during the next ensuing twelve (12) months in order
to accumulate in the Tax and Insurance Escrow Fund sufficient funds to pay all
such Taxes at least ten (10) Business Days prior to their respective due dates,
and (b) one-twelfth of the Insurance Premiums that Lender estimates
will be payable for the renewal of the coverage afforded by the Policies upon
the expiration thereof in order to accumulate with Lender sufficient funds to
pay all such Insurance Premiums at least ten (10) Business Days prior to the
expiration of the Policies (said amounts in subclauses (a) and (b) above
hereinafter called the “Tax and Insurance Escrow Fund”).  The Tax and Insurance Escrow Fund and the
Monthly Debt Service Payment Amount 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 Section 5.1.2
hereof and under the Mortgages.  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 Section 5.1.2 hereof, then
after each release of an Individual Property or a Partial Release Parcel
pursuant to Section 2.5.1 or Section 2.5.4 hereof, as
applicable, Lender shall reassess the amount necessary to be deposited in the
Tax and Insurance Escrow Fund for the succeeding period, which calculation
shall take into account any such excess amounts remaining in the Tax and
Insurance Escrow Funds.  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 subclauses (a) and (b) above, Lender shall notify



 


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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 the due date of the Taxes
and/or thirty (30) days prior to expiration of the Policies, as the case may
be.  Notwithstanding anything to the
contrary contained herein, payments into the Tax and Insurance Escrow Fund
shall be subject to adjustment, if any, pursuant to the last paragraph of Section 2.5.1
hereof.


 


Section
7.3.           Replacements and
Replacement Reserve.


 


7.3.1       Replacement Reserve Fund.  Borrower shall pay to Lender on each Payment
Date one-twelfth (1/12) of $856,430, which is the amount (as the same may
be adjusted as hereinafter provided, the “Replacement Reserve Monthly Deposit”)
reasonably estimated by Lender in its sole but good faith discretion to be due
for replacements and repairs required to be made to the Properties during the
calendar year (collectively, the “Replacements”) and which amount shall be subject to
adjustment, if any, pursuant to the last paragraph of Section 2.5.1  Section
2.5.4 and Section 2.8 hereof and the terms set forth in this Section
7.3.1.  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.”  Notwithstanding
anything to the contrary contained herein, Borrower shall have no obligation to
make any Replacement Reserve Monthly Deposit at any time that the amounts on
deposit in the Replacement Reserve Account are equal to the product of
(a) $0.175 per square foot and (b) the total floor area of the
Improvements at the Properties then encumbered by the Mortgages.  If an Individual Property is released from
the Lien of its related Mortgage in accordance with Section 2.5.1
hereof, any amount held in the Replacement Reserve Account and allocated for
such Individual Property shall be retained in the Replacement Reserve Fund and
Lender shall, following the release of such Individual Property, adjust the
amount of the Replacement Reserve Monthly Deposit, which adjustment shall take
into account the amount, if any, remaining in the Replacement Reserve Account
allocated to the Individual Property so released and the remaining Properties
after giving effect to such release.


 


7.3.2       Disbursements from Replacement Reserve Account.  Lender shall disburse to Borrower, or at Borrower’s
direction, the Master Tenant, the Replacement Reserve Funds from the
Replacement Reserve Funds Account from time to time, but not more frequently
than once in any thirty (30) day period, upon satisfaction by Borrower of each
of the following conditions: 
(a) Borrower shall submit a written request for payment to Lender
on Lender’s standard form of draw request at least ten (10) Business Days prior
to the date on which Borrower requests such payment be made and specifies the
Replacements to be paid, (b) on the date such request is received by
Lender and on the date such payment is to be made, no Event of Default shall
exist and remain uncured, (c) Lender shall have received an Officer’s
Certificate stating, to such officer’s knowledge, that each Person that
supplied materials or labor in connection with the Replacements performed at
such Individual Property to be funded by the requested disbursement has been
paid in full or will be paid in full upon such disbursement, such Officer’s
Certificate to be accompanied by a copy of a general corporate ledger setting
forth in reasonable detail each such Person and each cost or expense to be paid
or reimbursed, as applicable, and (d) Lender shall have received such
other evidence as Lender shall reasonably request that the Replacements at such
Individual Property to be funded by the requested disbursement have been
completed in good an workmanlike manner and in accordance with all


 


84





















 


applicable federal, state and local laws, rules and regulations and are
paid for or will be paid upon such disbursement to Borrower.  Lender shall not be required to make
disbursements from the Replacement Reserve Account with respect to any Individual
Property unless such requested disbursement is in an amount greater than $5,000
(or a lesser amount if the total amount in the Replacement Reserve Account is
less than $5,000, in which case only one disbursement of the amount remaining
in the account shall be made) and such disbursement shall be made only upon
satisfaction of each condition contained in this Section 7.3.2.  Without limiting the generality of the
foregoing, if required by Lender for requests in excess of $50,000.00 for a
single item, Borrower shall deliver to 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 Property at Borrower’s expense prior to making a monthly
disbursement in order to verify completion of replacements and repairs of items
in excess of $50,000.00 for which reimbursement is sought.


 


7.3.3       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.           Intentionally
Omitted.


 


Section
7.5.           Reserve
Funds, Generally.  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.  Upon the occurrence
and during the continuance 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.  The
Reserve Funds shall not constitute trust funds and may be commingled with other
monies held by Lender.


 


(a)           Borrower
shall not, without obtaining the prior 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.


 


(b)           The
Reserve Funds shall be held in an Eligible Account and shall bear interest at a
money market rate selected by Lender. 
All interest or other earnings 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. 
Borrower shall have the right to direct Lender to invest sums on deposit
in the Eligible Account in Permitted Investments provided (i) such investments
are then regularly offered by Lender for accounts of this size, category and
type, (ii) such investments are permitted by applicable federal, state and
local rules, regulations and laws, (iii) the maturity date of the
Permitted Investment is not later than the date on which the applicable Reserve
Funds are required for payment of an obligation for which such Reserve Fund was
created, and (iv) no Event of Default shall have occurred and be
continuing.  Borrower shall be
responsible for payment of any federal, state or local income or other tax


 


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applicable to the interest or income earned on the Reserve Funds.  No other investments of the sums on deposit
in the Reserve Funds shall be permitted except as set forth in this Section
7.5.  Borrower shall bear all
reasonable costs associated with the investment of the sums in the account in
Permitted Investments.  Such costs shall
be deducted from the income or earnings on such investment, if any, and to the
extent such income or earnings shall not be sufficient to pay such costs, such
costs shall be paid by Borrower promptly on demand by Lender.  Lender shall have no liability for the rate
of return earned or losses incurred on the investment of the sums in Permitted
Investments.


 


(c)           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 performance of the obligations for which the Reserve Funds were
established, except to the extent arising from the gross negligence or willful
misconduct of Lender, its agents or employees (including willful breach of this
Agreement).  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; 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. 
Each of the following events shall constitute an event of default
hereunder (an “Event
of Default”):


 


(i)            if
(A) subject to the provisions of Section 2.6.3 hereof, Borrower
shall fail to pay the Monthly Debt Service Payment Amount or any required
deposits to the Reserve Funds in full on or prior to the related Payment Date,
or (B) any portion of the Debt is not paid on the Maturity Date;


 


(ii)           if
any of the Taxes or Other Charges are not paid when the same are due and
payable, except to the extent sums sufficient to pay such Taxes and Other
Charges have been deposited with Lender in accordance with the terms of Section
7.2 hereof;


 


(iii)          if
(A) the Policies are not kept in full force and effect, or if copies of
the Policies or other evidence of coverage being afforded under the Policies
reasonably acceptable to Lender, are not delivered to Lender within ten (10) Business
Days after written request therefor from Lender;


 


(iv)          if
Borrower Transfers or otherwise encumbers any portion of the Properties in
violation of the provisions of this Agreement or Article 6 of the Mortgage;


 


(v)           if
any representation or warranty made by any Individual Borrower herein or in any
other Loan Document, or in any report, certificate, financial statement or
other instrument, agreement or document furnished to Lender shall have been
false or misleading in any material respect as of the date the representation
or warranty was made; provided, however, that if such Individual
Borrower did not have actual knowledge at the time of representation or
warranty that such representation or warranty


 


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was false or
misleading in any material respect and the same is susceptible of being cured,
the same shall be an Event of Default hereunder only if the same is not cured
within thirty (30) days after written notice to Borrower from Lender; and provided,
further, if (A) the condition causing the representation or warranty to
be false is susceptible of cure but cannot reasonably be cured within such
thirty (30) day period, (B) Borrower shall have commenced to cure such
condition within such thirty (30) day period and thereafter diligently proceeds
to cure the same, and (C) the condition causing the representation or warranty
to be false could not reasonably be expected to have a material and adverse
effect on the financial condition, operation or business of any Individual
Borrower or Individual Property, then such thirty (30) day period shall be
extended for such an additional period of time as is reasonably necessary for
Borrower in the exercise of due diligence to cure such condition, such
additional period not to exceed 150 days;


 


(vi)          if
any Individual Borrower or Guarantor shall make an assignment for the benefit
of creditors;


 


(vii)         if
a receiver, liquidator or trustee shall be appointed for any Individual
Borrower or Guarantor, or if any Individual Borrower or Guarantor shall be
adjudicated a bankrupt or insolvent, or if any petition for bankruptcy,
reorganization or arrangement pursuant to federal bankruptcy law, or any
similar federal or state law, shall be filed by or against, consented to, or
acquiesced in by, any Individual Borrower or Guarantor, or if any proceeding
for the dissolution or liquidation of any Individual Borrower or Guarantor
shall be instituted; provided, however, if such appointment,
adjudication, petition or proceeding was involuntary and not consented to by
any Individual Borrower or Guarantor, upon the same not being discharged,
stayed or dismissed within ninety (90) days;


 


(viii)        Intentionally
Omitted;


 


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


 


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


 


(xi)           if
any of the assumptions contained in the Insolvency Opinion delivered to Lender
in connection with the Loan is or shall become untrue in any material respect;


 


(xii)          if
a material default has occurred and continues beyond any applicable cure period
under the Master Lease, unless such default is waived in writing by Master
Tenant; or


 


(xiii)         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 (xii) above or under any of the terms, covenants or conditions in any
other Loan Document not


 


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specified in subsection
(x) 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 one hundred twenty (120)
days.


 


(b)           Upon
the occurrence and during the continuance 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 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 and during the continuance of an Event of Default, all or any
one or more of the rights, powers, privileges and other remedies available to
Lender against any Individual Borrower under this Agreement or any of the other
Loan Documents executed and delivered by, or applicable to, any Individual
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, singularly,
successively, together or otherwise, at such time and in such order as Lender
may determine in its sole discretion, to the fullest extent permitted by law,
without impairing or otherwise affecting the other rights and remedies of
Lender permitted by law, equity or contract or as set forth herein or in the
other Loan Documents.  Without limiting
the generality of the foregoing and to the extent permitted by applicable Legal
Requirements, 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 Mortgage has been
foreclosed, sold and/or otherwise realized upon in satisfaction of the Debt or
the Debt has been paid in full.


 


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(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 Mortgages in
any manner and for any amounts secured by the Mortgages 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 Mortgages 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 Mortgages 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 Mortgages as
Lender may elect.  Notwithstanding one or
more partial foreclosures, the Properties shall remain subject to the Mortgages
to secure payment of sums secured by the Mortgages and not previously
recovered.


 


(c)           Lender
shall have the right from time to time to sever the Note and the other Loan
Documents into one or more separate notes, mortgages and other security
documents (the “Severed
Loan Documents”) in such denominations as Lender shall determine in
its sole discretion for purposes of evidencing and enforcing its rights and
remedies provided hereunder.  Borrower or
any Individual Borrower, as applicable, 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 each of Borrower and Lender.  Each Individual 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.


 


(d)           Remedies
Cumulative; Waivers.  The rights,
powers and remedies of Lender under this Agreement shall be cumulative and not
exclusive of any other right, power or remedy which Lender may have against
Borrower or any Individual 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 


 


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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.  Borrower acknowledges and agrees that
the Lender may sell all or any portion of the Loan and the Loan Documents, or
issue one or more participations therein, or consummate one or more private or
public securitizations of rated single- or multi-class securities (the “Securities”)
secured by or evidencing ownership interests in all or any portion of the Loan
and the Loan Documents or a pool of assets that include the Loan and the Loan
Documents (such sales, participations and/or securitizations, collectively, a “Securitization”).  At the request of Lender, and to the extent
not already required to be provided by Borrower under this Agreement, Borrower
shall use reasonable efforts to provide information not in the possession of
Lender or which may be reasonably required by Lender in order to satisfy the
market standards to which Lender customarily adheres or which may be reasonably
required by prospective investors and/or the Rating Agencies in connection with
any such Securitization including, without limitation, to:


 


(a)           provide
additional and/or updated Provided Information, together with appropriate
verification and/or consents related to the Provided Information through
letters of auditors or opinions of counsel of independent attorneys reasonably
acceptable to Lender and the Rating Agencies;


 


(b)           assist
in preparing descriptive materials for presentations to any or all of the
Rating Agencies, and work with, and if requested, supervise, third-party
service providers engaged by Borrower and its affiliates to obtain, collect,
and deliver information requested or required by Lender or the Rating Agencies;


 


(c)           deliver
(i) updated opinions of counsel as to non-consolidation, due execution and
enforceability with respect to each Individual Borrower and its respective
Affiliates and the Loan Documents, and (ii) revised organizational
documents for each Individual Borrower, which counsel opinions and organizational
documents shall be reasonably satisfactory to Lender and the Rating Agencies;


 


(d)           if
required by any Rating Agency, use commercially reasonable efforts to deliver
such additional tenant estoppel letters, subordination agreements or other
agreements from parties to agreements that affect the any Individual Property,
which estoppel letters, subordination agreements or other agreements shall be
reasonably satisfactory to Lender and the Rating Agencies;


 


(e)           intentionally
omitted;


 


(f)            subject
in all cases to the applicable provisions of Section 9.6 hereof, execute
such amendments to the Loan Documents as may be requested by Lender or the
Rating Agencies to effect the Securitization and modify the Cash Management
Agreement with respect to the newly created components such that the pricing
and marketability of the Securities and the size of each class of Securities
and the rating assigned to each such class by the Rating Agencies 


 


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shall provide the most favorable rating levels and achieve the optimum
rating levels for the Loan;


 


(g)           if
requested by Lender, review any information regarding the Properties, Borrower,
any Individual Borrower and the Loan which is contained in a preliminary or
final private placement memorandum, prospectus, prospectus supplement
(including any amendment or supplement to either thereof), or other disclosure
document to be used by Lender or any affiliate thereof; and


 


(h)           supply
to Lender such documentation, financial statements and reports in form and
substance required in order to comply with any applicable securities laws.


 


All reasonable third party costs and expenses incurred
by Borrower in connection with Borrower’s complying with requests made under
this Section 9.1 shall be paid by Lender.


 


Section 9.2.           Securitization Cooperation.  (a) Borrower understands that certain of
the Provided Information may be included in Disclosure Documents in connection
with the Securitization 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, at Lender’s
request, 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 in so far as it relates
to the Properties, Borrower,
Guarantor and Master Tenant.


 


(b)           Notwithstanding
anything to the contrary contained herein, Borrower shall have no obligation to
act as depositor with respect to the Loan or an issuer or registrant with
respect to the Securities issued in any Securitization.


 


Section 9.3.           Loan
Components; Mezzanine Loans.  (a) Subject in all cases to the
applicable provisions of Section 9.6 hereof, Borrower covenants and
agrees that in connection with any Securitization of the Loan, upon Lender’s
request and at Lender’s sole cost and expense, Borrower shall deliver one or
more new component notes to replace the original note or modify the original
note to reflect multiple components of the Loan or re-size the Loan into
components (each a “Resizing Event”) such that the pricing and marketability of
the Securities and the size of each class of Securities and the rating assigned
to each such class by the Rating Agencies shall provide the most favorable
rating levels and achieve the optimum bond execution for the Loan.  Lender agrees that, prior to the occurrence
of an Event of Default, such new notes or modified note or re-sized components
shall have the same weighted average coupon as the original note prior to the
applicable Resizing Event.  In connection
with any Resizing Event, Borrower covenants and agrees to modify the Cash
Management Agreement and/or re-size the Interest Rate Cap Agreement (at Lender’s
sole cost and expense in respect of any amounts due and payable in connection
with such re-sizing) with respect to the newly created notes or
components.  Borrower shall execute and
deliver such documents as shall


 


91


















 


reasonably be required by Lender as promptly as
possible under the circumstances in connection with this Section 9.3(a).


 


(b)           Subject in
all cases to the applicable provisions of Section 9.6 hereof, Borrower
covenants and agrees that after the Closing Date and prior to a Securitization,
Lender shall have the right to create one or more mezzanine loans (each, a “New
Mezzanine Loan”), to establish different interest rates and to
reallocate principal balances of each of the Loan and any New Mezzanine Loan(s)
between or amongst each other; provided, that (i) in no event shall the
weighted average spread of the Loan and any New Mezzanine Loan(s) following any
such reallocation or modification and prior to the occurrence of an Event of
Default change from the weighted average spread for all in effect immediately
preceding such reallocation, modification or creation of any New Mezzanine
Loan(s), and (ii) such new Mezzanine Loan(s) will not, in the reasonable
judgment of Borrower, materially increase Borrower’s obligations and
liabilities under the Loan Documents or materially decrease the rights of
Borrower under the Loan Documents. 
Borrower shall execute and deliver such documents as shall reasonably be
required by Lender as promptly as possible under the circumstances in
connection with this Section 9.3(b), all in form and substance
reasonably satisfactory to Lender and the Rating Agencies, including, without
limitation, in connection with the creation of any New Mezzanine Loan, a
promissory note and other loan documents necessary to evidence such New
Mezzanine Loan, and Borrower shall execute such amendments to the Loan
Documents as are necessary in connection with the creation of such New
Mezzanine Loan.  In addition, Borrower
shall cause the formation of one or more special purpose, bankruptcy remote
entities as required by Lender in order to serve as the borrower under any New
Mezzanine Loan (each, a “New Mezzanine Borrower”) and the applicable
organizational documents of Borrower shall be amended and modified as necessary
or required in the formation of any New Mezzanine Borrower.  Further, in connection with any New
Mezzanine Loan, Borrower shall deliver to Lender opinions of legal counsel with
respect to due execution, authority and enforceability of the New Mezzanine
Loan and the Loan Documents, as amended and an Additional Insolvency Opinion
for the Loan and a substantive non-consolidation opinion with respect to any
New Mezzanine Loan, each as reasonably acceptable to Lender, prospective
investors and/or the Rating Agencies. 
All reasonable third party costs and expenses incurred by Borrower in
connection with its compliance with any requests under this Section 9.3(b)
(and relating to the creation of a single New Mezzanine Loan and/or a single
New Mezzanine Borrower shall be paid by Borrower.


 


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 Mortgages or the other Loan
Documents by any action or proceeding wherein a money judgment shall be sought
against Borrower, except that Lender may bring a foreclosure action, an action
for specific performance or any other appropriate action or proceeding to enable
Lender to enforce and realize upon its interest under the Note, this Agreement,
the Mortgages and the other Loan Documents, or in the Properties, the Rents, or
any other collateral given to Lender pursuant to the Loan Documents; provided,
however, that, except as specifically provided herein, any judgment in any such
action or proceeding shall be enforceable against Borrower only to the extent
of Borrower’s interest in the Properties, in the Rents and in any other
collateral given to Lender, and Lender, by accepting the Note, this Agreement,
the Mortgages and the other Loan Documents, agrees that Lender shall not sue
for, seek or demand any deficiency judgment against Borrower in any such action
or proceeding


 


 


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under, or by reason of,
or in connection with, the Note, this Agreement, the Mortgages 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 any Individual Borrower as a party
defendant in any action or suit for foreclosure and sale under any of the
Mortgages; (c) affect the validity or enforceability of or any Guaranty
made in connection with the Loan or any of the rights and remedies of Lender
thereunder; (d) impair the right of Lender to obtain the appointment of a
receiver; (e) impair the enforcement of any of the 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
Mortgages 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 under the terms of this Agreement or any other Loan
Documents, by money judgment or otherwise, to the extent of any actual
out-of-pocket 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 material misrepresentation in connection with the Loan by Borrower,
Guarantor, or any of their principals, officers, agents or employees;


 


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


 


(iii)     the
breach of any representation, warranty, covenant or indemnification provision
in the Environmental Indemnity Agreement or in the Mortgages concerning
environmental laws, hazardous substances and asbestos and any indemnification
of Lender with respect thereto in either document, but only to the extent that
the same are not insured against by an environmental insurance policy
reasonably acceptable to Lender;


 


(iv)    Intentionally
Omitted;


 


(v)     the
misappropriation or conversion by Borrower of (A) any Insurance Proceeds
paid by reason of any Casualty, (B) any Awards received in connection with
a Condemnation, (C) any Rents following and during the continuance of an
Event of Default, or (D) any Rents paid more than one (1) month in advance
(it being agreed that no use of funds for the repair, maintenance or operations
of the Properties shall be treated as a “misappropriation” hereunder);


 


(vi)    a breach of any
representation set forth in Section 4.1.39 hereof; and


 


(vii)   if
Borrower fails to obtain Lender’s prior consent to any Indebtedness or
voluntary Lien encumbering the Properties as required hereby or by the
Mortgages.


 


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


 


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under
Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy
Code to file a claim for the full amount of the Debt secured by the Mortgages
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 (i) in the event of:  (a) Borrower filing a voluntary
petition under the Bankruptcy Code or any other Federal or state bankruptcy or
insolvency law; (b) Borrower soliciting or causing to be solicited
petitioning creditors for an involuntary petition against Borrower under the
Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(c) Borrower filing an answer consenting to or otherwise acquiescing in or
joining in any involuntary petition filed against it, by any other Person under
the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(d) Borrower consenting to or acquiescing in or joining in an application
for the appointment of a custodian, receiver, trustee, or examiner for Borrower
or any portion of the Property; (e) Borrower making an assignment for the
benefit of creditors, or admitting, in writing or in any legal proceeding, its
insolvency or inability to pay its debts as they become due; or (ii) if
Borrower fails to obtain Lender’s prior consent to any Transfer as required
hereby or by the Mortgages.


 


Section 9.5.           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 any set-up fees or any other costs whatsoever relating to or
arising under the Servicing Agreement, including, without limitation, any
monthly servicing fee due to the Servicer under the Servicing Agreement.


 


Section 9.6.           Limitation on Borrower’s Obligations.  Notwithstanding anything to the contrary in Section
9.1 or any other provision hereof, Borrower shall not be obligated to agree
to any modification of the Note, this Agreement, the Mortgages or the other
Loan Documents, or of any Individual Borrower’s organizational documents, or to
take any other action, that would:


 


(a)           increase
the reporting requirements of Borrower or any other Person pursuant to Section
5.1.11 hereof;


 


(b)           change the
aggregate outstanding principal balance of the Loan;


 


(c)           increase
(i) the weighted average interest rate or aggregate interest payments
under the Loan prior to the occurrence of an Event of Default or (ii) any
fee or late charge under the Loan Documents;


 


(d)           require
amortization of the Loan prior to the Maturity Date or any acceleration of the
maturity of the Loan by Lender;


 


(e)           shorten
the Maturity Date of the Loan, or provide for other or additional circumstances
or events upon which Lender will be entitled to accelerate the maturity of the
Loan;


 


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(f)            alter in
any way the transfer restrictions relating to direct or indirect interests in
the Property (including any equity interests in the direct or indirect owners
of Borrower);


 


(g)           affect the
limitations on recourse against Borrower and Guarantor;


 


(h)           increase
the amounts of reserves or escrows;


 


(i)            affect
the rent payable under the Master Lease;


 


(j)            affect
Borrower’s right to extend the term of the Loan;


 


(k)           affect
Borrower’s right to repay or prepay the Loan;


 


(l)            affect
Borrower’s right to enter into, modify or terminate any Leases or any
Contracts,


 


(m)          reduce the
materiality thresholds (whether expressed in dollars or otherwise) appearing in
any provision of this Agreement or any other Loan Document, including those
relating to alterations, casualty and condemnation;


 


(n)           impose or
increase any servicing or similar fee required to be paid or reimbursed by
Borrower;


 


(o)           add
additional Events of Default, or shorten any grace or cure period applicable to
any existing Event of Default.


 


(p)           require
Borrower or any other Person (including Guarantor) (i) to provide additional
collateral security, credit support, indemnities or guaranties for or in
respect of the Loan, or (ii) to increase or expand the scope or extent of any
existing security, credit support, indemnity or guaranty;


 


(q)           materially
change any obligation of Borrower under the Loan Documents;


 


(r)            result in
Borrower being deemed an “issuer” of the Securities (or any of them); or


 


(s)           otherwise
adversely affect Borrower or Guarantor in any material way.


 


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, 


 


95






















 


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. Whenever this Agreement expressly provides that Lender may not
withhold its consent or its approval of an arrangement or term, such provisions
shall also be deemed to prohibit Lender from delaying or conditioning such
consent or approval.


 


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 LOAN
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, THE NOTE AND THE OTHER LOAN DOCUMENTS
AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER 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
CONFLICTS 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 INTERESTS CREATED PURSUANT HERETO AND
PURSUANT TO THE OTHER LOAN DOCUMENTS 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, THE NOTE AND THE OTHER LOAN DOCUMENTS, AND
THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS 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


 


96






















 


AGREEMENT
OR THE OTHER LOAN DOCUMENTS 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:


 


ABP AL (MIDFIELD) LLC


c/o
Schulte Roth & Zabel LLP


919
Third Avenue


New
York, NY 10022


 


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 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 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 under 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


 


97






















 


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 notice to the other parties hereto in the manner provided for
in this Section 10.6):


 


If to Lender:


 


Column Financial,
Inc.


11 Madison Avenue 


New York, New York
10010


Attention:  Rodney Schiffer


Facsimile No.
(212) 743-5228


 


with a copy to:


 


Column Financial,
Inc.


One Madison Avenue



New York, New York
10019


Legal and
Compliance Department


Attention:  Casey McCutcheon, Esq.


Facsimile No.
                                   


 


with a copy to:


 


Cadwalader,
Wickersham & Taft LLP


100 Maiden Lane


New York, New York
10038


Attention:  William P. McInerney, Esq.


Facsimile No.
(212) 504-6666


 


98






















 


If to Borrower or any
Individual Borrower:


 


c/o BlueLinx
Holdings, Inc.


4300 Wildwood
Parkway


Atlanta,
Georgia  30339


Attention:  Mr. Gary Cummings


Facsimile No.
                           


 


With a copy to:


 


Schulte Roth &
Zabel LLP


919 Third Avenue


New York, New York
10022 


Attention:  Jeffrey A. Lenobel, Esq.


Facsimile No.
(212) 593-5955


 


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; or in the case of telecopy,
upon sender’s receipt of a machine-generated confirmation of successful
transmission after advice by telephone to recipient that a telecopy notice is
forthcoming.  To the fullest extent
permitted by applicable law, and notwithstanding anything to the contrary
contained herein or in any other Loan Document, each Individual Borrower hereby
acknowledges and agrees that Lender shall be entitled to rely upon any notice
give by any Individual Borrower as constituting a notice by such Individual
Borrower or Borrower.


 


Section 10.7.        Trial by Jury. 
LENDER, BORROWER AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER SUCH
PARTY EACH HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF
RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT
ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS,
OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH.  THIS WAIVER OF RIGHT TO
TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY 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 OF BORROWER AND LENDER IS HEREBY AUTHORIZED TO FILE A COPY
OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY
BORROWER OR LENDER, AS THE CASE MAY BE.


 


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


 


99






















 


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 hereby expressly waives, and 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.


 


Section 10.12.      Intentionally Omitted.


 


Section 10.13.      Expenses;
Indemnity. 
(a) Borrower covenants and agrees to pay or, if Borrower fails to
pay, to reimburse, Lender upon receipt of notice from Lender for all reasonable
out-of-pocket 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 reasonably requested by Lender as to
any legal matters arising under this Agreement or the other Loan Documents with
respect to the Properties, excluding any so–called “true lease” opinion);
(ii) except to the extent limited in this Agreement and the Environmental
Indemnity Agreement, 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) intentionally omitted;
(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 Borrower; (v) securing
Borrower’s compliance with any requests made pursuant to the provisions of this
Agreement and the other Loan Documents; (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, either in response to third party claims or in prosecuting


 


100






















 


or defending 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 or any such costs and expenses incurred in connection with a
Securitization (except to the extent that, by the express terms of the Loan
Documents, such costs and expenses are to be borne by Borrower) or which,
pursuant to the express terms of this Agreement, are to be borne by
Lender.  Any cost and expenses due and
payable to Lender may be paid from any amounts in the Cash Management 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, bad faith, fraud or willful misconduct of Lender.  To the extent that the undertaking to
indemnify, defend and hold harmless set forth in the preceding sentence may be
unenforceable because it violates any law or public policy, Borrower shall pay
the maximum portion that it is permitted to pay and satisfy under applicable
law to the payment and satisfaction of all Indemnified Liabilities incurred by
Lender.


 


(c)           Borrower
covenants and agrees to pay for or, if Borrower fails to pay, to reimburse
Lender for any fees and expenses payable to any Rating Agency in connection
with any consent, approval, waiver or confirmation (i) requested by Borrower or (ii) required by
the express terms of the Loan Documents and 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 annexed hereto are
hereby incorporated herein as a part of this Agreement with the same effect as
if set forth in the body hereof.


 


Section 10.15.      Offsets, Counterclaims and Defenses.  Any assignee of Lender’s interest in
and to this Agreement, the Note and the other Loan Documents shall take the
same free and clear of all offsets, counterclaims or defenses which are
unrelated to such documents which Borrower may otherwise have against any
assignor of such documents, and no such


 


101






















 


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.  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.


 


(a)           This
Agreement and the other Loan Documents are solely for the benefit of Lender and
Borrower and nothing contained in this Agreement or the other Loan Documents
shall be deemed to confer upon anyone other than Lender and Borrower any right
to insist upon or to enforce the performance or observance of any of the
obligations contained herein or therein. 
All conditions to the obligations of Lender to make the Loan hereunder
are imposed solely and exclusively for the benefit of Lender and no other
Person shall have standing to require satisfaction of such conditions in
accordance with their terms or be entitled to assume that Lender will refuse to
make the Loan in the absence of strict compliance with any or all thereof and
no other Person shall under any circumstances be deemed to be a beneficiary of
such conditions, any or all of which may be freely waived in whole or in 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 (other than in connection
with a Securitization) by either party or its 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, Borrower, CSFB, or any of
their Affiliates shall be subject to the prior approval of the other party
hereto.  Notwithstanding anything to the
contrary contained herein, Borrower,
Guarantor and their respective Affiliates shall not be prohibited from holding
investor conferences during which the transactions contemplated by this
Agreement are discussed generally or to the extent publicly disclosed in
connection with a Securitization.  In
addition, neither Lender, Borrower, CSFB, nor any of their respective
Affiliates shall be prohibited from disclosing to any Person any information to
the extent necessary to comply with applicable law (including, without
limitation, applicable federal or state securities laws) or any required
filings with any Governmental Authority or regulatory agency or with the New
York Stock Exchange or any other nationally or globally recognized securities
exchange.


 


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 Mortgages are and will be cross-collateralized
and cross-defaulted with each other so that (i) an Event of Default under
any of the Mortgages shall constitute an Event of Default under each of the
other Mortgages which secure the Note; (ii) an Event of Default under the
Note or this Loan Agreement shall constitute an Event of Default under each
Mortgage; (iii) each Mortgage shall constitute security for the


 


102






















 


Note as if a single
blanket lien were placed on all of the Properties as security for the Note; and
(iv) such cross-collateralization shall in no event be deemed to
constitute a fraudulent conveyance.


 


(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, and of the
Properties, or to a sale in inverse order of alienation in the event of
foreclosure of all or any of the Mortgages, 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 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 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
Mortgages, any equitable right otherwise available to Borrower which would
require the separate sale of the Properties or require Lender to exhaust its
remedies against any Individual Property or any combination of the Properties
before proceeding against any other Individual Property or combination of
Properties; and further in the event of such foreclosure Borrower does hereby
expressly consent to and authorize, at the option of Lender, the foreclosure
and sale either separately or together of any combination of the Properties.


 


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


 


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


 


Section 10.21.      Brokers and Financial Advisors.  Each of Borrower and Lender hereby
represents to the other that it has dealt with no financial advisors, brokers,
underwriters,


 


103






















 


placement agents, agents
or finders in connection with the transactions contemplated by this
Agreement.  Each of Borrower and Lender
shall indemnify, defend and hold the other harmless from and against any and
all claims, liabilities, costs and expenses of any kind (including reasonable
attorneys’ fees and expenses) in any way relating to or arising from a claim by
any Person that such Person acted on behalf of the indemnifying party 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, including,
without limitation, the Preliminary Summary of Terms dated September 29, 2004
(as amended) between Borrower and Lender are superseded by the terms of this
Agreement and the other Loan Documents.


 


Section 10.23.      Joint and Several Liability.  The parties hereto acknowledge that the
defined term “Borrower” has been
defined to collectively include each Individual Borrower.  It is the intent of the parties hereto in
determining whether (a) a breach of a representation or a covenant has
occurred, (b) there has occurred a Default or Event of Default, or
(c) an event has occurred which would create recourse obligations under Section 9.3
of this Agreement, that any such breach, occurrence or event with respect to
any Individual Borrower shall be deemed to be such a breach, occurrence or event
with respect to all Individual Borrowers and that all Individual Borrowers need
not have been involved with such breach, occurrence or event in order for the
same to be deemed such a breach, occurrence or event with respect to every
Individual Borrower.  The obligations
and liabilities of each Individual Borrower shall be joint and several.


 


Section 10.24.      Intentionally Omitted.


 


Section 10.25.      Mortgagee Waiver.  In connection with the refinancing from time to time by the
Master Tenant of a working capital facility in favor of Master Tenant pursuant
to that certain Loan and Security Agreement, dated as of May 7, 2004, by and
among Master Tenant, the Persons from time to time party thereto as lenders,
and Congress Financial Corporation, as administrative and collateral agent,
Lender agrees to execute and deliver such mortgagee’s waiver agreement in form
delivered in connection with the Loan.


 


[NO FURTHER TEXT ON THIS PAGE]


 


104






















 


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


 


BORROWER:


 


	
  ABP AL (MIDFIELD) LLC

  	
   

  	
  ABP AR (LITTLE ROCK)
  LLC

  
	
  ABP CA (CITY OF
  INDUSTRY) LLC

  	
   

  	
  ABP CA (NATIONAL CITY)
  LLC

  
	
  ABP CA (NEWARK) LLC

  	
   

  	
  ABP CA (NORTH
  HIGHLANDS) LLC

  
	
  ABP CA (RIVERSIDE) LLC

  	
   

  	
  ABP CO I (DENVER) LLC

  
	
  ABP CO II (DENVER) LLC

  	
   

  	
  ABP CT (NEWTON) LLC

  
	
  ABP FL (LAKE CITY) LLC

  	
   

  	
  ABP FL (MIAMI) LLC

  
	
  ABP FL (PENSACOLA) LLC

  	
   

  	
  ABP FL (TAMPA) LLC

  
	
  ABP FL (YULEE) LLC

  	
   

  	
  ABP GA (LAWRENCEVILLE)
  LLC

  
	
  ABP IA (DES MOINES) LLC

  	
   

  	
  ABP IL (UNIVERSITY
  PARK) LLC

  
	
  ABP IN (ELKHART) LLC

  	
   

  	
  ABP KY (INDEPENDENCE)
  LLC

  
	
  ABP LA (BATON ROUGH)
  LLC

  	
   

  	
  ABP LA (NEW ORLEANS)
  LLC

  
	
  ABP LA (SHREVEPORT) LLC

  	
   

  	
  ABP MA (BELLINGHAM) LLC

  
	
  ABP MD (BALTIMORE) LLC

  	
   

  	
  ABP ME (PORTLAND) LLC

  
	
  ABP MI (DETROIT) LLC

  	
   

  	
  ABP MI (GRAND RAPIDS)
  LLC

  
	
  ABP MN (EAGAN) LLC

  	
   

  	
  ABP MN (MAPLE GROVE)
  LLC

  
	
  ABP MO (BRIDGETON) LLC

  	
   

  	
  ABP MO (KANSAS CITY)
  LLC

  
	
  ABP MO (SPRINGFIELD)
  LLC

  	
   

  	
  ABP MS (PEARL) LLC

  
	
  ABP NC (BUTNER) LLC

  	
   

  	
  ABP NC (CHARLOTTE) LLC

  
	
  ABP ND (NORTH FARGO)
  LLC

  	
   

  	
  ABP NJ (DENVILLE) LLC

  
	
  ABP NM (ALBUQUERQUE)
  LLC

  	
   

  	
  ABP NY (YAPHANK) LLC

  
	
  ABP OH (TALMADGE) LLC

  	
   

  	
  ABP OK (TULSA) LLC

  
	
  ABP OR (BEAVERTON) LLC

  	
   

  	
  ABP PA (ALLENTOWN) LLC

  
	
  ABP PA (STANTON) LLC

  	
   

  	
  ABP SC (CHARLESTON) LLC

  
	
  ABP SD (SIOUX FALLS)
  LLC

  	
   

  	
  ABP TN (ERWIN) LLC

  
	
  ABP TN (MEMPHIS) LLC

  	
   

  	
  ABP TN (NASHVILLE) LLC

  
	
  ABP TX (EL PASO) LLC

  	
   

  	
  ABP TX (FORT WORTH) LLC

  
	
  ABP TX (HARLINGEN) LLC

  	
   

  	
  ABP TX (HOUSTON) LLC

  
	
  ABP TX (LUBBOCK) LLC

  	
   

  	
  ABP TX (SAN ANTONIO)
  LLC

  
	
  ABP VA (RICHMOND) LLC

  	
   

  	
  ABP VA (VIRGINIA BEACH)
  LLC

  
	
  ABP VT (SHELBURNE) LLC

  	
   

  	
  ABP WA (WOODINVILLE)
  LLC

  
	
  ABP WI (WAUSAU) LLC

  	
   

  	
   

  



 


 


	
   

  	
  By: 

  	
            /s/ David
  Morris

  	
   

  
	
   

  	
   

  	
  Name:     David
  Morris

  
	
   

  	
   

  	
  Title:       Secretary
  and Vice President

  
					



 






















 


	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COLUMN FINANCIAL, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Illegible

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title