**Exhibit 10.468**

 

**LOAN AGREEMENT**

 

 

Dated as of December 16,2004

 

 

Between

 

 

INLAND WESTERN PLANTATIONEXPRESS, L.L.C.,

 

 

as Borrower

 

 

and

 

 

**BANK OF****AMERICA, N.A.,**as Lender

 

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TABLE OF CONTENTS

 
| **ARTICLE 1 DEFINITIONS; PRINCIPLES  OF CONSTRUCTION** | ** **                                                     |
|--------------------------------------------------------|----------------------------------------------------------------|
|                                                   |                                                           |   |
|                                                   | SECTION 1.1. DEFINITIONS                                       |   |
|                                                   | SECTION 1.2.  PRINCIPLES OF CONSTRUCTION                       |   |
|                                                   |                                                           |   |
| **ARTICLE 2* *GENERAL  TERMS**                    | ** **                                                     |
|                                                   |                                                           |   |
|                                                   | SECTION  2.1. LOAN COMMITMENT; DISBURSEMENT TO BORROWER        |   |
|                                                   | SECTION 2.2. LOAN PAYMENTS                                     |   |
|                                                   | SECTION 2.3. PREPAYMENT                                        |   |
|                                                   |                                                           |   |
| **ARTICLE 3 CONDITIONS  PRECEDENT**                    | ** **                                                     |
|                                                   |                                                           |   |
| **ARTICLE 4  REPRESENTATIONS AND WARRANTIES**          | ** **                                                     |
|                                                   |                                                           |   |
|                                                   | SECTION 4.1. ORGANIZATION                                      |   |
|                                                   | SECTION 4.2. STATUS OF  BORROWER                               |   |
|                                                   | SECTION 4.3.  VALIDITY OF DOCUMENTS                            |   |
|                                                   | SECTION 4.4. NO CONFLICTS                                      |   |
|                                                   | SECTION 4.5. LITIGATION                                        |   |
|                                                   | SECTION 4.6. AGREEMENTS                                        |   |
|                                                   | SECTION 4.7. SOLVENCY                                          |   |
|                                                   | SECTION 4.8.  FULL AND ACCURATE DISCLOSURE                     |   |
|                                                   | SECTION 4.9. NO PLAN ASSETS                                    |   |
|                                                   | SECTION 4.10. NOT A  FOREIGN PERSON                            |   |
|                                                   | SECTION 4.11.  ENFORCEABILITY                                  |   |
|                                                   | SECTION 4.12. BUSINESS  PURPOSES                               |   |
|                                                   | SECTION 4.13. COMPLIANCE                                       |   |
|                                                   | SECTION 4.14.  FINANCIAL INFORMATION                           |   |
|                                                   | SECTION 4.15. CONDEMNATION                                     |   |
|                                                   | SECTION  4.16. UTILITIES AND PUBLIC ACCESS; PARKING            |   |
|                                                   | SECTION 4.17. SEPARATE  LOTS                                   |   |
|                                                   | SECTION 4.18. ASSESSMENTS                                      |   |
|                                                   | SECTION 4.19. INSURANCE                                        |   |
|                                                   | SECTION 4.20. USE OF  PROPERTY                                 |   |
|                                                   | SECTION 4.21. CERTIFICATE OF  OCCUPANCY; LICENSES              |   |
|                                                   | SECTION 4.22. FLOOD ZONE                                       |   |
|                                                   | SECTION 4.23. PHYSICAL  CONDITION                              |   |
|                                                   | SECTION 4.24. BOUNDARIES;  SURVEY                              |   |
|                                                   | SECTION  4.25. LEASES                                          |   |
|                                                   | SECTION 4.26.  FILING AND RECORDING TAXES                      |   |
|                                                   | SECTION 4.27.  MANAGEMENT AGREEMENT                            |   |
|                                                   | SECTION 4.28. ILLEGAL  ACTIVITY                                |   |
|                                                   | SECTION 4.29.  CONSTRUCTION EXPENSES                           |   |
|                                                   | SECTION 4.30. PERSONAL  PROPERTY                               |   |
|                                                   | SECTION  4.31. TAXES                                           |   |
|                                                   | SECTION 4.32.  PERMITTED ENCUMBRANCES                          |   |
|                                                   | SECTION  4.33. FEDERAL RESERVE REGULATIONS                     |   |
|                                                   | SECTION 4.34.  INVESTMENT COMPANY ACT                          |   |
|                                                   | SECTION  4.35. RECIPROCAL EASEMENT AGREEMENTS                  |   |
|                                                   | SECTION  4.36. NO CHANGE IN FACTS OR CIRCUMSTANCES; DISCLOSURE |   |

 

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|                                                          | SECTION 4.37. INTELLECTUAL  PROPERTY                        |   |
|---------------------------------------------------------------|-------------------------------------------------------------|--------|
|                                                          | SECTION  4.38. COMPLIANCE WITH ANTI-TERRORISM LAWS          |   |
|                                                          | SECTION 4.39. PATRIOT ACT                                   |   |
|                                                          | SECTION 4.40. SURVIVAL                                      |   |
|                                                          |                                                        |   |
| **ARTICLE 5 BORROWER  COVENANTS**                             | ** **                                                  |
|                                                          |                                                        |   |
|                                                          | SECTION  5.1. EXISTENCE; COMPLIANCE WITH LEGAL REQUIREMENTS |   |
|                                                          | SECTION 5.2.  MAINTENANCE AND USE OF PROPERTY               |   |
|                                                          | SECTION  5.3. WASTE                                         |   |
|                                                          | SECTION 5.4.  TAXES AND OTHER CHARGES                       |   |
|                                                          | SECTION 5.5. LITIGATION                                     |   |
|                                                          | SECTION 5.6. ACCESS TO  PROPERTY                            |   |
|                                                          | SECTION 5.7. NOTICE OF  DEFAULT                             |   |
|                                                          | SECTION  5.8. COOPERATE IN LEGAL PROCEEDINGS                |   |
|                                                          | SECTION 5.9.  PERFORMANCE BY BORROWER                       |   |
|                                                          | SECTION 5.10.  AWARDS; INSURANCE PROCEEDS                   |   |
|                                                          | SECTION 5.11.  FINANCIAL REPORTING                          |   |
|                                                          | SECTION 5.12.  ESTOPPEL STATEMENT                           |   |
|                                                          | SECTION 5.13. LEASING  MATTERS                              |   |
|                                                          | SECTION 5.14.  PROPERTY MANAGEMENT                          |   |
|                                                          | SECTION 5.15. LIENS                                         |   |
|                                                          | SECTION 5.16. DEBT  CANCELLATION                            |   |
|                                                          | SECTION 5.17. ZONING                                        |   |
|                                                          | SECTION 5.18. ERISA                                         |   |
|                                                          | SECTION 5.19. NO  JOINT ASSESSMENT                          |   |
|                                                          | SECTION  5.20. RECIPROCAL EASEMENT AGREEMENTS               |   |
|                                                          |                                                        |   |
| **ARTICLE 6 ENTITY COVENANTS**                                | ** **                                                  |
|                                                          |                                                        |   |
|                                                          | SECTION  6.1. SINGLE PURPOSE ENTITY/SEPARATENESS            |   |
|                                                          | SECTION  6.2. CHANGE OF NAME, IDENTITY OR STRUCTURE         |   |
|                                                          | SECTION 6.3.  BUSINESS AND OPERATIONS                       |   |
|                                                          | SECTION 6.4.  INDEPENDENT DIRECTOR                          |   |
|                                                          |                                                        |   |
| **ARTICLE 7 NO SALE OR  ENCUMBRANCE**                         | ** **                                                  |
|                                                          |                                                        |   |
|                                                          | SECTION 7.1.  TRANSFER DEFINITIONS                          |   |
|                                                          | SECTION 7.2. NO  SALE/ENCUMBRANCE                           |   |
|                                                          | SECTION 7.3.  PERMITTED TRANSFERS                           |   |
|                                                          | SECTION 7.4. LENDER’S  RIGHTS                          |   |
|                                                          | SECTION 7.5. ASSUMPTION                                     |   |
|                                                          | SECTION 7.6. ASSUMPTION BY  INLAND PERMITTED TRANSFEREE     |   |
|                                                          |                                                        |   |
| **ARTICLE  8 INSURANCE; CASUALTY; CONDEMNATION; RESTORATION** | ** **                                                  |
|                                                          |                                                        |   |
|                                                          | SECTION 8.1. INSURANCE                                      |   |
|                                                          | SECTION 8.2. CASUALTY                                       |   |
|                                                          | SECTION 8.3. CONDEMNATION                                   |   |
|                                                          | SECTION 8.4. RESTORATION                                    |   |
|                                                          |                                                        |   |
| **ARTICLE 9  REPLACEMENTS; RESERVE FUNDS**                    | ** **                                                  |
|                                                          |                                                        |   |
|                                                          | SECTION 9.1. REPLACEMENTS                                   |   |
|                                                          | SECTION  9.2. TAX AND INSURANCE RESERVE FUNDS               |   |
|                                                          | SECTION 9.3.  RESERVE FUNDS GENERALLY                       |   |
|                                                          |                                                        |   |
| **ARTICLE 10 CASH MANAGEMENT**                                | ** **                                                  |
|                                                          |                                                        |   |
|                                                          | SECTION 10.1.  CASH MANAGEMENT ACCOUNT                      |   |
|                                                          | SECTION 10.2.  DEPOSITS AND WITHDRAWALS                     |   |
|                                                          | SECTION 10.3. SECURITY  INTEREST                            |   |

 

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| **ARTICLE 11  EVENTS OF DEFAULT; REMEDIES** | ** **                                                             |
|---------------------------------------------|------------------------------------------------------------------------|
|                                        |                                                                   |   |
|                                        | SECTION 11.1. EVENT OF  DEFAULT                                        |   |
|                                        | SECTION 11.2. REMEDIES                                                 |   |
|                                        |                                                                   |   |
| **ARTICLE 12  ENVIRONMENTAL PROVISIONS**    | ** **                                                             |
|                                        |                                                                   |   |
|                                        | SECTION  12.1. ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES            |   |
|                                        | SECTION 12.2.  ENVIRONMENTAL COVENANTS                                 |   |
|                                        | SECTION 12.3. LENDER’S  RIGHTS                                    |   |
|                                        | SECTION  12.4. OPERATIONS AND MAINTENANCE PROGRAMS                     |   |
|                                        | SECTION 12.5.  ENVIRONMENTAL DEFINITIONS                               |   |
|                                        |                                                                   |   |
| **ARTICLE 13 SECONDARY  MARKET**            | ** **                                                             |
|                                        |                                                                   |   |
|                                        | SECTION 13.1. TRANSFER  OF LOAN                                        |   |
|                                        | SECTION 13.2.  DELEGATION OF SERVICING                                 |   |
|                                        | SECTION  13.3. DISSEMINATION OF INFORMATION                            |   |
|                                        | SECTION 13.4. COOPERATION                                              |   |
|                                        |                                                                   |   |
| **ARTICLE 14  INDEMNIFICATIONS**            | ** **                                                             |
|                                        |                                                                   |   |
|                                        | SECTION 14.1.  GENERAL INDEMNIFICATION                                 |   |
|                                        | SECTION  14.2. MORTGAGE AND INTANGIBLE TAX INDEMNIFICATION             |   |
|                                        | SECTION 14.3.  ERISA INDEMNIFICATION                                   |   |
|                                        | SECTION 14.4. SURVIVAL                                                 |   |
|                                        |                                                                   |   |
| **ARTICLE 15 EXCULPATION**                  | ** **                                                             |
|                                        |                                                                   |   |
|                                        | SECTION 15.1. EXCULPATION                                              |   |
|                                        |                                                                   |   |
| **ARTICLE 16 NOTICES**                      | ** **                                                             |
|                                        |                                                                   |   |
|                                        | SECTION 16.1. NOTICES                                                  |   |
|                                        |                                                                   |   |
| **ARTICLE 17 FURTHER  ASSURANCES**          | ** **                                                             |
|                                        |                                                                   |   |
|                                        | SECTION 17.1.  REPLACEMENT DOCUMENTS                                   |   |
|                                        | SECTION  17.2. RECORDING OF MORTGAGE, ETC.                             |   |
|                                        | SECTION 17.3. FURTHER  ACTS, ETC.                                      |   |
|                                        | SECTION  17.4. CHANGES IN TAX, DEBT, CREDIT AND DOCUMENTARY STAMP LAWS |   |
|                                        | SECTION 17.5. EXPENSES                                                 |   |
|                                        |                                                                   |   |
| **ARTICLE 18 WAIVERS**                      | ** **                                                             |
|                                        |                                                                   |   |
|                                        | SECTION  18.1. REMEDIES CUMULATIVE; WAIVERS                            |   |
|                                        | SECTION  18.2. MODIFICATION, WAIVER IN WRITING                         |   |
|                                        | SECTION 18.3. DELAY  NOT A WAIVER                                      |   |
|                                        | SECTION 18.4. TRIAL BY  JURY                                           |   |
|                                        | SECTION 18.5. WAIVER OF  NOTICE                                        | * * |
|                                        | SECTION 18.6.  REMEDIES OF BORROWER                                    |   |
|                                        | SECTION  18.7. WAIVER OF MARSHALLING OF ASSETS                         |   |
|                                        | SECTION  18.8. WAIVER OF STATUTE OF LIMITATIONS                        |   |
|                                        | SECTION 18.9.  WAIVER OF COUNTERCLAIM                                  |   |
|                                        |                                                                   |   |
| **ARTICLE 19 GOVERNING LAW**                | ** **                                                             |
|                                        |                                                                   |   |
|                                        | SECTION 19.1. CHOICE OF  LAW                                           |   |
|                                        | SECTION 19.2. SEVERABILITY                                             |   |
|                                        | SECTION 19.3. PREFERENCES                                              |   |
|                                        |                                                                   |   |
| **ARTICLE 20 MISCELLANEOUS**                | ** **                                                             |
|                                        |                                                                   |   |
|                                        | SECTION 20.1. SURVIVAL                                                 |   |
|                                        | SECTION 20.2.  LENDER’S DISCRETION                                |   |

 

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

 

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

 

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

 

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

 

**“American Express”**shall mean American Express Travel RelatedServices Company, Inc., a New York corporation.

 

**“American Express Lease”**shall mean that certain Lease Agreement datedas of December 16, 2004 between Borrower, as landlord, and American Express, astenant, with respect to the Property.

 

**“American Express Lease Default”**shall mean (i) a default, after theexpiration of any applicable notice or cure periods, under the American ExpressLease or (ii) the cancellation, termination or surrender of the AmericanExpress Lease.

 

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

 

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

 

**“Borrower Principal”**shall mean Inland Western Retail Real EstateTrust, Inc., a Maryland corporation.

 

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

 

**“Cash Management Account”**shall have the meaning set forth in Section10.1 (a) hereof.

 

**“Cash Management Period”**shall mean the period commencing on the 45lhday prior to the Optional Prepayment Date.

 

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

 

**“****Closing Date****”**shallmean the date of the funding of the Loan.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

**“Default Rate”**shall mean, with respect to the Loan, a rateper annum equal to the lesser of (a) the maximum rate permitted by applicablelaw, or (b) four percent (4%) above the Note Rate.

 

**“Eligible Account”**shall mean a separate and identifiableaccount from all other funds held by the holding institution that is either (a)an account or accounts maintained with a federal or state chartered depositoryinstitution or trust company which complies with the definition of EligibleInstitution or (b) a segregated trust account or accounts maintained with thecorporate trust department of a federal or state chartered depositoryinstitution or trust company acting in its fiduciary capacity which, in thecase of a federally chartered depository institution or trust company acting inits fiduciary capacity is subject to the regulations regarding adversary fundson deposit therein under 12 CFR §9.10(b), and in the case of a state chartereddepository institution or trust company, is subject to regulationssubstantially similar to 12 C.F.R. §9.10(b), having in either case a combinedcapital surplus of at least $50,000,000 and subject to supervision or examinationby federal and state authority. An Eligible Account will not be evidenced by acertificate of deposit, passbook or other instrument.

 

**“Eligible Institution”**shall mean a depository institution or trustcompany insured by the Federal Deposit Insurance Corporation, the short termunsecured debt obligations or commercial paper of which arc rated at least “A-l”by S&P, “P-l” by Moody’s and “F-1” by Fitch in the case of accounts inwhich funds arc held for thirty (30) days or less (or, in the case of accountsin which funds are held for more than thirty (30) days, the long term unsecureddebt obligations of which are rated at least “AA-” by Fitch and S&P (or “A-”by S&P, if such depository’s short

 

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term unsecured debt ratingis at least “A-1” by S&P) and “Aa2” by Moody’s). Notwithstanding theforegoing, prior to a Securitization, Bank of America, N.A. shall be anEligible Institution.

 

**“EmbargoedPerson”**shallmean any person identified by OFAC or any other Person with whom a Personresident in the United States of America may not conduct business ortransactions by prohibition of federal law or Executive Order of the Presidentof the United States of America.

 

**“EnvironmentalIndemnity”**shallmean that certain Environmental Indemnity Agreement, dated as of the datehereof, executed by Borrower and Borrower Principal in connection with the Loanfor the benefit of Lender, as the same may be amended, restated, replaced,supplemented or otherwise modified from time to time.

 

**“****Environmental Law****”** shall have the meaning set forth in Section12.5 hereof.

 

**“EnvironmentalLiens”** shall havethe meaning set forth in Section 12.5 hereof.

 

**“EnvironmentalReport”**shallhave the meaning set forth in Section 12.5 hereof.

 

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

 

**“Eventof Default”**shallhave the meaning set forth in Section 11.1 hereof.

 

**“ExchangeAct”**shall meanthe Securities and Exchange Act of 1934, as amended.

 

**“Fitch”**shall mean Fitch,Inc.

 

**“GAAP”**shall mean generallyaccepted accounting principles in the United States of America as of the date ofthe applicable financial report.

 

**“GovernmentalAuthority”**shallmean any court, board, agency, department, commission, office or otherauthority of any nature whatsoever for any governmental unit (federal, state,county, municipal, city, town, special district or otherwise) whether now orhereafter in existence.

 

**“Guarantor”**shall mean any Personhaving a long-term unsecured debt rating above the Trigger Rating that may,from time to time, at the option of American Express, execute a guaranty infavor of landlord under the American Express Lease.

 

**“HazardousMaterials”**shallhave the meaning set forth in Section 12.5 hereof.

 

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

 

**“IndemnifiedParties”**shallmean (a) Lender, (b) any prior owner or holder of the Loan or Participations inthe Loan, (c) any servicer or prior servicer of the Loan, (d) any Investor orany prior Investor in any Securities, (e) any trustees, custodians or otherfiduciaries who hold or

 

4

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who have held a full orpartial interest in the Loan for the benefit of any Investor or other thirdparty, (f) any receiver or other fiduciary appointed in a foreclosure or otherCreditors Rights Laws proceeding, (g) any officers, directors, shareholders,partners, members, employees, agents, servants, representatives, contractors,subcontractors, affiliates or subsidiaries of any and all of the foregoing, and(h) the heirs, legal representatives, successors and assigns of any and all ofthe foregoing (including, without limitation, any successors by merger,consolidation or acquisition of all or a substantial portion of the IndemnifiedParties’ assets and business), in all cases whether during the term of the Loanor as part of or following a foreclosure of the Mortgage.

 

**“IndependentDirector”**shallhave the meaning set forth in Section 6.4(a).

 

**“Inland PermittedTransferee”**shallmean a newly-formed special purpose entity that is wholly-owned (directly orindirectly) by Inland Retail Real Estate Trust, Inc., a Maryland corporation;Inland Real Estate Corporation, a Maryland corporation, Inland Real EstateCorporation, a Delaware corporation or Borrower Principal.

 

**“Insurance****Premiums****”**shall have the meaning set forth in Section 8.1hereof.

 

**“Insurance Proceeds”** shall have the meaning set forth in Section8.4(b) hereof.

 

**“InternalRevenue Code”**shall mean the Internal Revenue Code of 1986, as amended, as it may be furtheramended from time to time, and any successor statutes thereto, and applicableU.S. Department of Treasury regulations issued pursuant thereto in temporary orfinal form.

 

**“Investor”**shall have themeaning set forth in Section 13.3 hereof.

 

**“****Lease****”** shall have the meaning set forth in theMortgage.

 

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

 

**“Lien”** shall mean any mortgage, deed of trust,lien, pledge, hypothecation, assignment, security interest, or any otherencumbrance, charge or transfer of, on or affecting Borrower, the Property, anyportion thereof or any interest therein, including, without limitation, anyconditional sale or other title retention agreement, any financing lease havingsubstantially the same economic effect as any of the foregoing, the filing ofany financing statement, and mechanic’s, materialmen’s and other similar liens andencumbrances.

 

**“LLC Agreement”** shall have the meaning set forth in Section6.1(c).

 

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**“Loan”**shall mean the loanmade by Lender to Borrower pursuant to this Agreement.

 

**“LoanDocuments”**shallmean, collectively, this Agreement, the Note, the Mortgage, the EnvironmentalIndemnity, the Assignment of Management Agreement and any and all otherdocuments, agreements and certificates executed and/or delivered in connectionwith the Loan, as the same may be amended, restated, replaced, supplemented orotherwise modified from time to time.

 

**“LockoutPeriod”**shallmean the period commencing on the date hereof and ending on the date of thesecond anniversary hereof.

 

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

 

**“ManagementAgreement”**shallmean the management agreement entered into by and between Borrower and Manager,pursuant to which Manager is to provide management and other services withrespect to the Property, as the same may be amended, restated, replaced,supplemented or otherwise modified in accordance with the terms of thisAgreement.

 

**“Manager”**shall mean Inland USManagement LLC, a Delaware limited liability company or such other entityselected as the manager of the Property in accordance with the terms of thisAgreement.

 

**“MaterialLitigation”**shallmean, with respect to any Person, any material conviction, indictment (that isnot dismissed before trial), judgment, litigation or regulatory action. Forpurposes of this definition, a matter shall be deemed material if it isreasonably foreseeable that a prudent institutional commercial real estatemortgage lender would consider such matter as a material adverse factor in itsunderwriting of the Person in question. With respect to non-criminal matters,isolated actions occurring more than five (5) years prior to the date of aproposed transfer shall not be deemed material provided that there is noindication of fraud, intentional misrepresentation or intent to defraudcreditors with respect to such actions.

 

**“MaturityDate”** shall have the meaningset forth in the Note.

 

**“MaximumLegal Rate”  **shall mean the maximum nonusurious interestrate, 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 Noteand as provided for herein or the other Loan Documents, under the laws of suchstate or states whose laws are held by any court of competent jurisdiction togovern the interest rate provisions of the Loan.

 

**“Member”**shall have themeaning set forth in Section 6.1(c).

 

**“MonthlyPayment Amount”**shallmean the monthly payment of interest due on each Scheduled Payment Date as setforth in the Note.

 

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

 

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**“Mortgage”**shall mean thatcertain first priority mortgage/deed of trust/deed to secure debt and securityagreement dated the date hereof, executed and delivered by Borrower as securityfor the Loan and encumbering the Property, as the same may be amended,restated, replaced, supplemented or otherwise modified from time to time.

 

**“N****et Proceeds****”**shall have the meaning set forth in Section8.4(b) hereof.

 

**“Net ProceedsDeficiency”**shallhave the meaning set forth in Section 8.4(b)(vi) hereof.

 

**“Note”**shall mean thatcertain promissory note of even date herewith in the principal amount of $37,170,000,made by Borrower in favor of Lender, as the same may be amended, restated,replaced, supplemented or otherwise modified from time to time.

 

**“NoteRate”**shall havethe meaning set forth in the Note. 

 

**“OFAC”**shall have themeaning set forth in Section 4.38 hereof.

 

**“OperatingExpenses”**shallmean, with respect to any period of time, the total of all expenses actuallypaid or payable, computed in accordance with federal tax basis accounting, orin accordance with other methods acceptable to Lender in its sole discretion,of whatever kind relating to the operation, maintenance and management of theProperty, including, without limitation, utilities, ordinary repairs andmaintenance, Insurance Premiums, license fees, Taxes and Other Charges,advertising expenses, payroll and related taxes, computer processing charges,management fees equal to the greater of 4% of the Operating Income and themanagement fees actually payable under the Management Agreement for such periodof time, operational equipment or other lease payments as approved by Lender,normalized capital expenditures but specifically excluding depreciation andamortization, income taxes, Debt Service, any incentive fees due under theManagement Agreement, any item of expense that in accordance with federal taxbasis accounting should be capitalized, any item of expense that would otherwisebe covered by the provisions hereof but which is paid by American Express underthe American Express Lease and deposits into the Reserve Accounts.

 

**“OptionalPrepayment Date”**shallhave the meaning set forth in the Note.

 

**“OtherCharges”**shallmean all ground rents, maintenance charges, impositions other than Taxes, andany other charges, including, without limitation, vault charges and licensefees for the use of vaults, chutes and similar areas adjoining the Property,now or hereafter levied or assessed or imposed against the Property or any partthereof.

 

**“Participations”**shall have themeaning set forth in Section 13.1 hereof. 

 

**“Patriot Act****”** shall have the meaning set forth in Section4.38 hereof.

 

**“PermittedEncumbrances”**shallmean collectively, (a) the Lien and security interests created by the LoanDocuments, (b) all Liens, encumbrances and other matters disclosed in the TitleInsurance Policy, (c) Liens, if any, for Taxes imposed by any GovernmentalAuthority not yet due or delinquent, and (d) such other title and surveyexceptions as Lender has approved or may approve in writing in Lender’s solediscretion.

 

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**“PermittedInvestments”**shallmean to the extent available from Lender or Lender’s servicer for deposits inthe Reserve Accounts and the Lockbox Account, any one or more of the followingobligations or securities acquired at a purchase price of not greater than par,including those issued by a servicer of the Loan, the trustee under any securitizationor any of their respective Affiliates, payable on demand or having a maturitydate not later than the Business Day immediately prior to the date on which thefunds used to acquire such investment are required to be used under thisAgreement and meeting one of the appropriate standards set forth below:

 

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

 

(b)           FederalHousing Administration debentures;

 

(c)           obligationsof the following United States government sponsored agencies; Federal Home LoanMortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwidebonds and notes), the Federal Home Loan Banks (consolidated debt obligations),the Federal National Mortgage Association (debt obligations), the FinancingCorp, (debt obligations), and the Resolution Funding Corp. (debt obligations); *provided, however,*that the investmentsdescribed in this clause must (i) have a predetermined fixed dollar ofprincipal due at maturity that cannot vary or change, (ii) if rated by S&P,must not have an “r” highlighter affixed to their rating, (iii) if suchinvestments have a variable rate of interest, such interest rate must be tiedto a single interest rate index plus a fixed spread (if any) and must move proportionatelywith that index, and (iv) such investments must not be subject to liquidationprior to their maturity;

 

(d)           federalfunds, unsecured certificates of deposit, time deposits, bankers’ acceptancesand repurchase agreements with maturities of not more than 365 days of anybank, the short term obligations of which at all times are rated in the highestshort term rating category by each Rating Agency (or, if not rated by all RatingAgencies, rated by at least one Rating Agency in the highest short term ratingcategory and otherwise acceptable to each other Rating Agency, as confirmed inwriting that such investment would not, in and of itself, result in a downgrade,qualification or withdrawal of the initial, or, if higher, then current ratingsassigned 

 

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to the Securities); provided, however, that the investments describedin this clause must (i) have a predetermined fixed dollar of principal due atmaturity that cannot vary or change, (ii) if rated by**S&P, mustnot have an “r” highlighter affixed to their rating, (iii) if such investmentshave a variable rate of interest, such interest rate must be tied to a singleinterest rate index plus a fixed spread (if any) and must move proportionatelywith that index, and (iv) such investments must not be subject to liquidationprior to their maturity;

 

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

 

(f)            debtobligations with maturities of not more than 365 days and at all times rated byeach Rating Agency (or, if not rated by all Rating Agencies, rated by at leastone Rating Agency and otherwise acceptable to each other Rating Agency, asconfirmed in writing that such investment would not, in and of itself, resultin a downgrade, qualification or withdrawal of the initial, or, if higher, thencurrent ratings assigned to the Securities) in its highest long-term unsecuredrating category; provided, however, that the investments described in thisclause must (i) have a predetermined fixed dollar of principal due at maturitythat cannot vary or change, (ii) if rated by S&P, must not have an “r”highlighter affixed to their rating, (iii) if such investments have a variablerate of interest, such interest rate must be tied to a single interest rateindex plus a fixed spread (if any) and must move proportionately with thatindex, and (iv) such investments must not be subject to liquidation prior totheir maturity;

 

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

 

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(h)           unitsof taxable money market funds, with maturities of not more than 365 days and,which funds are regulated investment companies, seek to maintain a constant netasset value per share and invest solely in obligations backed by the full faithand credit of the United States, which funds have the highest rating availablefrom each Rating Agency (or, if not rated by all Rating Agencies, rated by atleast one Rating Agency and otherwise acceptable to each other Rating Agency,as confirmed in writing that such investment would not, in and of itself,result in a downgrade, qualification or withdrawal of the initial, or, ifhigher, then current ratings assigned to the Securities) for money marketfunds; and

 

(i)            anyother security, obligation or investment which has been approved as a PermittedInvestment in writing by (i) Lender and (ii) each Rating Agency, as evidencedby a written confirmation that the designation of such security, obligation orinvestment as a Permitted Investment will not, in and of itself, result in adowngrade, qualification or withdrawal of the initial, or, if higher, thencurrent ratings assigned to the Securities by such Rating Agency;

 

*provided,however,*that noobligation or security shall be a Permitted Investment if (A) such obligationor security evidences a right to receive only interest payments, (B) the rightto receive principal and interest payments on such obligation or security arederived from an underlying investment that provides a yield to maturity inexcess of one hundred twenty percent (120%) of the yield to maturity at par ofsuch underlying investment or (C) such obligation or security has a remainingterm to maturity in excess of one (1) year.

 

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

 

**“****Personal****Property****”**shall have the meaning set forth in thegranting clause of the Mortgage.

 

**“****Policies****”**shall have the meaning set forth in Section8.1 hereof.

 

**“****Prohibited****Transfer****”**shall have the meaning set forth in Section7.2 hereof.

 

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

 

**“PropertyCondition Report”**shallmean a report prepared by a company satisfactory to Lender regarding thephysical condition of the Property, satisfactory in form and substance toLender in its sole discretion.

 

**“QualifiedManager”**shallmean (a) Manager or (b) a reputable and experienced professional managementorganization (i) which manages, together with its affiliates, at least ten (10)first class office buildings totaling at least 3,500,000 square feet of grossleasable area, exclusive of the Property and (ii) approved by Lender, whichapproval shall not have been unreasonably withheld and for which Lender shallhave received written confirmation from the

 

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Rating Agencies that theemployment of such manager will not result in a downgrade, withdrawal orqualification of the initial, or if higher, then current ratings issued inconnection with a Securitization, or if a Securitization has not occurred, anyratings to be assigned in connection with a Securitization.

 

**“RatingAgencies”** shallmean each of S&P, Moody’s and Fitch, or any other nationally-recognizedstatistical rating agency which has been approved by Lender.

 

**“REA”** shall mean any construction, operation andreciprocal easement agreement or similar agreement (including any separateagreement or other agreement between Borrower and one or more other parties toan REA with respect to such REA) affecting the Property or portion thereof.

 

**“Release”**shall have themeaning set forth in Section 12.5 hereof.

 

**“REMIC Trust”**shall mean a “realestate mortgage investment conduit” (within the meaning of Section 860D, orapplicable successor provisions, of the Code) that holds the Note.

 

**“Rents”**shall have themeaning set forth in the Mortgage.

 

**“Replacements”**shall have themeaning set forth in Section 9.2(a) hereof.

 

**“RequiredRepairs”**shallhave the meaning set forth in Section 9.1(a) hereof.

 

**“ReserveAccounts”**shallmean the Tax and Insurance Reserve Account.

 

**“ReserveFunds”** shall meanthe Tax and Insurance Reserve Funds.

 

**“Restoration”**shall mean, followingthe occurrence of a Casualty or a Condemnation which is of a type necessitatingthe repair of the Property, the completion of the repair and restoration of theProperty as nearly as possible to the condition the Property was in immediatelyprior to such Casualty or Condemnation, with such alterations as may bereasonably approved by Lender.

 

**“RestorationConsultant”**shallhave the meaning set forth in Section 8.4(b)(iii) hereof.

 

**“RestorationRetainage”**shallhave the meaning set forth in Section 8.4(b)(iv) hereof.

 

**“Restricted Party”** shall have the meaning set forth in Section7.1 hereof.

 

**“Sale orPledge”**shallhave the meaning set forth in Section 7.1 hereof.

 

**“Scheduled Payment Date**” shall have the meaning set forth in theNote.

 

**“Securities”**shall have themeaning set forth in Section 13.1 hereof.

 

**“SecuritiesAct”**shall meanthe Securities Act of 1933, as amended.

 

**“****Securities Liabilities****”**shall have the meaning set forth in Section13.5 hereof.

 

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**“Securitization”**shall have themeaning set forth in Section 13.1 hereof.

 

**“****Special Member****”**shall have the meaning set forth in Section6.1(c).

 

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

 

**“State”**shall mean the statein which the Property or any part thereof is located.

 

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

 

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

 

**“Taxes”**shall mean all realestate and personal property taxes, assessments, water rates or sewer rents,now or hereafter levied or assessed or imposed against the Property or partthereof.

 

**“Tenant”**shall mean any Personleasing, subleasing or otherwise occupying any portion of the Property under aLease or other occupancy agreement with Borrower, including, withoutlimitation, American Express, as tenant under the American Express Lease.

 

**“TenantDirection Letter”**shallhave the meaning set forth in Section 10.2(a)(i) hereof.

 

**“TitleInsurance Policy”**shallmean that certain ALTA mortgagee title insurance policy issued with respect tothe Property and insuring the lien of the Mortgage.

 

**“Transferee”**shall have themeaning set forth in Section 7.5 hereof.

 

**“TriggerRating”**shallmean the long-term unsecured debt rating of Guarantor (or American Express ifthere is no Guarantor) below BBB as issued by S&P or below Baa2 as issuedby Moody’s.

 

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

 

**Section 1.2.      Principlesof Construction.**

 

All references to sections and schedules areto 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, thewords “hereof,” “herein” and “hereunder” and words of similar import when usedin this Agreement shall refer to this Agreement as a whole and not to anyparticular provision of this Agreement. Unless otherwise specified, allmeanings attributed to defined terms herein shall be equally applicable to boththe singular and plural forms of the terms so defined.

 

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**ARTICLE 2GENERAL TERMS**

 

**Section 2.1.      LoanCommitment; Disbursement to Borrower**

 

(a)           Subjectto and upon the terms and conditions set forth herein, Lender hereby agrees tomake and Borrower hereby agrees to accept the Loan on the Closing Date.

 

(b)           Borrowermay request and receive only one borrowing in respect of the Loan and anyamount borrowed and repaid in respect of the Loan may not be reborrowed.

 

(c)           TheLoan shall be evidenced by the Note and secured by the Mortgage and the otherLoan Documents.

 

(d)           Borrowershall use the proceeds of the Loan to (i) pay the purchase price for acquiringthe Property, (ii) pay certain costs and expenses incurred in connection withthe closing of the Loan, as approved by Lender, (iv) fund any working capitalrequirements of the Property, and (v) distribute the balance, if any, to itsmembers.

 

**Section****2.2.      Loan Payments**

 

(a)           TheLoan and interest shall be payable pursuant to the terms of the Note.

 

**Section 2.3.      Prepayment**

 

The Loan may not be prepaid, in whole or inpart, except in strict accordance with the express terms and conditions of theNote.

 

**ARTICLE 3CONDITIONS PRECEDENT**

 

The obligation of Lender to make the Loanhereunder is subject to the fulfillment by Borrower or waiver by Lender of allthe conditions precedent to closing set forth in the application or term sheetfor the Loan delivered by Borrower to Lender and any commitment rider to theapplication for the Loan issued by Lender.

 

**ARTICLE 4REPRESENTATIONS AND WARRANTIES**

 

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

 

**Section 4.1.      Organization**

 

Borrower and each Borrower Principal (whennot an individual) (a) has been duly organized and is validly existing and ingood standing with requisite power and authority to own its properties and totransact the businesses in which it is now engaged, (b) is duly qualified to dobusiness and is in good standing in each jurisdiction where it is required tobe so qualified in

 

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connection with its properties, businesses and operations, (c)possesses all rights, licenses, permits and authorizations, governmental orotherwise, necessary to entitle it to own its properties and to transact thebusinesses in which it is now engaged, and the sole business of Borrower is theownership, management and operation of the Property, and (d) in the case ofBorrower, has full power, authority and legal right to mortgage, grant,bargain, sell, pledge, assign, warrant, transfer and convey the Propertypursuant to the terms of the Loan Documents, and in the case of Borrower andeach Borrower Principal, has full power, authority and legal right to keep andobserve all of the terms of the Loan Documents to which it is a party. Borrowerand each Borrower Principal represent and warrant that the chart attachedhereto as Exhibit A sets forth an accurate listing of the direct and indirectowners of the equity interests in Borrower, and each Borrower Principal (whennot an individual).

 

**Section 4.2.      Statusof Borrower**

 

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

 

**Section 4.3.      Validityof Documents**

 

Borrower and Borrower Principal have takenall necessary action to authorize the execution, delivery and performance ofthis Agreement and the other Loan Documents to which they are parties. ThisAgreement and such other Loan Documents have been duly executed and deliveredby or on behalf of Borrower and Borrower Principal and constitute the legal,valid and binding obligations of Borrower and Borrower Principal enforceableagainst Borrower and Borrower Principal in accordance with their respectiveterms, subject only to applicable bankruptcy, insolvency and similar lawsaffecting rights of creditors generally, and subject, as to enforceability, togeneral principles of equity (regardless of whether enforcement is sought in aproceeding in equity or at law).

 

**Section 4.4.      NoConflicts**

 

The execution, delivery and performance ofthis Agreement and the other Loan Documents by Borrower and Borrower Principalwill not conflict with or result in a breach of any of the terms or provisionsof, or constitute a default under, or result in the creation or imposition ofany lien, charge or encumbrance (other than pursuant to the Loan Documents)upon any of the property or assets of Borrower or Borrower Principal pursuantto the terms of any agreement or instrument to which Borrower or BorrowerPrincipal is a party or by which any of Borrower’s or Borrower Principal’sproperty or assets is subject, nor will such action result in any violation ofthe provisions of any statute or any order, rule or regulation of any

 

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Governmental Authorityhaving jurisdiction over Borrower or Borrower Principal or any of Borrower’s orBorrower Principal’s properties or assets, and any consent, approval,authorization, order, registration or qualification of or with any GovernmentalAuthority required for the execution, delivery and performance by Borrower orBorrower Principal of this Agreement or any of the other Loan Documents hasbeen obtained and is in full force and effect.

 

**Section 4.5.      Litigation**

 

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

 

**Section 4.6.      Agreements**

 

Borrower is not a party to any agreement orinstrument or subject to any restriction which would materially and adverselyaffect Borrower or the Property, or Borrower’s business, properties or assets,operations or condition, financial or otherwise. Borrower is not in default inany material respect in the performance, observance or fulfillment of any ofthe obligations, covenants or conditions contained in any agreement orinstrument to which it is a party or by which Borrower or the Property is bound.Borrower has no material financial obligation under any agreement or instrumentto which Borrower is a party or by which Borrower or the Property is otherwise bound,other than (a) obligations incurred in the ordinary course of the operation ofthe Property and (b) obligations under the Loan Documents.

 

**Section****4.7.**      **Solvency**

 

Borrower and each Borrower Principal have (a)not entered into the transaction or executed the Note, this Agreement or anyother Loan Documents with the actual intent to hinder, delay or defraud anycreditor and (b) received reasonably equivalent value in exchange for theirobligations under such Loan Documents. Giving effect to the Loan, the fairsaleable value of the assets of Borrower and each Borrower Principal exceedsand will, immediately following the making of the Loan, exceed the totalliabilities of Borrower and Borrower Principal, including, without limitation,subordinated, unliquidated, disputed and contingent liabilities. No petition inbankruptcy has been filed against Borrower, Borrower Principal, or AffiliatedManager in the last ten (10) years, and neither Borrower nor BorrowerPrincipal, or Affiliated Manager in the last ten (10) years has made anassignment for the benefit of creditors or taken advantage of any CreditorsRights Laws. Neither Borrower nor Borrower Principal, or Affiliated Manager is contemplatingeither the filing of a petition by it under any Creditors Rights Laws or theliquidation of all or a major portion of Borrower’s assets or property, andBorrower has no knowledge of any Person contemplating the filing of any suchpetition against Borrower or Borrower Principal, or Affiliated Manager.

 

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**Section 4.8.      Fulland Accurate Disclosure**

 

No statement of fact made by or on behalf ofBorrower or Borrower Principal in this Agreement or in any of the other LoanDocuments or in any other document or certificate delivered by or on behalf ofBorrower or Borrower Principal contains any untrue statement of a material factor omits to state any material fact necessary to make statements contained hereinor therein not misleading. There is no material fact, presently known toBorrower or Borrower Principal which has not been disclosed to Lender whichadversely affects, nor as far as Borrower or Borrower Principal can reasonablyforesee, might adversely affect, the Property or the business, operations orcondition (financial or otherwise) of Borrower or Borrower Principal.

 

**Section 4.9.      NoPlan Assets**

 

Borrower is not an “employee benefit plan,”as defined in Section 3(3) of ERISA, subject to Title I of ERISA, and none ofthe assets of Borrower constitutes or will constitute “plan assets” of one ormore such plans within the meaning of 29 C.F.R. Section 2510.3-101. Inaddition, (a) Borrower is not a “governmental plan” within the meaning ofSection 3(32) of ERISA and (b) transactions by or with Borrower are not subjectto state statutes regulating investment of, and fiduciary obligations withrespect to, governmental plans similar to the provisions of Section 406 ofERISA or Section 4975 of the Internal Revenue Code currently in effect, whichprohibit or otherwise restrict the transactions contemplated by this Agreement.

 

**Section 4.10.    Nota Foreign Person**

 

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

 

**Section 4.11.    Enforceability**

 

The Loan Documents are not subject to anyright of rescission, set-off, counterclaim or defense by Borrower, includingthe defense of usury, nor would the operation of any of the terms of the LoanDocuments, or the exercise of any right thereunder, render the Loan Documentsunenforceable, and neither Borrower nor Borrower Principal has asserted anyright of rescission, set-off, counterclaim or defense with respect thereto. NoDefault or Event of Default exists under or with respect to any Loan Document.

 

**Section 4.12.    BusinessPurposes**

 

The Loan is solely for the business purposeof Borrower, and is not for personal, family, household, or agriculturalpurposes.

 

**Section 4.13.    Compliance**

 

Except as expressly disclosed by Borrower toLender in writing in connection with the closing of the Loan, to Borrower’sknowledge, Borrower and the Property, and the use and operation thereof, complyin all material respects with all Legal Requirements, including, withoutlimitation, building and zoning ordinances and codes and the Americans withDisabilities Act. To Borrower’s knowledge, Borrower is not in default orviolation of any order,

 

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writ, injunction, decree ordemand of any Governmental Authority and Borrower has received no writtennotice of any such default or violation. There has not been committed byBorrower or, to Borrower’s knowledge, any other Person in occupancy of orinvolved with the operation or use of the Property any act or omissionaffording any Governmental Authority the right of forfeiture as against theProperty or any part thereof or any monies paid in performance of Borrower’sobligations under any of the Loan Documents.

 

**Section 4.14.    FinancialInformation**

 

Allfinancial data, including, without limitation, the balance sheets, statementsof cash flow, statements of income and operating expense and rent rolls, thathave been delivered to Lender in respect of Borrower, Borrower Principal and/orthe Property (a) are true, complete and correct in all material respects, (b)accurately represent the financial condition of Borrower, Borrower Principal orthe Property, as applicable, as of the date of such reports, and (c) to theextent prepared or audited by an independent certified public accounting firm,have been prepared in accordance with tax basis accounting throughout theperiods covered, except as disclosed therein. Borrower does not have anycontingent liabilities, liabilities for taxes, unusual forward or long-termcommitments or unrealized or anticipated losses from any unfavorablecommitments that are known to Borrower and reasonably likely to have a materialadverse effect on the Property or the current and/or intended operation thereof,except as referred to or reflected in said financial statements. Since the dateof such financial statements, there has been no materially adverse change inthe financial condition, operations or business of Borrower or BorrowerPrincipal from that set forth in said financial statements.

 

**Section4.15.    Condemnation**

 

NoCondemnation or other proceeding has been commenced or, to Borrower’s bestknowledge, is threatened or contemplated with respect to all or any portion ofthe Property or for the relocation of roadways providing access to theProperty.

 

**Section 4.16.    Utilitiesand****Public****Access; Parking**

 

Tothe best of Borrower’s knowledge, the Property has adequate rights of access topublic ways and is served by water, sewer, sanitary sewer and storm drain facilitiesadequate to service the Property for full utilization of the Property for itsintended uses. All public utilities necessary to the full use and enjoyment ofthe Property as currently used and enjoyed are located either in the publicright-of-way abutting the Property (which are connected so as to serve theProperty without passing over other property) or in recorded easements servingthe Property and such easements are set forth in and insured by the TitleInsurance Policy. All roads necessary for the use of the Property for itscurrent purposes have been completed and dedicated to public use and acceptedby all Governmental Authorities. The Property has, or is served by, parking tothe extent required to comply with all Legal Requirements.

 

**Section4.17.   ****Separate Lots**

 

TheProperty is assessed for real estate tax purposes as one or more whollyindependent tax lot or lots, separate from any adjoining land or improvementsnot constituting a part of such

 

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lot or lots, and no otherland or improvements is assessed and taxed together with the Property or anyportion thereof.

 

**Section 4.18.    Assessments**

 

ToBorrower’s knowledge, there are no pending or proposed special or otherassessments for public improvements or otherwise affecting the Property, norare there any contemplated improvements to the Property that may result in suchspecial or other assessments.

 

**Section4.19.    Insurance**

 

Borrowerhas obtained and has delivered to Lender either (a) certified copies of allPolicies or, to the extent such Policies are not available as of the ClosingDate, certificates of insurance with respect to all such Policies reflectingthe insurance coverages, amounts and other requirements set forth in thisAgreement or (b) the certificate of American Express that American Express is aself-insurer with respect to the occurrences referred to in Section 8.1 andthat the rating of American Express by the Rating Agencies has not fallen belowthe Trigger Rating.

 

**Section4.20.    Use of Property**

 

TheProperty is used exclusively for general office purposes and other appurtenantand related uses.

 

**Section4.21.    Certificate of Occupancy;Licenses**

 

Allcertificates of occupancy and to Borrower’s knowledge all certifications,permits, licenses and approvals, including, without limitation, certificates ofcompletion and any applicable liquor license required for the legal use,occupancy and operation of the Property for the purpose intended herein, havebeen obtained and are valid and in full force and effect. Borrower shall keepand maintain (or require American Express to maintain) all licenses necessaryfor the operation of the Property for the purpose intended herein. The usebeing made of the Property is in conformity with the final certificate ofoccupancy (or compliance, if applicable) and any other permits or licensesissued for the Property.

 

**Section4.22.    Flood Zone**

 

Noneof the Improvements on the Property are located in an area identified by theFederal Emergency Management Agency as an area having special flood hazards,or, if any portion of the Improvements is located within such area, Borrowerwill obtain or cause American Express to obtain the insurance prescribed inSection 8.1(a)(i) at any time during the term of the Loan when American Expressceases to be a self-insurer or when the rating of American Express by theRating Agencies falls below the Trigger Rating.

 

**Section4.23.    Physical Condition**

 

Exceptas set forth in the Property Condition Report, to Borrower’s knowledge, theProperty, including, without limitation, all buildings, improvements, parkingfacilities,

 

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sidewalks, storm drainagesystems, roofs, plumbing systems, HVAC systems, fire protection systems,electrical systems, equipment, elevators, exterior sidings and doors,landscaping, irrigation systems and all structural components, are in goodcondition, order and repair in all material respects. Except as set forth inthe Property Condition Report, to Borrower’s knowledge, there exist nostructural or other material defects or damages in the Property, as a result ofa Casualty or otherwise, and whether latent or otherwise. Borrower has notreceived notice from any insurance company or bonding company of any defects orinadequacies in the Property, or any part thereof, which would adversely affectthe insurability of the same or cause the imposition of extraordinary premiumsor charges thereon or of any termination or threatened termination of anypolicy of insurance or bond.

 

**Section 4.24.    Boundaries;Survey**

 

(a)           None of the Improvements which wereincluded in determining the appraised value of the Property lie outside theboundaries and building restriction lines of the Property to any materialextent, and (b) no improvements on adjoining properties encroach upon theProperty and no easements or other encumbrances upon the Property encroach uponany of the Improvements so as to materially affect the value or marketabilityof the Property.

 

**Section4.25.    Leases**

 

Theentire Property has been leased to American Express pursuant to the AmericanExpress Lease. (a) The American Express Lease is in full force and effect; (b)the premises demised under the American Express Lease have been completed andAmerican Express has accepted possession of and is in occupancy of the demisedpremises; (c) American Express has commenced the payment of rent under theAmerican Express Lease, there are no offsets, claims or defenses to theenforcement thereof and Borrower has no monetary obligations to AmericanExpress under the American Express Lease; (d) all Rents due and payable underthe American Express Lease have been paid and no portion thereof has been paidfor any period more than thirty (30) days in advance; (e) the rent payableunder the American Express Lease is the amount of fixed rent set forth in theAmerican Express Lease, and there is no claim or basis for a claim by AmericanExpress thereunder for an adjustment to the Rent; (f) Borrower is the soleowner of the entire landlord’s interest in the American Express Lease; (g) theAmerican Express Lease is the valid, binding and enforceable obligation ofBorrower and American Express thereunder and there are no agreements withAmerican Express with respect to the American Express Lease other than asexpressly set forth therein; (h) no Person has any possessory interest in, orright to occupy, the Property or any portion thereof except under the AmericanExpress Lease; (i) except for the right of first refusal set forth in Article 4and the right to offer to purchase the Property under Article 12, the AmericanExpress Lease does not contain any option or offer to purchase or right offirst refusal to purchase the Property or any part thereof; and (j) neither theAmerican Express Lease nor the Rents have been assigned or pledged except toLender, and no other Person has any interest therein.

 

**Section 4.26.    Filingand Recording Taxes**

 

Allmortgage, mortgage recording, stamp, intangible or other similar tax requiredto be paid by any Person under applicable Legal Requirements currently ineffect in connection with

 

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the execution, delivery,recordation, filing, registration, perfection or enforcement of any of the LoanDocuments, including, without limitation, the Mortgage, have been paid or willbe paid, and, under current Legal Requirements, the Mortgage is enforceable inaccordance with its terms by Lender (or any subsequent holder thereof).

 

**Section 4.27.    ManagementAgreement**

 

TheManagement Agreement is in full force and effect and there is no defaultthereunder by any party thereto and, to Borrower’s knowledge, no event hasoccurred that, with the passage of time and/or the giving of notice, wouldconstitute a default thereunder. No management fees under the ManagementAgreement are accrual and unpaid.

 

**Section4.28.   ****Illegal****Activity**

 

Noportion of the Property has been or will be purchased with proceeds of anyillegal activity, and no part of the proceeds of the Loan will be used inconnection with any illegal activity.

 

**Section 4.29.    ConstructionExpenses**

 

Allcosts and expenses of any and all labor, materials, supplies and equipment usedin the construction, maintenance or repair of the Improvements have been paidin full. To Borrower’s knowledge after due inquiry, there are no claims forpayment for work, labor or materials affecting the Property which are or maybecome a lien prior to, or of equal priority with, the Liens created by theLoan Documents.

 

**Section****4.30.    Personal Property**

 

Borrowerhas paid in full for, and is the owner of, all Personal Property (other thantenants’ property) used in connection with the operation of the Property, freeand clear of any and all security interests, liens or encumbrances, except forPermitted Encumbrances and the Lien and security interest created by the LoanDocuments.

 

**Section 4.31.    Taxes**

 

Borrowerand Borrower Principal have filed all federal, state, county, municipal, andcity income, personal property and other tax returns required to have beenfiled by them and have paid all taxes and related liabilities which have becomedue pursuant to such returns or pursuant to any assessments received by them.Neither Borrower nor Borrower Principal knows of any basis for any additionalassessment in respect of any such taxes and related liabilities for prioryears.

 

**Section 4.32.    PermittedEncumbrances**

 

Noneof the Permitted Encumbrances, individually or in the aggregate, materiallyinterferes with the benefits of the security intended to be provided by theLoan Documents, materially and adversely affects the value of the Property,impairs the use or the operation of the Property or impairs Borrower’s abilityto pay its obligations in a timely manner.

 

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**Section****4.33.   ****Federal Reserve Regulations**

 

Borrowerwill use the proceeds of the Loan for the purposes set forth in Section 2.1(d)hereof and not for any illegal activity. No part of the proceeds of the Loanwill 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 FederalReserve System or for any other purpose which would be inconsistent with suchRegulation U or any other Regulations of such Board of Governors, or for anypurposes prohibited by Legal Requirements or prohibited by the terms andconditions of this Agreement or the other Loan Documents.

 

**Section 4.34.    InvestmentCompany Act**

 

Borroweris not (a) an “investment company” or a company “controlled” by an “investmentcompany,” 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 ofthe Public Utility Holding Company Act of 1935, as amended; or (c) subject toany other federal or state law or regulation which purports to restrict orregulate its ability to borrow money.

 

**Section****4.35.   ****Reciprocal EasementAgreements**

 

(a)           Neither Borrower nor any other partyis currently in default (nor has any notice been given or received with respectto an alleged or current default) under any of the terms and conditions of theREA, and the REA remains unmodified and in full force and effect;

 

(b)           All easements granted pursuant to theREA which were to have survived the site preparation and completion ofconstruction (to the extent that the same has been completed), remain in fullforce and effect and have not been released, terminated, extinguished or dischargedby agreement or otherwise;

 

(c)           To the best of Borrower’s knowledge,all sums due and owing by Borrower to the other parties to the REA (or by theother parties to the REA to the Borrower) pursuant to the terms of the REA,including without limitation, all sums, charges, fees, assessments, costs, and expensesin connection with any taxes, site preparation and construction,non-shareholder contributions, and common area and other property managementactivities have been paid, are current, and no lien has attached on the Property(or threat thereof been made) for failure to pay any of the foregoing;

 

(d)           The terms, conditions, covenants,uses and restrictions contained in the REA do not conflict in any manner withany terms, conditions, covenants, uses and restrictions contained in any Leaseor in any agreement between Borrower and occupant of any peripheral parcel, includingwithout limitation, conditions and restrictions with respect to kioskplacement, tenant restrictions (type, location or exclusivity), sale of certaingoods or services, and/or other use restrictions; and

 

(e)           The terms, conditions, covenants,uses and restrictions contained in the American Express Lease do not conflictin any manner with any terms, conditions, covenants, uses and restrictionscontained in the REA, any other lease or in any agreement between Borrower and

 

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occupantof any peripheral parcel, including without limitation, conditions andrestrictions with respect to kiosk placement, tenant restrictions (type,location or exclusivity), sale of certain goods or services, and/or other userestrictions.

 

**Section 4.36.    NoChange in Facts or Circumstances; Disclosure**

 

Allinformation submitted by Borrower or its agents to Lender and in all financialstatements, reports, certificates and other documents submitted in connectionwith the Loan or in satisfaction of the terms thereof and all statements offact made by Borrower in this Agreement or in any other Loan Document, areaccurate, complete and correct in all material respects. There has been nomaterial adverse change in any condition, fact, circumstance or event thatwould make any such information inaccurate, incomplete or otherwise misleadingin any material respect or that otherwise materially and adversely affects ormight materially and adversely affect the Property or the business operationsor the financial condition of Borrower. Borrower has disclosed to Lender allmaterial facts and has not failed to disclose any material fact that couldcause any representation or warranty made herein to be materially misleading.

 

**Section****4.37.   ****Intellectual Property**

 

Alltrademarks, trade names and service marks necessary to the business of Borroweras presently conducted or as Borrower contemplates conducting its business arein good standing and, to the extent of Borrower’s actual knowledge,uncontested. Borrower has not infringed, is not infringing, and has notreceived notice of infringement with respect to asserted trademarks, tradenames and service marks of others. To Borrower’s knowledge, there is noinfringement by others of trademarks, trade names and service marks ofBorrower.

 

**Section 4.38.   ****Compliance****with Anti-Terrorism Laws**

 

Noneof Borrower, Borrower Principal or any Person who Controls Borrower or BorrowerPrincipal currently is identified by the Office of Foreign Assets Control,Department of the Treasury (**“OFAC”**) orotherwise qualifies as an Embargoed Person, and Borrower has implementedprocedures to ensure that no Person who now or hereafter owns a material director indirect equity interest in Borrower is an Embargoed Person or is Controlledby an Embargoed Person. To Borrower’s knowledge neither Borrower nor BorrowerPrincipal is in violation of any applicable law relating to anti-moneylaundering or anti-terrorism, including, without limitation, those related totransacting business with Embargoed Persons or the requirements of the Unitingand Strengthening America by Providing Appropriate Tools Required to Interceptand Obstruct Terrorism Act of 2001, U.S. Public Law 107-56, and the relatedregulations issued thereunder, including temporary regulations (collectively,as the same may be amended from time to time, the **“Patriot****Act”**). To thebest of Borrower’s knowledge, no tenant at the Property is currently identifiedby OFAC or otherwise qualifies as an Embargoed Person, or is owned orControlled by an Embargoed Person.

 

**Section 4.39.    Patriot Act**

 

NeitherBorrower nor Borrower Principal shall (a) be or become subject at any time toany law, regulation, or list of any government agency (including, withoutlimitation, the list maintained by OFAC and accessible through the OFACwebsite) that prohibits or limits any

 

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lender from making anyadvance or extension of credit to Borrower or from otherwise conductingbusiness with Borrower and Borrower Principal, or (b) fail to providedocumentary and other evidence of Borrower’s identity as may be requested byany lender at any time to enable any lender to verify Borrower’s identity or tocomply with any applicable law or regulation, including, without limitation,the Patriot Act. In addition, Borrower hereby agrees to provide to Lender anyadditional information that Lender deems necessary from time to time in orderto ensure compliance with all applicable laws concerning money laundering andsimilar activities.

 

**Section 4.40.    Survival**

 

Borrower agrees that, unless expressly provided otherwise, all of therepresentations and warranties of Borrower set forth in this Article 4 andelsewhere in this Agreement and in the other Loan Documents shall survive forso long as any portion of the Debt remains owing to Lender. Allrepresentations, warranties, covenants and agreements made in this Agreement orin the other Loan Documents by Borrower shall be deemed to have been reliedupon by Lender notwithstanding any investigation heretofore or hereafter madeby Lender or on its behalf.

 

**ARTICLE 5****BORROWER****COVENANTS**

 

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

 

**Section 5.1.      Existence;Compliance with Legal Requirements**

 

(a)           Borrower shall do orcause to be done all things necessary to preserve, renew and keep in full forceand effect its existence, rights, licenses, permits and franchises and comply withall Legal Requirements applicable to it and the Property. Borrower herebycovenants and agrees not to commit, permit or suffer to exist any act oromission affording any Governmental Authority the right of forfeiture asagainst the Property or any part thereof or any monies paid in performance ofBorrower’s obligations under any of the Loan Documents. Borrower shall at all timesmaintain, preserve and protect all franchises and trade names used inconnection with the operation of the Property. So long as American Express isin compliance with the terms of the American Express Lease with respect to thematters described in this Section 5.1, Borrower shall be deemed in compliancewith this Section 5.1.

 

(b)           Borrower, at its ownexpense, may contest or permit American Express to contest by appropriate legalproceeding, promptly initiated and conducted in good faith and with due diligence,the Legal Requirements affecting the Property, provided that (i) no Default orEvent of Default has occurred and is continuing; (ii) such proceeding shall bepermitted under and be conducted in accordance with the provisions of any otherinstrument to which Borrower or the Property is subject and shall not constitutea default thereunder; (iii) neither the Property, any part thereof or interesttherein, any of the tenants or occupants thereof, nor Borrower shall be affectedin any material adverse way as a result of such proceeding; (iv) non-compliancewith the

 

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Legal Requirements shall notimpose civil or criminal liability on Borrower or Lender; (v) unless thecontest is initiated and conducted by American Express pursuant to the AmericanExpress Lease Borrower shall have furnished the security as may be required inthe proceeding or by Lender to ensure compliance by Borrower with the LegalRequirements; and (vi) if the contest is initiated and conducted by Borrower,Borrower shall have furnished to Lender all other items reasonably requested byLender. Borrower shall give written notice to Lender of any contest initiatedand conducted by Borrower promptly after initiation thereof and shall informLender of any contest initiated and conducted by American Express of whichBorrower is given notice by American Express.

 

**Section****5.2.     ****Maintenance and****Use****of Property**

 

Borrower shall cause the Property to be maintained in a good and safecondition and repair. The Improvements and the Personal Property shall not be removed,demolished or except as may be expressly permitted under the American ExpressLease without the consent of the landlord thereunder, materially altered(except for normal replacement of the Personal Property) without the priorwritten consent of Lender. So long as American Express is in compliance withthe terms of the American Express Lease with respect to the matters describedin this Section 5.2, Borrower shall be deemed in compliance with this Section 5.2.If under applicable zoning provisions the use of all or any portion of theProperty is or shall become a nonconforming use, Borrower will not cause orpermit the nonconforming use to be discontinued or the nonconformingImprovement to be abandoned without the express written consent of Lender.

 

**Section****5.3.     ****Waste**

 

Borrower shall not commit or suffer any waste of the Property or makeany change in the use of the Property which will in any way materially increasethe risk of fire or other hazard arising out of the operation of the Property,or take any action that might invalidate or give cause for cancellation of anyPolicy, or do or permit to be done thereon anything that may in any way impairthe value of the Property or the security for the Loan. Borrower will not,without the prior written consent of Lender, permit any drilling or explorationfor or extraction, removal, or production of any minerals from the surface orthe subsurface of the Property, regardless of the depth thereof or the methodof mining or extraction thereof.

 

**Section 5.4.      Taxesand Other Charges**

 

(a)           Borrower shall payor cause American Express to pay all Taxes and Other Charges now or hereafterlevied or assessed or imposed against the Property or any part thereof as thesame become due and payable. Borrower shall furnish or cause to be furnished toLender such receipts for the payment of the Taxes and the Other Charges as aredelivered to Borrower by American Express and, upon request by Lender, acertificate from Borrower and Borrower Principal that as of the date of such certificatethere are no liens filed against the Property arising from the non-payment ofTaxes or Other Charges. Borrower shall not suffer nor permit American Expressto suffer and shall promptly cause to be paid and discharged any Lien or chargewhatsoever which may be or become a Lien or charge against the Property, andshall promptly pay for all utility services provided to the Property. So longas American Express is in

 

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compliance with the terms ofthe American Express Lease with respect to the matters described in thisSection 5.4, Borrower shall be deemed in compliance with this Section 5.4.

 

(b)           Borrower, at its own expense, maycontest or permit American Express to contest by appropriate legal proceeding,promptly initiated and conducted in good faith and with due diligence, theamount or validity or application in whole or in part of any Taxes or OtherCharges, provided that (i) no Default or Event of Default has occurred andremains uncured; (ii) such proceeding shall be permitted under and be conductedin accordance with the provisions of any other instrument to which Borrower issubject and shall not constitute a default thereunder and such proceeding shallbe conducted in accordance with all applicable Legal Requirements; (iii)neither the Property nor any part thereof or interest therein will be in dangerof being sold, forfeited, terminated, canceled or lost; (iv) Borrower shallpromptly upon final determination thereof pay the amount of any such Taxes orOther Charges, together with all costs, interest and penalties which may bepayable in connection therewith; (v) such proceeding shall suspend thecollection of such contested Taxes or Other Charges from the Property; and (vi)Borrower shall furnish or cause American Express to furnish (but only to theextent required to be furnished by American Express under the American ExpressLease) such security as may be required in the proceeding, or deliver to Lendersuch reserve deposits as may be requested by Lender, to insure the payment ofany such Taxes or Other Charges, together with all interest and penaltiesthereon (unless Borrower or American Express has paid all of the Taxes or OtherCharges under protest). Lender may pay over any such cash deposit or partthereof held by Lender to the claimant entitled thereto at any time when, inthe judgment of Lender, the entitlement of such claimant is established or theProperty (or part thereof or interest therein) shall be in danger of being sold,forfeited, terminated, canceled or lost or there shall be any danger of theLien of the Mortgage being primed by any related Lien.

 

**Section 5.5.      Litigation**

 

Borrowershall give prompt written notice to Lender of any litigation or governmentalproceedings pending or threatened in writing against Borrower which mightmaterially adversely affect Borrower’s condition (financial or otherwise) orbusiness or the Property.

 

**Section5.6.     ****Access to Property**

 

Borrower shall permit agents, representatives and employees of Lenderto inspect the Property or any part thereof at reasonable hours upon reasonableadvance notice, subject to the rights of American Express under the AmericanExpress Lease.

 

**Section5.7.****     ****Notice of Default**

 

Borrowershall promptly advise Lender of any material adverse change in the condition(financial or otherwise) of Borrower, any Borrower Principal or the Property orof the occurrence of any Default or Event of Default of which Borrower hasknowledge and of any American Express Lease Default of which Borrower hasknowledge.

 

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**Section 5.8.      Cooperatein Legal Proceedings**

 

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

 

**Section 5.9.      Performanceby Borrower**

 

Borrowershall in a timely manner observe, perform and fulfill each and every covenant,term and provision to be observed and performed by Borrower under thisAgreement and the other Loan Documents and any other agreement or instrumentaffecting or pertaining to the Property and any amendments, modifications orchanges thereto.

 

**Section 5.10.    Awards;Insurance Proceeds**

 

Borrowershall cooperate with Lender in obtaining for Lender the benefits of any Awardsor Insurance Proceeds lawfully or equitably payable to Borrower in connectionwith the Property, and Lender shall be reimbursed for any expenses incurred inconnection therewith (including reasonable, actual attorneys’ fees anddisbursements, and the payment by Borrower of the expense of an appraisal onbehalf of Lender in case of a Casualty or Condemnation affecting the Propertyor any part thereof) out of such Awards or Insurance Proceeds. The actualpayment of any Awards shall be governed by Section 8.4 hereof.

 

**Section 5.11.    FinancialReporting**

 

(a)           Borrower and Borrower Principal shallkeep adequate books and records of account in accordance with federal tax basisaccounting, or in accordance with other methods acceptable to Lender in itssole discretion, consistently applied and shall furnish to Lender:

 

(i)            prior to aSecuritization, at the request of Lender, monthly, and following aSecuritization, quarterly and annual certificates signed and dated by Borrower,certifying that the American Express Lease is in full force and effect, whetherany defaults (or any matter that, with the passage of time or the giving ofnotice, could become a default) exist thereunder and any other information asis reasonably required by Lender, within twenty (20) days after the end of eachcalendar month, thirty (30) days after the end of each fiscal quarter or onehundred twenty (120) days after the close of each fiscal year of Borrower, asapplicable;

 

(ii)           prior to aSecuritization, at the request of Lender, monthly, and following a Securitization,quarterly and annual operating statements of the Property, prepared andcertified by Borrower in the form required by Lender, detailing the revenuesreceived, the expenses incurred and the net operating income before and afterdebt service (principal and interest) and major capital improvements(including, without limitation, any capital improvements planned by AmericanExpress of which Borrower has notice) for the period of calculation andcontaining appropriate year-to-date information, within twenty (20) days afterthe end of each calendar month, thirty (30) days after the end of each

 

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fiscalquarter or one hundred (120) days after the close of each fiscalyear of Borrower, as applicable;

 

(iii)          annual balancesheets, profit and loss statements, statements of cash flows, and statements ofchange in financial position of Borrower and BorrowerPrincipal in the form required by Lender prepared and certified by Borrower andBorrower Principal within one hundred twenty (120)days after the close of each fiscal year of Borrower and Borrower Principal, asthe case may be (provided that with respect to Borrower, such statements may bedelivered by the holder(s) of beneficial interests in Borrower in accordancewith Section 6.1(a)(viii); and

 

(iv)          all financialstatements, operating statements, budgets, capital repair estimates orprojections and certifications of any kind with respect to theforegoing delivered to Borrower by American Express under the American ExpressLease.

 

(b)           To the extent not inconsistent withthe provisions of Section 5.11(a) hereof (e.g., GAAP accounting and auditsshall not be required ), Borrower and Borrower Principal shall furnish Lenderwith such other additional financial or management information (including stateand federal tax returns) as may, from time to time, be reasonably required byLender in form and substance satisfactory to Lender (including, withoutlimitation, any financial reports required to be delivered by any Tenant or anyguarantor of any Lease pursuant to the terms of such Lease), and shall furnishto Lender and its agents convenient facilities for the examination and audit ofany such books and records

 

(c)           Without limiting any other rightsavailable to Lender under this Loan Agreement or any of the other LoanDocuments, in the event Borrower shall fail to timely furnish Lender anyfinancial document or statement in accordance with this Section 5.11, Borrowershall promptly pay to Lender a non-refundable charge in the amount of $500 foreach such failure. The payment of such amount shall not be construed to relieveBorrower of any Event of Default hereunder arising from such failure.

 

(d)           All items requiring the certificationof Borrower shall, except where Borrower is an individual, require acertificate executed by the general partner, managing member or chief executiveofficer of Borrower, as applicable (and the same rules shall apply to any sole shareholder,general partner or managing member which is not an individual).

 

**Section 5.12.   ****Estoppel Statement**

 

(a)           After request by Lender, Borrowershall within ten (10) Business Days furnish Lender with a statement, dulyacknowledged and certified, setting forth (i) the amount of the originalprincipal amount of the Note, (ii) the rate of interest on the Note, (iii) theunpaid principal amount of the Note, (iv) the date installments of interestand/or principal were last paid, (v) any offsets or defenses to the payment ofthe Debt, if any, and (vi) that the Note, this Agreement, the Mortgage and theother Loan Documents are valid, legal and binding obligations and have not beenmodified or if modified, giving particulars of such modification.

 

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(b)                                 Borrower shall use its best efforts todeliver to Lender, promptly upon request, a duly executed estoppel certificatefrom American Express on the form attached to the AmericanExpress Lease as an exhibit.

 

**Section 5.13.****          ****Leasing Matters.**

 

(a)                                  Borrower (i) shall observe and perform allthe obligations imposed on the landlord under the American ExpressLease and shall not do or permit to be done anything to impair the value of theAmerican Express Lease as security for the Debt; (ii) shall promptly send copiesto Lender of all notices of default which Borrower shall send or receivethereunder; (iii) shall enforce all of the material terms, covenants andconditions contained in the American Express Lease on the part of the tenantthereunder to be observed or performed; (iv) shall not collect any of the Rentsmore than one (1) month in advance; (v) shall not execute any other assignmentof the landlord’s interest in the American Express Lease or the Rents; and (vi)shall not consent to any assignment of or subletting under the American ExpressLease not in accordance with its terms without the prior written consent ofLender.

 

(b)                                 Borrower shall not, without the prior writtenconsent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrenderof space under or shorten the term of the American Express Lease.

 

**Section 5.14.****          ****Property Management**

 

(a)                                  Borrower shall (i) promptly perform andobserve all of the covenants required to be performed and observed by it underthe Management Agreement and do all things necessary to preserve and to keepunimpaired its material rights thereunder; (ii) promptly notify Lender of anydefault under the Management Agreement of which it is aware; (iii) promptlydeliver to Lender a copy of any notice of default or other material noticereceived by Borrower under the Management Agreement; (iv) promptly give noticeto Lender of any notice or information that Borrower receives which indicatesthat Manager is terminating the Management Agreement or that Manager isotherwise discontinuing its management of the Property; and (v) promptly enforcethe performance and observance of all of the covenants required to be performedand observed by Manager under the Management Agreement.

 

(b)                                 If at any time, (i) Manager shall becomeinsolvent or a debtor in a bankruptcy proceeding; (ii) an Event of Default hasoccurred and is continuing; or (iii) a default has occurred and is continuingafter the expiration of any applicable cure periods under the Management Agreement,Borrower shall, at the request of Lender, terminate the Management Agreement uponthirty (30) days prior notice to Manager and replace Manager with a QualifiedManager, it being understood and agreed that the management fee for suchreplacement manager shall not exceed then prevailing market rates.

 

(c)                                  In addition to the foregoing, in the eventthat Lender, in Lender’s reasonable discretion, at any time prior to thetermination of the Assignment of Management Agreement, determines that theProperty is not being managed in accordance with generally accepted managementpractices for projects similarly situated, Lender may deliver written noticethereof to Borrower and Manager, which notice shall specify with particularitythe grounds for Lender’s

 

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determination. If Lender reasonably determines that the conditionsspecified in Lender’s notice are not remedied to Lender’s reasonablesatisfaction by Borrower or Manager within thirty (30) days from the date ofsuch notice or that Borrower or Manager has failed to diligently undertakecorrecting such conditions within such thirty (30) day period, Lender maydirect Borrower to terminate the Management Agreement and to replace Managerwith a Qualified Manager on terms and conditions satisfactory to Lender, itbeing understood and agreed that the management fee for such replacementmanager shall not exceed then prevailing market rates.

 

(d)                                 Borrower shall not, without the prior writtenconsent of Lender (which consent shall not be unreasonably withheld,conditioned or delayed): (i) surrender, terminate or cancel the ManagementAgreement or otherwise replace Manager or enter into any other management agreementwith respect to the Property; (ii) reduce or consent to the reduction of theterm of the Management Agreement; (iii) increase or consent to the increase ofthe amount of any charges under the Management Agreement; or (iv) otherwisemodify, change, supplement, alter or amend, or waive or release any of itsrights and remedies under, the Management Agreement in any material respect. Inthe event that Borrower replaces Manager at any time during the term of Loanpursuant to this subsection, such Manager shall be a Qualified Manager.

 

(e)                                  Notwithstanding the foregoing, Borrower shallbe permitted to transfer the management of the Property to an Affiliate ofManager provided that the terms of the management contract between Borrower andsuch entity provides for fees no greater than, is on terms that aresubstantially similar to and is no less favorable to Borrower than theManagement Agreement in effect as of the date hereof.

 

**Section 5.15.****          ****Liens**

 

Borrower shall not, without the prior writtenconsent of Lender, create, incur, assume or suffer to exist any Lien on anyportion of the Property or permit any such action to be taken, except PermittedEncumbrances.

 

**Section 5.16.****          ****Debt Cancellation**

 

Borrower shall not cancel or otherwiseforgive or release any claim or debt owed to Borrower by any Person, except foradequate consideration and in the ordinary course of Borrower’s business.

 

**Section 5.17.****          ****Zoning**

 

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

 

**Section 5.18.****          ****ER1SA**

 

(a)                                  Borrower shall not engage in any transactionwhich would cause any obligation, or action taken or to be taken, hereunder (orthe exercise by Lender of any of its rights under the

 

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

 

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

 

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

 

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

 

(C)                                Borrower qualifies as an “operating company” or a “real estate operatingcompany” within the meaning of 29 C.F.R. §2510.3-l01(c) or (e).

 

**Section 5.19.****          ****No Joint Assessment**

 

Borrower shall not suffer, permit or initiatethe joint assessment of the Property with (a) any other real propertyconstituting a tax lot separate from the Property, or (b) any portion of theProperty which may be deemed to constitute personal property, or any otherprocedure whereby the Lien of any taxes which may be levied against suchpersonal property shall be assessed or levied or charged to the Property.

 

**Section 5.20.****          ****Reciprocal EasementAgreements**

 

Borrower shall not enter into, terminate ormodify any REA without Lender’s prior written consent, which consent shall notbe unreasonably withheld, conditioned or delayed. Borrower shall enforce,comply with, and cause each of the parties to the REA to comply with all of thematerial economic terms and conditions contained in the REA, provided thatBorrower may agree, without Lender’s consent, to modifications to any REA or togrant easements with respect to the Property which could not reasonably beexpected to have a material adverse effect on the use, value or operation ofthe Property, on the ability of American Express to perform its obligationsunder the American Express Lease or on Borrower’s ability to perform itsobligations under the Loan Documents.

 

**ARTICLE 6ENTITY COVENANTS**

 

**Section 6.1.****                 ****Single PurposeEntity/Separateness**

 

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

 

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(a)                                  Borrower has not and will not:

 

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

 

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

 

(iii)                               except as expressly provided in Article 7hereof, merge into or consolidate with any Person, or dissolve, terminate,liquidate in whole or in part, transfer or otherwise dispose of all orsubstantially all of its assets or change its legal structure;

 

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

 

(v)                                 own any subsidiary, or make any investmentin, any Person;

 

(vi)                              commingle its assets with the assets of anyother Person, or permit any Affiliate or constituent party independent accessto its bank accounts;

 

(vii)                           incur any debt, secured or unsecured, director contingent (including guaranteeing any obligation), other than, (A) theDebt, (B) trade and operational indebtedness incurred in the ordinary course ofbusiness with trade creditors, provided such indebtedness is (1) unsecured, (2)not evidenced by a note, (3) on commercially reasonable terms and conditions,and (4) due not more than sixty (60) days past the date incurred and paid on orprior to such date, and/or (C) financing leases and purchase money indebtednessincurred in the ordinary course of business relating to Personal Property oncommercially reasonable terms and conditions; provided however, the aggregateamount of the indebtedness described in (B) and (C) shall not exceed at anytime three percent (3%) of the outstanding principal amount of the Note;

 

(viii)                        permit its records, books of account, bankaccounts, financial statements and accounting records (including with respectto financial position, assets, liabilities, net worth and operating results) tobe shown on the financial statements of any holder of a beneficial interest inBorrower unless such financial statements shall contain a footnote indicatingthat Borrower is a separate legal entity and the assets of Borrower are notavailable as collateral to creditors of such holder;

 

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

 

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

 

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

 

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

 

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

 

(xiv)                         fail either to hold itself out to the publicas a legal entity separate and distinct from any other Person or to conduct itsbusiness solely in its own name or fail to correct any known misunderstandingregarding its separate identity;

 

(xv)                            fail to maintain adequate capital for thenormal obligations reasonably foreseeable in a business of its size andcharacter and in light of its contemplated business operations (provided thatBorrower’s failure to do so solely because of a shortfall in cash flow derivedfrom the operation of the Property shall not, by itself, constitute a breach ofthis covenant);

 

(xvi)                         Without the unanimous written consent of allof its members, as applicable, and the written consent of 100% of the managersof Borrower, including, without limitation, the Independent Director, (a) fileor consent to the filing of any petition, either voluntary or involuntary, totake advantage of any Creditors Rights Laws, (b) seek or consent to theappointment of a receiver, liquidator or any similar official, (c) take any actionthat might cause such entity to become insolvent, or (d) make an assignment forthe benefit of creditors;

 

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

 

(xviii)                   fail to remain solvent or pay its ownliabilities (including, without limitation, salaries of its own employees) onlyfrom its own funds (provided that Borrower’s failure to do so solely because ofa shortfall in cash flow derived from the operation of the Property shall not,by itself, constitute a breach of this covenant);

 

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

 

(xx)                              violate or cause to be violated theassumptions made with respect to Borrower, Manager (if applicable) and theirrespective direct and/or indirect owners in any opinion letter pertaining tosubstantive consolidation delivered to Lender in connection with the Loan; or

 

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

 

(b)                                 The limited liability company agreement ofBorrower (the **“LLC Agreement”**) shall provide that (i) upon theoccurrence of any event that causes the sole member of Borrower (**“Member”**)to cease to be the member of Borrower (other than (A) upon an assignmentby Member of all of its limited liability company interest in Borrower and theadmission of the transferee in accordance with the Loan Documents and the LLCAgreement, or (B) the resignation of Member and the admission of an additionalmember of Borrower in accordance with the terms of the Loan Documents and theLLC Agreement), any person acting as Independent Director of Borrower shall,without any action of any other Person and simultaneously with the Memberceasing to be the member of Borrower, automatically be admitted to Borrower (**“Special Member”**)and shall continue Borrower without dissolution and (ii) Special Membermay not resign from Borrower or transfer its rights as Special Member unless(A) a successor Special Member has been admitted to Borrower as Special Memberin accordance with requirements of Delaware law and (B) such successor SpecialMember has also accepted its appointment as an Independent Director. The LLCAgreement shall further provide that (i) Special Member shall automaticallycease to be a member of Borrower upon the admission to Borrower of a substituteMember, (ii) Special Member shall be a member of Borrower that has no interestin the profits, losses and capital of Borrower and has no right to receive anydistributions of Borrower assets, (iii) pursuant to Section 18-301 of theDelaware Limited Liability Company Act (the **“Act”**),Special Member shall not be required to make any capital contributions toBorrower and shall not receive a limited liability company interest inBorrower, (iv) Special Member, in its capacity as Special Member, may not bindBorrower and (v) except as required by any mandatory provision of the Act,Special Member, in its capacity as Special Member, shall have no right to voteon, approve or otherwise consent to any action by, or matter relating to,Borrower, including, without limitation, the merger, consolidation orconversion of Borrower; provided, however, such prohibition shall not limit theobligations of Special Member, in its capacity as Independent Director, to voteon such matters required by the Loan Documents or the LLC Agreement. In orderto implement the admission to Borrower of Special Member, Special Member shallexecute a counterpart to the LLC Agreement. Prior to its admission to Borroweras Special Member, Special Member shall not be a member of Borrower.

 

Upon the occurrence of any event that causesthe Member to cease to be a member of Borrower, to the fullest extent permittedby law, the personal representative of Member shall, within ninety (90) daysafter the occurrence of the event that terminated the continued membership ofMember in Borrower, agree in writing (i) to continue Borrower and (ii) to theadmission of the personal representative or its nominee or designee, as thecase may be, as a substitute member of Borrower, effective as of the occurrenceof the event that terminated the continued membership of Member of Borrower inBorrower. Any action initiated by or brought against Member or Special Memberunder any Creditors Rights Laws shall not cause Member or Special Member tocease to be a member of Borrower and upon the occurrence of such an event, thebusiness of Borrower shall continue without dissolution. The LLC Agreementshall provide that each of Member and Special Member waives any right it mighthave to agree in writing to dissolve Borrower upon the occurrence of any actioninitiated by or brought against Member or Special Member under any CreditorsRights Laws, or the occurrence of an event that causes Member or Special Memberto cease to be a member of Borrower.

 

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**Section 6.2.****                 ****Change of Name, Identity orStructure**

 

Borrower shall not change or permit to bechanged (a) Borrower’s name, (b) Borrower’s identity (including its trade nameor names), (c) Borrower’s principal place of business set forth on the firstpage of this Agreement, (d) the corporate, partnership or other organizationalstructure of Borrower, or Borrower Principal, (e) Borrower’s state oforganization, or (f) Borrower’s organizational identification number, withoutin each case notifying Lender of such change in writing at least thirty (30)days prior to the effective date of such change and, in the case of a change inBorrower’s structure, without first obtaining the prior written consent of Lender.In addition, Borrower shall not change or permit to be changed anyorganizational documents of Borrower if such change would adversely impact thecovenants set forth in Section 6.1 and Section 6.4 hereof. Borrower authorizesLender to file any financing statement or financing statement amendmentrequired by Lender to establish or maintain the validity, perfection andpriority of the security interest granted herein. At the request of Lender, Borrowershall execute a certificate in form satisfactory to Lender listing the tradenames under which Borrower intends to operate the Property, and representingand warranting that Borrower does business under no other trade name withrespect to the Property. If Borrower does not now have an organizationalidentification number and later obtains one, or if the organizational identificationnumber assigned to Borrower subsequently changes, Borrower shall promptly notifyLender of such organizational identification number or change. Nothing in thisSection 6.2 shall be deemed to restrict any express rights granted to Borrowerunder Article 7 hereof.

 

**Section 6.3.****                 ****Business and Operations**

 

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

 

**Section 6.4.****                 ****Independent Director**

 

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

 

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(b)                                 The organizational documents of Borrowershall provide that the board of managers of Borrower shall not take any actionwhich, under the terms of any certificate of incorporation, by-laws or anyvoting trust agreement with respect to any common stock, requires an unanimousvote of the board of managers of Borrower unless at the time of such actionthere shall be at least one member of the board who is an Independent Director.Borrower will not, without the unanimous written consent of its board ofmanagers including the Independent Director, on behalf of Borrower, (i) file orconsent to the filing of any petition, either voluntary or involuntary, to takeadvantage of any applicable Creditors Rights Laws; (ii) seek or consent to theappointment of a receiver, liquidator or any similar official; (iii) take anyaction that might cause such entity to become insolvent; or (iv) make anassignment for the benefit of creditors.

 

**ARTICLE****7****NO****SALE****OR ENCUMBRANCE**

 

**Section 7.1.****                 ****Transfer Definitions**

 

For purposes of this Article 7 an **“Affiliated Manager”**shall mean anymanaging agent in which Borrower, Borrower Principal, or any affiliate of suchentities has, directly or indirectly, any legal, beneficial or economicinterest; **“Control”**shall mean thepower to direct the management and policies of a Restricted Party, directly orindirectly, whether through the ownership of voting securities or otherbeneficial interests, by contract or otherwise; **“Restricted Party”**shall mean Borrower, Borrower Principal,any Affiliated Manager, or any shareholder, partner, member or non-membermanager, or any direct or indirect legal or beneficial owner of Borrower,Borrower Principal, any Affiliated Manager or any non-member manager; and a **“Sale or Pledge”**shall mean a voluntary orinvoluntary sale, conveyance, mortgage, grant, bargain, encumbrance, pledge,assignment, grant of any options with respect to, or any other transfer ordisposition of (directly or indirectly, voluntarily or involuntarily, byoperation of law or otherwise, and whether or not for consideration or ofrecord) of a legal or beneficial interest.

 

**Section****7.2.**                  **No Sale/Encumbrance**

 

(a)                                  Borrower shall not cause or permit a Sale orPledge of the Property or any part thereof or any legal or beneficial interesttherein nor permit a Sale or Pledge of an interest in any Restricted Party (ineach case, a **“Prohibited Transfer”**), other than pursuant to the AmericanExpress Lease, without the prior written consent of Lender.

 

(b)                                 A Prohibited Transfer shall include, but notbe limited to, (i) an installment sales agreement wherein Borrower agrees tosell the Property or any part thereof for a price to be paid in installments;(ii) an agreement by Borrower leasing all or a substantial part of the Propertyfor other than actual occupancy by a space tenant thereunder or a sale,assignment or other transfer of, or the grant of a security interest in,Borrower’s right, title and interest in and to any Leases or any Rents; (iii)if a Restricted Party is a corporation, any merger, consolidation or Sale orPledge of such corporation’s stock or the creation or issuance of new stock inone or a series of transactions; (iv) if a Restricted Party is a limited orgeneral partnership or joint venture, any merger or consolidation or thechange, removal, resignation or addition of a general partner or the Sale orPledge of the partnership interest of any general or limited partner or anyprofits or proceeds relating to such partnership interests or the creation orissuance of new partnership

 

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interests;(v) if a Restricted Party is a limited liability company, any merger orconsolidation or the change, removal, resignation or addition of a managingmember or non-member manager (or if no managing member, any member) or the Saleor Pledge of the membership interest of any member or any profits or proceedsrelating to such membership interest; (vi) if a Restricted Party is a trust ornominee trust, any merger, consolidation or the Sale or Pledge of the legal orbeneficial interest in a Restricted Party or the creation or issuance of newlegal or beneficial interests; or (vii) the removal or the resignation of theManager (including, without limitation, an Affiliated Manager) other than inaccordance with Section 5.14.

 

**Section7.3.****                 ****Permitted Transfers**

 

Notwithstanding the provisions of Section7.2, the following transfers shall not be deemed to be a Prohibited Transfer:(a) a transfer by devise or descent or by operation of law upon the death of amember, partner or shareholder of a Restricted Party, so long as Borrowerdelivers notice to Lender as soon as practicable thereafter and that suchRestricted Party is promptly reconstituted, if applicable, following the deathof such member, partner or shareholder and there is no change in Control ofsuch Restricted Party as a result of such transfer; (b) the Sale or Pledge, inone or a series of related transactions, of not more than forty-nine percent(49%) of the stock, limited partnership interests or non-managing membershipinterests (as the case may be) in a Restricted Party; provided, however, nosuch transfers shall result in a change in Control in the Restricted Party orchange in control of the Property, and as a condition to each such transfer,Lender shall receive not less than thirty (30) days prior written notice ofsuch proposed transfer. Notwithstanding the foregoing, any one or more of thetransfers that results in any Person owning in excess of forty-nine percent(49%) of the ownership interest in a Restricted Party shall comply with therequirements of Section 7.4.

 

**Section 7.4.****                 ****Lender’s Rights**

 

Lender reserves the right to condition theconsent to a Prohibited Transfer requested hereunder upon (a) a modification ofthe terms hereof and an assumption of the Note and the other Loan Documents asso modified by the proposed Prohibited Transfer, (b) receipt of payment of atransfer fee equal to one percent (1%) of the outstanding principal balance ofthe Loan and all of Lender’s expenses incurred in connection with suchProhibited Transfer, (c) receipt of written confirmation from the RatingAgencies that the Prohibited Transfer will not result in a downgrade,withdrawal or qualification of the initial, or if higher, then current ratingsissued in connection with a Securitization, or if a Securitization has notoccurred, any ratings to be assigned in connection with a Securitization, (d)the proposed transferee’s continued compliance with the covenants set forth inthis Agreement (including, without limitation, the covenants in Article 6) andthe other Loan Documents, (e) a new manager for the Property and a newmanagement agreement satisfactory to Lender, and (f) the satisfaction of suchother conditions and/or legal opinions as Lender shall determine in its solediscretion to be in the interest of Lender. All expenses incurred by Lendershall be payable by Borrower whether or not Lender consents to the ProhibitedTransfer. Lender shall not be required to demonstrate any actual impairment ofits security or any increased risk of default hereunder in order to declare theDebt immediately due and payable upon a Prohibited Transfer made without Lender’sconsent. This provision shall apply to each and every Prohibited Transfer,whether or not Lender has consented to any previous Prohibited Transfer. In theevent an opinion letter pertaining to

 

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substantive consolidationwas delivered to Lender and the Rating Agencies in connection with the closingof the Loan, and if any Sale or Pledge permitted under this Article 7 resultsin any Person and its Affiliates owning in excess of forty-nine percent (49%)of the ownership interests in a Restricted Party, Borrower shall, prior to suchtransfer, and in addition to any other requirement for Lender consent containedherein, deliver a revised substantive non-consolidation opinion letter toLender reflecting such Prohibited Transfer, which opinion shall be in form,scope and substance acceptable in all respects to Lender and the RatingAgencies.

 

**Section 7.5.****                 ****Assumption**

 

Notwithstanding the foregoing provisions ofthis Article 7, following the date which is six (6) months from the ClosingDate, Lender shall not unreasonably withhold consent to a transfer of theProperty in its entirety to, and the related assumption of the Loan by, anyPerson (a **“Transferee”**) provided that each of thefollowing terms and conditions are satisfied:

 

(a)                                  no Default or Event of Default has occurred;

 

(b)                                 Borrower shall have (i) delivered writtennotice to Lender of the terms of such prospective transfer not less thanforty-five (45) days before the date on which such transfer is scheduled toclose and, concurrently therewith, all such information concerning the proposedTransferee as Lender shall reasonably require and (ii) paid to Lender anon-refundable processing fee in the amount of $10,000. Lender shall have theright to approve or disapprove the proposed transfer based on its then currentunderwriting and credit requirements for similar loans secured by similarproperties which loans are sold in the secondary market, such approval not tobe unreasonably withheld. In determining whether to give or withhold itsapproval of the proposed transfer, Lender shall consider the experience andtrack record of Transferee and its principals in owning and operatingfacilities similar to the Property, the financial strength of Transferee andits principals, the general business standing of Transferee and its principalsand Transferee’s and its principals’ relationships and experience withcontractors, vendors, tenants, lenders and other business entities; provided,however, that, notwithstanding Lender’s agreement to consider the foregoingfactors in determining whether to give or withhold such approval, such approvalshall be given or withheld based on what Lender determines to be commerciallyreasonable and, if given, may be given subject to such conditions as Lender maydeem reasonably appropriate;

 

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

 

(d)                                 (i) Transferee shall have assumed and agreedto pay the Debt as and when due subject to the provisions of Article 15 hereofand, prior to or concurrently with the closing of such transfer, Transferee andits constituent partners, members or shareholders as Lender may require, shallhave executed, without any cost or expense to Lender, such documents and agreementsas Lender shall reasonably require to evidence and effectuate said assumptionand (ii) if required by Lender, a Person affiliated with Transferee andacceptable to Lender shall have

 

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assumedthe obligations of Borrower Principal under the Loan Documents with respect toall acts and events occurring or arising after the transfer of the Propertypursuant to this Section 7.5;

 

(e)                                  Borrower and Transferee, without any cost toLender, shall furnish any information requested by Lender for the preparationof, and shall authorize Lender to file, new financing statements and financingstatement amendments and other documents to the fullest extent permitted byapplicable law, and shall execute any additional documents reasonably requestedby Lender;

 

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

 

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

 

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

 

(i)                                     Transferee shall furnish an opinion ofcounsel satisfactory to Lender and its counsel (A) that Transferee’s formationdocuments provide for the matters described in subparagraph (g) above, (B) thatthe assumption of the Debt has been duly authorized, executed and delivered,and that the Note, the Mortgage, this Agreement, the assumption agreement andthe other Loan Documents are valid, binding and enforceable against Transfereein accordance with their terms, (C) that Transferee and any entity which is acontrolling stockholder, member or general partner of Transferee, have beenduly organized, and are in existence and good standing, and (E) with respect tosuch other matters as Lender may reasonably request;

 

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

 

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

 

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(l)                                     Transferee shall, prior to such transfer,deliver a substantive non-consolidation opinion to Lender, which opinion shallbe in form, scope and substance acceptable in all respects to Lender and theRating Agencies.

 

A consent by Lender withrespect to a transfer of the Property in its entirety to, and the relatedassumption of the Loan by, a Transferee pursuant to this Section 7.5 shall notbe construed to be a waiver of the right of Lender to consent to any subsequentSale or Pledge of the Property. Upon the transfer of the Property pursuant tothis Section 7.5, Borrower and Borrower Principal shall be relieved of allliability under the Loan Documents for acts, events, conditions, orcircumstances occurring or arising after the date of such transfer, except tothe extent that such acts, events, conditions, or circumstances are theproximate result of acts, events, conditions, or circumstances that existedprior to the date of such transfer, whether or not discovered prior orsubsequent to the date of such transfer.

 

**Section 7.6.****                 ****Assumption by InlandPermitted Transferee**

 

Notwithstanding the foregoing provisions ofthis Article 7, Borrower shall be permitted to transfer the Property in itsentirety to, provided the Loan is simultaneously assumed by, an InlandPermitted Transferee, and provided further that each of the following terms andconditions is satisfied:

 

(a)                                  no Default or Event of Default has occurred;

 

(b)                                 Borrower shall have delivered written noticeto Lender of the terms of such prospective transfer not less than forty-five(45) days before the date on which such transfer is scheduled to close and,concurrently therewith, all such information concerning the proposed Transfereeas Lender shall reasonably require;

 

(c)                                  Borrower shall have paid to Lender allout-of-pocket costs and expenses, including reasonable attorneys’ fees,incurred by Lender in connection with the transfer;

 

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

 

(e)                                  Borrower and such Inland PermittedTransferee, without any cost to Lender, shall furnish any information requestedby Lender for the preparation of, and shall authorize Lender to file, newfinancing statements and financing statement amendments and other documents tothe fullest extent permitted by applicable law, and shall execute anyadditional documents reasonably requested by Lender;

 

(f)                                    Borrower shall have delivered to Lender,without any cost or expense to Lender, endorsements to Lender’s Title InsurancePolicy insuring that fee simple title to the Property is vested in such InlandPermitted Transferee (subject to Permitted Encumbrances), hazard

 

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insuranceendorsements or certificates and other similar materials as Lender may deemnecessary at the time of the transfer, all in form and substance satisfactory to Lender;

 

(g)                                 such Inland Permitted Transferee shall havefurnished to Lender, if such Inland Permitted Transferee is a corporation,partnership, limited liability company or other entity, all appropriate papersevidencing Transferee’s organization and good standing, and the qualificationof the signers to execute the assumption of the Debt, which papers shallinclude certified copies of all documents relating to the organization andformation of Transferee and of the entities, if any, which are partners ormembers of Transferee. Transferee and such constituent partners, members orshareholders of Transferee (as the case may be), as Lender shall require, shallcomply with the covenants set forth in Article 6 hereof, provided, however,that, (i) if such Inland Permitted Transferee is a limited partnership or alimited liability company (with more than one member), Lender may require that thegeneral partner or managing member of such Inland Permitted Transferee alsocomply with the covenants set forth in Article 6, as modified to state thatsuch general partner or managing member holds an interest in the InlandPermitted Transferee rather than an interest in the Property or (ii) if suchInland Permitted Transferee is a single member limited liability company, thestate of organization of such entity must be Delaware and the organizationaldocuments must provide for a springing member upon the bankruptcy ordissolution of the sole member;

 

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

 

(i)                                     Transferee shall furnish an opinion of counselsatisfactory to Lender and its counsel (A) that Transferee’s formationdocuments provide for the matters described in subparagraph (g) above, (B) thatthe assumption of the Debt has been duly authorized, executed and delivered,and that the Note, the Mortgage, this Agreement, the assumption agreement andthe other Loan Documents are valid, binding and enforceable against Transfereein accordance with their terms, (C) that Transferee and any entity which is acontrolling stockholder, member or general partner of Transferee, have beenduly organized, and are in existence and good standing, and (E) with respect tosuch other matters as Lender may reasonably request, including, withoutlimitation, customary single member limited liability company opinions in theevent that such Inland Permitted Transferee is a Delaware limited liabilitycompany; and

 

(j)                                     in the event a substantive non-consolidationopinion was required in connection with the closing of the Loan, Transfereeshall, prior to such transfer, deliver a substantive non-consolidation opinionto Lender, which opinion shall be in form, scope and substance acceptable inall respects to Lender and the Rating Agencies.

 

A consent by Lender with respect to a transfer of the Property in itsentirety to, and the related assumption of the Loan by, a Transferee pursuantto this Section 7.6 shall not be construed to be a waiver of the right ofLender to consent to any subsequent Sale or Pledge of the Property.

 

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**ARTICLE 8****INSURANCE;****CASUALTY; CONDEMNATION; RESTORATION**

 

**Section 8.1****                    ****Insurance**

 

(a)                                  Subject to the provisions of paragraph (g) ofthis Section 8.1, Borrower shall obtain and maintain, or cause American Expressto maintain, insurance for Borrower and the Property providing at least thefollowing coverages:

 

(i)                                     comprehensive “special causes of loss” formof insurance (or its equivalent) on the Improvements and the Personal Property(A) in an amount equal to not less than one hundred percent (100%) of the “FullReplacement Cost,” which for purposes of this Agreement shall mean actualreplacement value (exclusive of costs of excavations, foundations, undergroundutilities and footings) with a waiver of depreciation; (B) written on areplacement cost basis and containing either an agreed amount endorsement withrespect to the Improvements and Personal Property or a waiver of allco-insurance provisions; (C) providing for no deductible in excess of $10,000 forall such insurance coverage; (D) at all times insuring against at least thosehazards that are commonly insured against under a “special causes of loss” formof policy, as the same shall exist on the date hereof, and together with anyincrease in the scope of coverage provided under such form after the datehereof; and (E) if any of the Improvements or the use of the Property shall atany time constitute legal non-conforming structures or uses, providing coveragefor contingent liability from Operation of Building Laws, Demolition Costs andIncreased Cost of Construction Endorsements and containing an “Ordinance or LawCoverage” or “Enforcement” endorsement. In addition, Borrower shall obtain: (y)if any portion of the Improvements is currently or at any time in the futurelocated in a “special flood hazard area” designated by the Federal EmergencyManagement Agency, flood hazard insurance in an amount equal to the maximumamount of such insurance available under the National Flood Insurance Act of1968, the Flood Disaster Protection Act of 1973 or the National Flood InsuranceReform Act of 1994, as each may be amended; and (z) earthquake insurance inamounts and in form and substance reasonably satisfactory to Lender in theevent the Property is located in an area with a high degree of seismic risk,provided that the insurance pursuant to clauses (y) and (z) hereof shall be onterms consistent with the special causes of loss form required under thissubsection (i);

 

(ii)                                  commercial general liability insuranceagainst claims for personal injury, bodily injury, death or property damageoccurring upon, in or about the Property, with such insurance (A) to be on theso-called “occurrence” form with a general aggregate limit of not less than $2,000,000and a per occurrence limit of not less than $1,000,000; (B) to continue at notless than the aforesaid limit until required to be changed by Lender in writingby reason of changed economic conditions making such protection inadequate; and(C) to cover at least the following hazards: (1) premises and operations; (2)products and completed operations; (3) independent contractors; (4) blanketcontractual liability; and (5) contractual liability covering the indemnitiescontained in Article 12 and Article 14 hereof to the extent the same isavailable;

 

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(iii)                               if the rating of American Express issued bythe Rating Agencies falls below the Trigger Rating, loss of rents insurance orbusiness income insurance, as applicable, (A) with loss payable to Lender; (B)covering all risks required to be covered by the insurance provided for insubsection (i) above; and (C) which provides that after the physical loss tothe Improvements and Personal Property occurs, the loss of rents or income, asapplicable, will be insured until such rents or income, as applicable, eitherreturns to the same level that existed prior to the loss or the expiration oftwelve (12) months, whichever first occurs, and notwithstanding that the policymay expire prior to the end of such period; and (D) which contains an extendedperiod of indemnity endorsement which provides that after the physical loss tothe Improvements and Personal Property has been repaired, the continued loss ofincome will be insured until such income either returns to the same level itwas at prior to the loss, or the expiration of twelve (12) months from the datethat the Property is repaired or replaced and operations are resumed, whicheverfirst occurs, and notwithstanding that the policy may expire prior to the endof such period. The amount of such loss of rents or business income insurance,as applicable, shall be determined prior to the date hereof and at least onceeach year thereafter based on Borrower’s reasonable estimate of the grossincome from the Property for the succeeding period of coverage required above.All proceeds payable to Lender pursuant to this subsection shall be held byLender and shall be applied to the obligations secured by the Loan Documentsfrom time to time due and payable hereunder and under the Note; provided,however, that nothing herein contained shall be deemed to relieve Borrower ofits obligations to pay the obligations secured by the Loan Documents on therespective dates of payment provided for in the Note, this Agreement and theother Loan Documents except to the extent such amounts are actually paid out ofthe proceeds of such loss of rents or business income insurance, an applicable;

 

(iv)                              at all times during which structuralconstruction, repairs or alterations are being made with respect to theImprovements, and only if the Property coverage form does not otherwise apply,(A) owner’s contingent or protective liability insurance covering claims notcovered by or under the terms or provisions of the above mentioned commercialgeneral liability insurance policy; and (B) the insurance provided for insubsection (i) above written in a so-called Builder’s Risk Completed Value form(1) on a non-reporting basis, (2) against “special causes of loss” insuredagainst pursuant to subsection (i) above, (3) including permission to occupythe Property, and (4) with an agreed amount endorsement waiving co-insuranceprovisions;

 

(v)                                 workers’ compensation, subject to thestatutory limits of the State, and employer’s liability insurance in respect ofany work or operations on or about the Property, or in connection with theProperty or its operation (if applicable);

 

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

 

(vii)                           excess liability insurance in an amount notless than $75,000,000 per occurrence on terms consistent with the commercialgeneral liability insurance required under subsection (ii) above; and

 

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

 

With respect to the policies required to bemaintained pursuant to clauses (i) through (viii) above, Borrower shall usecommercially reasonable efforts, consistent with those of prudent owners ofinstitutional quality commercial real estate, to maintain insurance againstLosses resulting from acts of terrorism.

 

(b)                                 All insurance provided for in Section 8.1(a)shall be obtained under valid and enforceable policies (collectively, the **“Policies”**or in the singular, the **“Policy”**),****and shall be subjectto the approval of Lender as to insurance companies, amounts, deductibles, losspayees and insureds. The Policies shall be issued by financially sound andresponsible insurance companies authorized to do business in the State andhaving a claims paying ability rating of “A-” or better by S&P (or suchother ratings approved by Lender) and/or a general policy rating of “A” orbetter and a financial class of VIII or better by A.M. Best Company, Inc. ThePolicies described in Section 8.1(a) shall designate Lender and its successorsand assigns as additional insureds, mortgagees and/or loss payee as deemedappropriate by Lender. To the extent such Policies are not available as of theClosing Date, Borrower shall deliver to Lender prior to the Closing Date anAcord 28 or similar certificate of insurance evidencing the coverages and amountsrequired hereunder and, upon request of Lender as soon as available after theClosing Date, certified copies of all Policies. Not less than ten (10) daysprior to the expiration dates of any insurance coverage in place with respectto the Property, Borrower shall deliver to Lender an Acord 28 or similarcertificate, accompanied by evidence satisfactory to Lender of payment of the premiumsdue in connection therewith (the **“InsurancePremiums”**), and, assoon as available thereafter, certified copies of all renewal Policies.

 

(c)                                  Any blanket insurance Policy shallspecifically allocate to the Property the amount of coverage from time to timerequired hereunder and shall otherwise provide the same protection as would a separatePolicy insuring only the Property in compliance with the provisions of Section8.1(a).

 

(d)                                 All Policies provided for or contemplated bySection 8.1(a), except for the Policy referenced in Section 8.1(a)(v), shallname Borrower as the insured and Lender as the additional insured, as itsinterests may appear, and in the case of property damage, boiler and machinery,flood and earthquake insurance, shall contain a so-called New York standardnon-contributing mortgagee clause in favor of Lender providing that the lossthereunder shall be payable to Lender.

 

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

 

(i)                                     no act or negligence of Borrower, or anyoneacting for Borrower, or of any Tenant or other occupant, or failure to complywith the provisions of any Policy, which might otherwise result in a forfeitureof the insurance or any part thereof, shall in

 

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anyway affect the validity or enforceability of the insurance insofar as Lender isconcerned;

 

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

 

(iii)                               the issuers thereof shall give written noticeto Lender if the Policies have not been renewed thirty (30) days prior to itsexpiration; and

 

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

 

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

 

(g)                                 Notwithstanding any other provision hereof tothe contrary, Lender acknowledges that so long as no American Express LeaseDefault has occurred, Borrower shall not be required to obtain the insurancecoverages set forth in paragraphs (a)(i) through (viii) if (x) Guarantor (or AmericanExpress if there is no Guarantor) is a self-insurer and maintains a ratingissued by the Rating Agencies of not less than the Trigger Rating or (y)American Express maintains insurance with coverages and carriers in compliancewith the terms of the American Express Lease.

 

**Section 8.2.****                 ****Casualty**

 

If the Property shall be damaged ordestroyed, in whole or in part, by fire or other casualty (a **“Casualty”**), Borrower shall give prompt notice of such damage to Lender andshall promptly commence and diligently prosecute the Restoration of theProperty in accordance with Section 8.4, whether or not Lender makes any NetProceeds available pursuant to Section 8.4. Borrower shall pay all costs ofsuch Restoration whether or not such costs are covered by insurance. Lendermay, but shall not be obligated to make proof of loss if not made promptly byBorrower. Borrower shall adjust all claims for Insurance Proceeds inconsultation with, and approval of, Lender; provided, however, if an Event ofDefault has occurred and is continuing, Lender shall have the exclusive rightto participate in the adjustment of all claims for Insurance Proceeds.

 

**Section 8.3.****                 ****Condemnation**

 

Borrower shall promptly give Lender notice ofthe actual or threatened commencement of any proceeding for the Condemnation ofthe Property of which Borrower has knowledge and shall deliver to Lender copiesof any and all papers served in connection with such proceedings.

 

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Lender may participate in any such proceedings, and Borrower shall fromtime to time deliver to Lender all instruments requested by it to permit suchparticipation. Borrower shall, at its expense, diligently prosecute any suchproceedings, and shall consult with Lender, its attorneys and experts, andcooperate with them in the carrying on or defense of any such proceedings.Notwithstanding any taking by any public or quasi-public authority throughCondemnation or otherwise (including but not limited to any transfer made inlieu of or in anticipation of the exercise of such taking), Borrower shallcontinue to pay the Debt at the time and in the manner provided for its paymentin the Note and in this Agreement and the Debt shall not be reduced until anyAward shall have been actually received and applied by Lender, after thededuction 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 condemningauthority but shall be entitled to receive out of the Award interest at therate or rates provided herein or in the Note. If the Property or any portionthereof is taken by a condemning authority, Borrower shall promptly commenceand diligently prosecute the Restoration of the Property and otherwise complywith the provisions of Section 8.4, whether or not Lender makes any NetProceeds available pursuant to Section 8.4. If the Property is sold, throughforeclosure or otherwise, prior to the receipt by Lender of the Award, Lendershall have the right, whether or not a deficiency judgment on the Note shallhave been sought, recovered or denied, to receive the Award, or a portionthereof sufficient to pay the Debt. So long as no American Express LeaseDefault has occurred, the payment and allocation of any Awards shall begoverned by the American Express Lease.

 

**Section 8.4.****                 ****Restoration**

 

The following provisions shall apply inconnection with the Restoration of the Property:

 

(a)                                  If the Net Proceeds shall be less than$50,000 and the costs of completing the Restoration, shall be less than$50,000, the Net Proceeds will be disbursed by Lender to Borrower upon receipt,provided that all of the conditions set forth in Section 8.4(b)(i) are met and Borrowerdelivers to Lender a written undertaking to expeditiously commence and to satisfactorilycomplete with due diligence the Restoration in accordance with the terms ofthis Agreement.

 

(b)                                 If the Net Proceeds are equal to or greaterthan $50,000 or the costs of completing the Restoration are equal to or greaterthan $50,000, Lender shall makethe Net Proceeds available for the Restoration in accordance with the provisionsof this Section 8.4. The term **“Net Proceeds”**for purposes of this Section 8.4 shall mean: (i) the net amount of allinsurance proceeds received by Lender pursuant to Section 8.1(a)(i), (iv), (vi)and (viii) as a result of a Casualty, after deduction of its reasonable costsand expenses (including, but not limited to, reasonable counsel fees), if any,in collecting the same (**“Insurance Proceeds”**),or (ii) the net amount of the Award as a result of a Condemnation, afterdeduction of its reasonable costs and expenses (including, but not limited to,reasonable counsel fees), if any, in collecting the same (**“CondemnationProceeds”**), whichever the case may be.

 

(i)                                     The Net Proceeds shall be made available toBorrower for Restoration provided that each of the following conditions aremet:

 

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

 

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(B)                                (1) in the event the Net Proceeds areInsurance Proceeds, less than thirty percent (30%) of the total floor area ofthe Improvements on the Property has been damaged, destroyed or renderedunusable as a result of a Casualty, or (2) in the event the Net Proceeds areCondemnation Proceeds, less than ten percent (10%) of the land constituting theProperty is taken, such land is located along the perimeter or periphery of theProperty, and no portion of the Improvements is located on such land;

 

(C)                                The American Express Lease shall remain infull force and effect during and after completion of the Restoration withoutabatement of Rent;

 

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

 

(E)                                 Lender shall be satisfied that any operating deficits, including all scheduledpayments under the Note, which will be incurred with respect to the Property asa result of the occurrence of any such Casualty or Condemnation, whichever thecase may be, will be covered out of the insurance coverage referred toin Section 8.1(a)(iii) above;

 

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

 

(G)                                the Property and the use thereof after theRestoration will be in compliance with and permitted under all LegalRequirements;

 

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

 

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

 

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

 

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

 

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(ii)                                  The Net Proceeds shall be held by Lenderuntil disbursements commence, and, until disbursed in accordance with theprovisions of this Section 8.4, shall constitute additional security for the Debtand other obligations under the Loan Documents. The Net Proceeds shall bedisbursed by Lender to, or as directed by, Borrower from time to time duringthe course of the Restoration, upon receipt of evidence satisfactory to Lenderthat (A) all the conditions precedent to such advance, including those setforth in Section 8.4(b)(i), have been satisfied, (B) all materials installedand work and labor performed (except to the extent that they are to be paid forout of the requested disbursement) in connection with the related Restorationitem have been paid for in full, and (C) there exist no notices of pendency,stop orders, mechanic’s or materialman’s liens or notices of intention to filesame, or any other liens or encumbrances of any nature whatsoever on theProperty which have not either been fully bonded to the satisfaction of Lenderand discharged of record or in the alternative fully insured to thesatisfaction of Lender by the title company issuing the Title Insurance Policy.Notwithstanding the foregoing, Business Interruption Proceeds required to bemaintained by Borrower pursuant to section 8.1(a)(iii) shall be controlled byLender at all times, shall not be subject to the provisions of this Section 8.4and shall be used solely for the payment of the obligations under the LoanDocuments and Operating Expenses.

 

(iii)                               All plans and specifications required inconnection with the Restoration shall be subject to prior review and acceptancein all respects by Lender and by an independent consulting engineer selected byLender (the **“Restoration Consultant”**). Lender shall have the use of theplans and specifications and all permits, licenses and approvals required orobtained in connection with the Restoration. The identity of the contractors,subcontractors and materialmen engaged in the Restoration, as well as thecontracts in excess of $50,000 under which they have been engaged, shall besubject to prior review and acceptance by Lender and the RestorationConsultant. All costs and expenses incurred by Lender in connection with makingthe Net Proceeds available for the Restoration, including, without limitation,reasonable counsel fees and disbursements and the Restoration Consultant’sfees, shall be paid by Borrower.

 

(iv)                              In no event shall Lender be obligated to makedisbursements of the Net Proceeds in excess of an amount equal to the costsactually incurred from time to time for work in place as part of theRestoration, as certified by the Restoration Consultant, minus the RestorationRetainage. The term **“Restoration Retainage”**shallmean an amount equal to ten percent (10%) of the costs actually incurred forwork in place as part of the Restoration, as certified by the RestorationConsultant, until the Restoration has been completed. The Restoration Retainageshall be reduced to five percent (5%) of the costs incurred upon receipt byLender of satisfactory evidence that fifty percent (50%) of the Restoration hasbeen completed. The Restoration Retainage shall in no event, andnotwithstanding anything to the contrary set forth above in this Section 8.4(b),be less than the amount actually held back by Borrower from contractors,subcontractors and materialmen engaged in the Restoration. The RestorationRetainage shall not be released until the Restoration Consultant certifies toLender that the Restoration has been completed in accordance with theprovisions of this Section 8.4(b) and that all approvals necessary for there-occupancy and use of the Property have been obtained from all appropriateGovernmental Authorities, and Lender receives evidence satisfactory to

 

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Lenderthat the costs of the Restoration have been paid in full or will be paid infull out of the Restoration Retainage; provided, however, that Lender willrelease the portion of the Restoration Retainage being held with respect to anycontractor, subcontractor or materialman engaged in the Restoration as of thedate upon which the Restoration Consultant certifies to Lender that thecontractor, subcontractor or materialman has satisfactorily completed all workand has supplied all materials in accordance with the provisions of thecontractor’s, subcontractor’s or materialman’s contract, the contractor,subcontractor or materialman delivers the lien waivers and evidence of paymentin full of all sums due to the contractor, subcontractor or materialman as maybe reasonably requested by Lender or by the title company issuing the TitleInsurance Policy, and Lender receives an endorsement to the Title InsurancePolicy insuring the continued priority of the lien of the Mortgage and evidenceof payment of any premium payable for such endorsement. If required by Lender,the release of any such portion of the Restoration Retainage shall be approvedby the surety company, if any, which has issued a payment or performance bondwith respect to the contractor, subcontractor or materialman.

 

(v)                                 Lender shall not be obligated to makedisbursements of the Net Proceeds more frequently than once every calendarmonth.

 

(vi)                              If at any time the Net Proceeds or theundisbursed balance thereof shall not, in the reasonable opinion of Lender inconsultation with the Restoration Consultant, be sufficient to pay in full thebalance of the costs which are estimated by the Restoration Consultant to beincurred in connection with the completion of the Restoration, Borrower shalldeposit the deficiency (the **“Net ProceedsDeficiency”**) withLender before any further disbursement of the Net Proceeds shall be made. TheNet Proceeds Deficiency deposited with Lender shall be held by Lender and shallbe disbursed for costs actually incurred in connection with the Restoration onthe same conditions applicable to the disbursement of the Net Proceeds, anduntil so disbursed pursuant to this Section 8.4(b) shall constitute additionalsecurity for the Debt and other obligations under the Loan Documents.

 

(vii)                           The excess, if any, of the Net Proceeds andthe remaining balance, if any, of the Net Proceeds Deficiency deposited withLender after the Restoration Consultant certifies to Lender that theRestoration has been completed in accordance with the provisions of thisSection 8.4(b), and the receipt by Lender of evidence satisfactory to Lenderthat 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 shallhave occurred and shall be continuing under the Note, this Agreement or any ofthe other Loan Documents.

 

(c)                                  All Net Proceeds not required (i) to be madeavailable for the Restoration or (ii) to be returned to Borrower as excess NetProceeds pursuant to Section 8.4(b)(vii) may (x) be retained and applied byLender toward the payment of the Debt whether or not then due and payable insuch order, priority and proportions as Lender in its sole discretion shalldeem proper, or, (y) at the sole discretion of Lender, the same may be paid,either in whole or in part, to Borrower for such purposes and upon suchconditions as Lender shall designate.

 

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

 

(e)                                  Notwithstanding the foregoing, so long as noAmerican Express Lease Default has occurred, the Net Proceeds shall be used forrestoration of the Property in accordance with the provisions of the AmericanExpress Lease.

 

**ARTICLE 9REPLACEMENTS; RESERVE****FUNDS**

 

**Section 9.1.****                 ****Replacements**

 

Onan ongoing basis throughout the term of the Loan, Borrower shall make capitalrepairs, replacements and improvements necessary to keep the Property in goodorder and repair and in a good marketable condition or prevent deterioration ofthe Property. So long as no American Express Lease Default shall have occurred,the compliance by American Express with its obligations for maintenance of theProperty as set forth in the American Express Lease shall be deemed complianceby Borrower with the provisions of this Section 9.1.

 

**Section 9.2.****                 ****Tax and Insurance ReserveFunds**

 

If required by Lender following a default byAmerican Express under the American Express Lease Borrower shall establish anEligible Account with Lender or Lender’s agent sufficient to discharge Borrower’sobligations for the payment of Taxes and Insurance Premiums pursuant to Section5.4 and Section 8.1 hereof (the **“Tax andInsurance Reserve Account”**) Borrowershall deposit into the Tax and Insurance Reserve Account on each ScheduledPayment Date (a) one-twelfth of the Taxes that Lender estimates will be payableduring the next ensuing twelve (12) months or such higher amount necessary toaccumulate with Lender sufficient funds to pay all such Taxes at least thirty(30) days prior to the earlier of (i) the date that the same will becomedelinquent and (ii) the date that additional charges or interest will accruedue to the non-payment thereof, and (b) except to the extent Lender has waivedthe insurance escrow because the insurance required hereunder is maintained undera blanket insurance Policy acceptable to Lender in accordance with Section8.1(c), one-twelfth of the Insurance Premiums that Lender estimates will bepayable during the next ensuing twelve (12) months for the renewal of thecoverage afforded by the Policies upon the expiration thereof or such higheramount necessary to accumulate with Lender sufficient funds to pay all suchInsurance Premiums at least thirty (30) days prior to the expiration of thePolicies (said amounts in (a) and (b) above hereinafter called the **“Tax and Insurance Reserve Funds”**). Lender will apply the Tax and InsuranceReserve Funds to payments of Taxes and Insurance Premiums required to be madeby Borrower pursuant to Section 5.4 and Section 8.1 hereof. In making anydisbursement from the Tax and Insurance Reserve Account, Lender may do soaccording to any bill, statement or estimate procured from the appropriatepublic office or tax lien service (with respect to Taxes) or insurer or agent(with respect to Insurance Premiums), without inquiry into the accuracy of suchbill, statement or estimate or into the validity of any tax, assessment, sale,forfeiture, tax lien or title or claim

 

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thereof. If the amount of the Tax and Insurance Reserve Funds shallexceed the amounts due for Taxes and Insurance Premiums pursuant to Section 5.4and Section 8.1 hereof, Lender shall, in its sole discretion, return any excessto Borrower or credit such excess against future payments to be made to the Taxand Insurance Reserve Account. In allocating any such excess, Lender may dealwith the person shown on Lender’s records as being the owner of the Property.Any amount remaining in the Tax and Insurance Reserve Account after the Debthas been paid in full shall be returned to Borrower or the person shown onLender’s records as being the owner of the Property and no other party shallhave any right or claim thereto. If at any time Lender reasonably determinesthat the Tax and Insurance Reserve Funds are not or will not be sufficient topay Taxes and Insurance Premiums by the dates set forth in (a) and (b) above,Lender shall notify Borrower of such determination and Borrower shall pay toLender any amount necessary to make up the deficiency within ten (10) days after notice from Lender toBorrower requesting payment thereof.

 

**Section 9.3.****                 ****Reserve Funds Generally**

 

(a)                                  No earnings or interest on the ReserveAccounts shall be payable to Borrower. Neither Lender nor any loan servicerthat at any time holds or maintains the Reserve Accounts shall have anyobligation to keep or maintain such Reserve Accounts or any funds deposited thereinin interest-bearing accounts. If Lender or any such loan servicer elects in itssole and absolute discretion to keep or maintain any Reserve Accounts or anyfunds deposited therein in an interest-bearing account (i) the account shall bean Eligible Account, (ii) such funds shall not be invested except in PermittedInvestments, and (iii) all interest earned or accrued thereon shall be for theaccount of and be retained by Lender or such loan servicer.

 

(b)                                 Borrower grants to Lender a first-priorityperfected security interest in, and assigns and pledges to Lender, each of theReserve Accounts and any and all funds hereafter deposited therein asadditional security for payment of the Debt. Until expended or applied in accordanceherewith, the Reserve Accounts and the Reserve Funds shall constituteadditional security for the Debt. The provisions of this Section 9.9 areintended to give Lender or any subsequent holder of the Loan “control” of theReserve Accounts within the meaning of the UCC.

 

(c)                                  The Reserve Accounts and any and all ReserveFunds deposited therein shall be subject to the exclusive dominion and controlof Lender, which shall hold the Reserve Accounts and any or all Reserve Fundsnow or hereafter deposited therein subject to the terms and conditions of thisAgreement. Borrower shall have no right of withdrawal from the Reserve Accountsor any other right or power with respect to the Reserve Accounts or any or allof the Reserve Funds hereinafter deposited therein, except as expresslyprovided in this Agreement.

 

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

 

(e)                                  As long as no Event of Default has occurred,Lender shall make disbursements from the Reserve Accounts in accordance withthis Agreement. All such disbursements shall be

 

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deemed to have been expressly pre-authorized by Borrower, and shall notbe deemed to constitute the exercise by Lender of any remedies against Borrowerunless an Event of Default has occurred and is continuing and Lender hasexpressly stated in writing its intent to proceed to exercise its remedies as asecured party, pledgee or lienholder with respect to the Reserve Accounts.

 

(f)                                    The Reserve Funds shall not constitute escrowor trust funds and may be commingled with other monies held by Lender. Notwithstandinganything else herein to the contrary, Lender may commingle in one or moreEligible Accounts any and all funds controlled by Lender, including, withoutlimitation, funds pledged in favor of Lender by other borrowers, whether forthe same purposes as the Reserve Accounts or otherwise. Without limiting anyother provisions of this Agreement or any other Loan Document, the ReserveAccounts may be established and held in such name or names as Lender or itsloan servicer, as agent for Lender, shall deem appropriate, including, withoutlimitation, in the name of Lender or such loan servicer as agent for Lender. Inthe case of any Reserve Account which is held in a commingled account, Lenderor its loan servicer, as applicable, shall maintain records sufficient toenable it to determine at all times which portion of such account is related tothe Loan. The Reserve Accounts are solely for the protection of Lender andLender shall have no responsibility beyond the allowance of due credit for thesums actually received by Lender or beyond the reimbursement or payment of thecosts and expenses for which such accounts were established in accordance withtheir terms. Upon assignment of the Loan by Lender, any Reserve Funds shall beturned over to the assignee and any responsibility of Lender as assignor shallterminate. The requirements of this Agreement concerning Reserve Accounts in noway supersede, limit or waive any other rights or obligations of the partiesunder any of the Loan Documents or under applicable law.

 

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

 

(h)                                 Borrower will maintain the security interestcreated by this Section 9.9 as a first priority perfected security interest andwill defend the right, title and interest of Lender in and to the ReserveAccounts and the Reserve Funds against the claims and demands of all Personswhomsoever. At any time and from time to time, upon the written request ofLender, and at the sole expense of Borrower, Borrower will promptly and dulyexecute and deliver such further instruments and documents and will take suchfurther actions as Lender reasonably may request for the purpose of obtainingor preserving the full benefits of this Agreement and of the rights and powersherein granted.

 

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**ARTICLE 10CASH MANAGEMENT**

 

**Section10.1.****          ****Cash Management Account**

 

(a)                                  Borrower acknowledges and confirms thatBorrower has established, and Borrower covenants that it shall maintain anEligible Account into which Borrower shall, and shall cause Manager to, depositor cause to be deposited all Rents and other revenue from the Property duringthe Cash Management Period or upon the occurrence of an Event of Default priorto the commencement of the Cash Management Period pursuant to the terms ofSection 10.2 hereof (such account, the sub-accounts thereof, all funds at anytime on deposit therein and any proceeds, replacements or substitutions of suchaccount or funds therein, are referred to herein as the **“CashManagement Account”**).

 

(b)                                 The Cash Management Account shall be in thename of Borrower for the benefit of Lender, provided that Borrower shall be theowner of all funds on deposit in such accounts for federal and applicable stateand local tax purposes (except to the extent Lender retains any interest earnedon the Cash Management Account for its own account following the occurrence andduring the continuance of an Event of Default). Sums on deposit in the CashManagement Account shall not be invested except in such Permitted Investmentsas determined and directed by Lender and all income earned thereon shall be theincome of Borrower and be applied to and become part of the Cash ManagementAccount, to be disbursed in accordance with this Article 10. Lender shall haveno liability for any loss resulting from the investment of funds in PermittedInvestments in accordance with the terms and conditions of this Agreement.

 

(c)                                  The Cash Management Account shall be subjectto the exclusive dominion and control of Lender during the Cash ManagementPeriod or the continuance of an Event of Default and, except as otherwiseexpressly provided herein, neither Borrower, Manager nor any other partyclaiming on behalf of, or through, Borrower or Manager, shall have any right ofwithdrawal therefrom or any other right or power with respect thereto.

 

(d)                                 Borrower agrees to pay the customary fees andexpenses incurred in connection with maintaining the Cash Management Account.

 

(e)                                  Lender shall be responsible for theperformance only of such duties with respect to the Cash Management Account asare specifically set forth herein, and no duty shall be implied from anyprovision hereof. Lender shall not be under any obligation or duty to perform anyact which would involve it in expense or liability or to institute or defendany suit in respect hereof, or to advance any of its own monies. Borrower shallindemnify and hold Lender and its directors, employees, officers and agentsharmless from and against any loss, cost or damage (including, withoutlimitation, reasonable attorneys’ fees and disbursements) incurred by such partiesin connection with the Cash Management Account other than such as result fromthe gross negligence or willful misconduct of Lender or intentionalnonperformance by Lender of its obligations under this Agreement.

 

**Section 10.2.****          ****Deposits and Withdrawals**

 

(a)                                  Borrower represents, warrants and covenantsthat:

 

(i)                                     Concurrently with the execution of thisAgreement Borrower has executed and delivered to Lender an instruction letterin the form of Exhibit B attached hereto addressed to American Express (the “TenantDirection Letter”). Upon the occurrence of

 

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anEvent of Default or upon commencement of the Cash Management Period, Lender orLender’s agent shall have the right to deliver the Tenant Direction Letter toAmerican Express and all payments of Rent and other items payable under theAmerican Express Lease shall thereafter be sent directly to the Cash ManagementAccount;

 

(ii)           On the occurrenceof an Event of Default or the commencement of the Cash Management PeriodBorrower shall, and shall cause Manager to, instruct all Persons that maintainopen accounts with Borrower or Manager with respect to the Property or withwhom Borrower or Manager does business on an “accounts receivable” basis withrespect to the Property to deliver all payments due under such accounts to theCash Management Account. Neither Borrower nor Manager shall direct any suchPerson to make payments due under such accounts in any other manner;

 

(iii)          All Rents or otherincome from the Property received after the commencement of the Cash ManagementPeriod or the occurrence of an Event of Default shall (A) be deemed additionalsecurity for payment of the Debt and shall be held in trust for the benefit,and as the property, of Lender, (B) not be commingled with any other funds orproperty of Borrower or Manager, and (C) if received by Borrower or Managernotwithstanding the delivery of the Tenant Direction Letter, be deposited inthe Cash Management Account within one (1) Business Day of receipt;

 

(iv)          Without the priorwritten consent of Lender, so long as any portion of the Debt remains outstanding,during the Cash Management Period or the continuance of an Event of Defaultneither Borrower nor Manager shall terminate, amend, revoke or modify theTenant Direction Letter in any manner whatsoever or direct or cause AmericanExpress to pay any amount in any manner other than as provided in the TenantDirection Letter; and

 

(v)           So long as anyportion of the Debt remains outstanding, during the Cash Management Period orduring the continuance of an Event of Default neither Borrower, Manager nor anyother Person shall open or maintain any accounts other than the Cash ManagementAccount into which revenues from the ownership and operation of the Propertyare deposited.

 

(b)           IntentionallyOmitted.

 

(c)           Ifan Event of Default shall have occurred and be continuing or during a Cash ManagementPeriod, on each Scheduled Payment Date (and if such day is not a Business Day, thenthe immediately preceding day which is a Business Day) commencing the month immediatelyfollowing the month during which the Cash Management Period commences, Borrowerhereby irrevocably authorizes Lender to withdraw or allocate to thesub-accounts of the Cash Management Account, as the case may be, amountsreceived in the Cash Management Account, in each case to the extent that sufficientfunds remain therefor:

 

(i)            following a defaultby American Express under the American Express Lease, funds sufficient to paythe monthly deposits to the Tax and Insurance Reserve

 

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Accountshall be allocated to the Tax and Insurance Reserve Account to be held anddisbursed in accordance with Section 9.2;

 

(ii)           funds sufficient topay the Monthly Payment Amount shall he withdrawn and paid to Lender;

 

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

 

(iv)          funds sufficient topay Operating Expenses (to the extent actually incurred) for the followingmonth shall be allocated to the Operating Expense Reserve Account to be heldand disbursed to pay Operating Expenses;

 

(v)           funds in an amountequal to the balance (if any) remaining on deposit in the Cash ManagementAccount after the foregoing withdrawals and allocations shall be withdrawn andpaid to Lender to be applied to the principal amount of the Loan until theprincipal amount of the Loan is paid in full.

 

(d)           Notwithstandinganything to the contrary herein, Borrower acknowledges that Borrower isresponsible for monitoring the sufficiency of funds deposited in the Cash ManagementAccount and that Borrower is liable for any deficiency in available funds, irrespectiveof whether Borrower has received any account statement, notice or demand from Lenderor Lender’s servicer.  If the amount ondeposit in the Cash Management Account is insufficient to make all of thewithdrawals and allocations described in Section 10.2(c)(i) through (v) above,Borrower shall deposit such deficiency into the Cash Management Account within five(5) days (provided that such five day period shall not constitute a graceperiod for any default or Event of Default under this Agreement or any otherLoan Document based on a failure to satisfy any monetary obligation provided inany Loan Document).

 

(e)           Ifan Event of Default shall have occurred and be continuing, Borrower hereby irrevocablyauthorizes Lender to make any and all withdrawals from the Cash Management Accountand transfers between any Reserve Account as Lender shall determine in Lender’ssole and absolute discretion and Lender may use all funds contained in any suchaccounts for any purpose, including but not limited to repayment of the Debt insuch order, proportion and priority as Lender may determine in its sole andabsolute discretion.  Lender’s right towithdraw and apply funds as stated herein shall be in addition to all otherrights and remedies provided to Lender under this Agreement, the Note, theMortgage and the other Loan Documents.

 

**Section 10.3.    SecurityInterest**

 

(a)           Tosecure the full and punctual payment of the Debt and performance of allobligations of Borrower now or hereafter existing under this Agreement and theother Loan Documents, Borrower hereby grants to Lender a first-priorityperfected security interest in each of the Accounts and the Account Collateral.Furthermore, Borrower shall not, without obtaining the prior written consent ofLender, further pledge, assign or grant any security interest in any of theforegoing or permit any Lien to attach thereto or any levy to be made thereonor any UCC Financing Statements to be filed with respect thereto. Borrower willmaintain the security

 

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interest created by this Section 10.3(a) as a first priority perfectedsecurity interest and will defend the right, title and interest of Lender inand to each of the Accounts and the Account Collateral against the claims anddemands of all Persons whomsoever.

 

(b)           Borrowerauthorizes Lender to file any financing statement or statements required byLender to establish or maintain the validity, perfection and priority of thesecurity interest granted herein in connection with the Cash ManagementAccount. Borrower agrees that at any time and from time to time, at the expenseof Borrower, Borrower will promptly and duly execute and deliver all furtherinstruments and documents, and take all further action, that may be necessaryor desirable, or that Lender may reasonably request, in order to perfect andprotect any security interest granted or purported to be granted hereby(including, without limitation, any security interest in and to any PermittedInvestments) or to enable Lender to exercise and enforce its rights and remedieshereunder.

 

(c)           Uponthe occurrence of an Event of Default, Lender may exercise any or all of its rightsand remedies as a secured party, pledgee and lienholder with respect to theAccounts and the Account Collateral. Without limitation of the foregoing, uponany Event of Default, Lender may use the Accounts and the Account Collateralfor any of the following purposes: (A) repayment of the Debt, including, butnot limited to, principal prepayments and the prepayment premium applicable tosuch full or partial prepayment (as applicable); (B) reimbursement of Lenderfor all losses, fees, costs and expenses (including, without limitation,reasonable legal fees) suffered or incurred by Lender as a result of such Eventof Default; (C) payment of any amount expended in exercising any or all rightsand remedies available to Lender at law or in equity or under this Agreement orunder any of the other Loan Documents; (D) payment of any item as required orpermitted under this Agreement; or (E) any other purpose permitted by applicablelaw; provided, however, that any such application of funds shall not cure or bedeemed to cure any Event of Default. Without limiting any other provisionshereof, each of the remedial actions described in the immediately preceding sentenceshall be deemed to be a commercially reasonable exercise of Lender’s rights andremedies as a secured party with respect to the Accounts and the AccountCollateral and shall not in any event be deemed to constitute a setoff or aforeclosure of a statutory banker’s lien. Nothing in this Agreement shallobligate Lender to apply all or any portion of the Accounts and the AccountCollateral to effect a cure of any Event of Default, or to pay the Debt, or inany specific order of priority. The exercise of any or all of Lender’s rightsand remedies under this Agreement or under any of the other Loan Documentsshall not in any way prejudice or affect Lender’s right to initiate andcomplete a foreclosure under the Mortgage.

 

**ARTICLE 11EVENTS OF DEFAULT; REMEDIES**

 

**Section 11.1.    Eventof Default**

 

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

 

(a)          if any portion of the Debt is not paid on or prior to the tenth day followingthe date the same is due or if the entire Debt is not paid on or before theMaturity Date;

 

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(b)           exceptas otherwise expressly provided in the Loan Documents, if any of the Taxes orOther Charges are not paid when the same are due and payable, unless there is sufficientmoney in the Tax and Insurance Reserve Account for payment of amounts then due andpayable and Lender’s access to such money has not been constrained orrestricted in any manner;

 

(c)           shouldAmerican Express cease to be a self-insurer or if the rating of American expressissued by the Rating Agencies falls below the Trigger Rating, if (i) thePolicies are not kept in full force and effect, or (ii) the Accord 28 (orsimilar) certificate is not delivered to Lender in accordance with Section 8.1;

 

(d)           ifBorrower breaches any covenant with respect to itself contained in Article 6 orany covenant contained in Article 7 hereof;

 

(e)           ifany representation or warranty of, or with respect to, Borrower or Borrower Principal,or any member, general partner, principal or beneficial owner of any of theforegoing, made herein, in any other Loan Document, or in any certificate,report, financial statement or other instrument or document furnished to Lenderat the time of the closing of the Loan or during the term of the Loan shallhave been false or misleading in any material respect when made;

 

(f)            if(i) Borrower, or any managing member or general partner of Borrower, BorrowerPrincipal, or American Express shall commence any case, proceeding or otheraction (A) under any Creditors Rights Laws, seeking to have an order for reliefentered with respect to it, or seeking to adjudicate it a bankrupt orinsolvent, or seeking reorganization, or (B) seeking appointment of a receiver,trustee, custodian, conservator or other similar official for it or for all orany substantial part of its assets, or Borrower, any managing member or generalpartner of Borrower, Borrower Principal, or American Express shall make ageneral assignment for the benefit of its creditors; or (ii) there shall becommenced against Borrower, any managing member or general partner of Borrower,Borrower Principal, or American Express any case, proceeding or other action ofa nature referred to in clause (i) above which (A) results in the entry of anorder for relief or any such adjudication or appointment or (B) remainsundismissed, undischarged or unbonded for a period of sixty (60) days; or (iii)there shall be commenced against Borrower, any managing member or generalpartner of Borrower, Borrower Principal, or American Express any case,proceeding or other action seeking issuance of a warrant of attachment,execution, distraint or similar process against all or any substantial part ofits assets which results in the entry of any order for any such relief whichshall not have been vacated, discharged, or stayed or bonded pending appealwithin sixty (60) days from the entry thereof; or (iv) Borrower, any managingmember or general partner of Borrower, Borrower Principal, or American Expressshall take any action in furtherance of, or indicating its consent to, approvalof, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)above; or (v) Borrower, any managing member or general partner of Borrower,Borrower Principal, or American Express shall generally not, or shall be unableto, or shall admit in writing its inability to, pay its debts as they becomedue;

 

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

 

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(h)           ifthe Property becomes subject to any mechanic’s, materialman’s or other Lienother than a Lien for any Taxes or Other Charges not then due and payable andthe Lien shall remain undischarged of record (by payment, bonding or otherwise)for a period of thirty (30) days;

 

(i)            ifany federal income tax lien is filed against Borrower, any member or generalpartner of Borrower, Borrower Principal, or the Property and same is notdischarged of record (or bonded or insured to Lender’s satisfaction) withinthirty (30) days after same is filed;

 

(j)            ifan uninsured judgment is filed against the Borrower in excess of $20,000 whichis not vacated or discharged (or bonded or insured to Lender’s satisfaction)within 30 days;

 

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

 

(l)            ifBorrower shall permit any event within its control to occur that would causeany REA to terminate without notice or action by any party thereto or wouldentitle any party to terminate any REA and the term thereof by giving notice toBorrower; or any REA shall be surrendered, terminated or canceled for anyreason or under any circumstance whatsoever except as provided for in such REA;or any term of any REA shall be modified or supplemented unless permitted bythe American Express Lease; or Borrower shall fail, within ten (10) BusinessDays after demand by Lender, to exercise its option to renew or extend the termof any REA or shall fail or neglect to pursue diligently all actions necessaryto exercise such renewal rights pursuant to such REA except as provided for insuch REA; or

 

(m)          ifan American Express Lease Default shall occur under the American Express Lease;or

 

(n)           ifBorrower shall continue to be in default under any other term, covenant orcondition of this Agreement or any of the Loan Documents for more than ten (10)days after notice from Lender in the case of any default which can be cured bythe payment of a sum of money or for thirty (30) days after notice from Lenderin the case of any other default, provided that if such default cannotreasonably be cured within such thirty (30) day period and Borrower shall havecommenced to cure such default within such thirty (30) day period andthereafter diligently and expeditiously proceeds to cure the same, such thirty(30) day period shall be extended for so long as it shall require Borrower inthe exercise of due diligence to cure such default, it being agreed that nosuch extension shall be for a period in excess of one hundred twenty (120)days.

 

**Section 11.2.    Remedies**

 

(a)           Upon,the occurrence of an Event of Default (other than an Event of Default describedin Section 11.l(f) above) and at any time thereafter Lender may, in addition toany other rights or remedies available to it pursuant to this Agreement and theother Loan Documents or at law or in equity, take such action, without noticeor demand, that Lender deems advisable to protect and enforce its rightsagainst Borrower and in the Property, including, without limitation, declaringthe Debt to be immediately due and payable, and Lender may enforce or availitself of any or all rights or remedies provided in the Loan Documents againstBorrower and the Property,

 

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including, without limitation, all rights or remedies available at lawor in equity; and upon any Event of Default described in Section 11.l(f) above,the Debt and all other obligations of Borrower hereunder and under the otherLoan Documents shall immediately and automatically become due and payable,without notice or demand, and Borrower hereby expressly waives any such noticeor demand, anything contained herein or in any other Loan Document to thecontrary notwithstanding.

 

(b)           Uponthe occurrence of an Event of Default, all or any one or more of the rights,powers, privileges and other remedies available to Lender against Borrowerunder this Agreement or any of the other Loan Documents executed and deliveredby, or applicable to, Borrower or at law or in equity may be exercised byLender at any time and from time to time, whether or not all or any of the Debtshall be declared due and payable, and whether or not Lender shall havecommenced any foreclosure proceeding or other action for the enforcement of itsrights and remedies under any of the Loan Documents with respect to theProperty. Any such actions taken by Lender shall be cumulative and concurrentand may be pursued independently, singularly, successively, together orotherwise, at such time and in such order as Lender may determine in its solediscretion, to the fullest extent permitted by law, without impairing orotherwise affecting the other rights and remedies of Lender permitted by law,equity or contract or as set forth herein or in the other Loan Documents.

 

**ARTICLE 12ENVIRONMENTAL PROVISIONS**

 

**Section 12.1.    EnvironmentalRepresentations and Warranties**

 

Borrower represents and warrants, except asdisclosed in an Environmental Report of the Property and information thatBorrower knows that: (a) there are no Hazardous Materials or undergroundstorage tanks in, on, or under the Property, except those that are both (i) incompliance with Environmental Laws and with permits issued pursuant thereto (ifsuch permits are required), if any, and (ii) either (A) in the case ofHazardous Materials, in amounts not in excess of that necessary to operate theProperty for the purposes set forth herein or (B) fully disclosed to andapproved by Lender in writing pursuant to an Environmental Report; (b) thereare no past, present or threatened Releases of Hazardous Materials in violationof any Environmental Law or which would require remediation by a GovernmentalAuthority in, on, under or from the Property except as described in theEnvironmental Report; (c) there is no threat of any Release of HazardousMaterials migrating to the Property except as described in the EnvironmentalReport; (d) there is no past or present non-compliance with Environmental Laws,or with permits issued pursuant thereto, in connection with the Property exceptas described in the Environmental Report; (e) Borrower does not know of, andhas not received, any written or oral notice or other communication from anyPerson relating to Hazardous Materials in, on, under or from the Property; (f)the Property is free of Mold; and (g) Borrower has truthfully and fullyprovided to Lender, in writing, any and all information relating toenvironmental conditions in, on, under or from the Property known to Borroweror contained in Borrower’s files and records, including but not limited to anyreports relating to Hazardous Materials in, on, under or migrating to or fromthe Property and/or to the environmental condition of or the presence of Moldat the Property.

 

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**Section 12.2.    EnvironmentalCovenants**

 

Borrower covenants and agrees that so long asBorrower owns, manages and is in possession of the operation of theProperty:   (a) all uses and operationson or of the Property, whether by Borrower or any other Person, shall be incompliance with all Environmental Laws and permits issued pursuant thereto; (b)there shall be no Releases of Hazardous Materials in, on, under or from theProperty; (c) there shall be no Hazardous Materials in, on, or under theProperty, except those that are both, (i) in compliance with all EnvironmentalLaws and with permits issued pursuant thereto, if and to the extent required,and (ii) (A) in amounts not in excess of that necessary to operate the Propertyfor the purposes set forth herein or (B) fully disclosed to and approved byLender in writing or (C) with respect to Mold, not in a condition, location, orof a type which may pose a risk to human health or safety or the environment orwhich may result in damage to or would adversely affect or impair the value ormarketability of the Property; (d) Borrower shall keep the Property free andclear of all Environmental Liens; (e) Borrower shall, at its sole cost andexpense, fully and expeditiously cooperate in all activities pursuant toSection 12.4 below, including but not limited to providing all relevantinformation and making knowledgeable persons available for interviews; (f)Borrower shall, at its sole cost and expense, perform any environmental siteassessment or other investigation of environmental conditions in connectionwith the Property, pursuant to any reasonable written request of Lender, uponLender’s reasonable belief that the Property is not in full compliance with allEnvironmental Laws, and share with Lender the reports and other resultsthereof, and Lender and other Indemnified Parties shall be entitled to rely onsuch reports and other results thereof; (g) Borrower shall keep the Propertyfree of Mold; and (h) Borrower shall, at its sole cost and expense, comply withall reasonable written requests of Lender to (i) reasonably effectuateremediation of any Hazardous Materials in, on, under or from the Property; and(ii) comply with any Environmental Law; (i) Borrower shall not allow any tenantor other user of the Property to violate any Environmental Law; and (j)Borrower shall immediately notify Lender in writing after it has become awareof (A) any presence or Release or threatened Release of Hazardous Materials in,on, under, from or migrating towards the Property; (B) any non-compliance withany Environmental Laws related in any way to the Property; (C) any actual orpotential Environmental Lien against the Property;  (D) any required or proposed remediation of environmental conditionsrelating to the Property; and (E) any written or oral notice or othercommunication of which Borrower becomes aware from any source whatsoever(including but not limited to a Governmental Authority) relating in any way toHazardous Materials.   Any failure ofBorrower to perform its obligations pursuant to this Section 12.2 shallconstitute bad faith waste with respect to the Property.

 

**Section 12.3.    Lender’sRights**

 

Lender and any other Person designated byLender, including but not limited to any representative of a GovernmentalAuthority, and any environmental consultant, and any receiver appointed by anycourt of competent jurisdiction, shall have the right, but not the obligation,to enter upon the Property at all reasonable times to assess any and all aspectsof the environmental condition of the Property and its use, including but notlimited to conducting any environmental assessment or audit (the scope of whichshall be determined in Lender’s sole discretion) and taking samples of soil,groundwater or other water, air, or building materials, and conducting

 

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other invasive testing. Borrower shall cooperate with and provideaccess to Lender and any such person or entity designated by Lender.

 

**Section 12.4.    Operationsand Maintenance Programs**

 

If recommended by the Environmental Report orany other environmental assessment or audit of the Property, Borrower shallestablish and comply with an operations and maintenance program with respect tothe Property, in form and substance reasonably acceptable to Lender, preparedby an environmental consultant reasonably acceptable to Lender, which programshall address any asbestos-containing material or lead based paint that may nowor in the future be detected at or on the Property. Without limiting thegenerality of the preceding sentence, Lender may require (a) periodic noticesor reports to Lender in form, substance and at such intervals as Lender mayspecify, (b) an amendment to such operations and maintenance program to addresschanging circumstances, laws or other matters, (c) at Borrower’s sole expense,supplemental examination of the Property by consultants specified by Lender,(d) access to the Property by Lender, its agents or servicer, to review andassess the environmental condition of the Property and Borrower’s compliancewith any operations and maintenance program, and (e) variation of theoperations and maintenance program in response to the reports provided by anysuch consultants.

 

**Section 12.5.  EnvironmentalDefinitions**

 

**“EnvironmentalLaw”**means anypresent and future federal, stale and local laws, statutes, ordinances, rules,regulations, standards, policies and other government directives orrequirements, as well as common law, including but not limited to theComprehensive Environmental Response, Compensation and Liability Act and theResource Conservation and Recovery Act, that apply to Borrower or the Propertyand relate to Hazardous Materials or protection of human health or theenvironment. **“Environmental Liens”**meansall Liens and other encumbrances imposed pursuant to any Environmental Law,whether due to any act or omission of Borrower or any other Person. **“Environmental Report” **means the written reports resulting from the environmentalsite assessments of the Property delivered to Lender in connection with theLoan. **“Hazardous Materials”**shallmean petroleum and petroleum products and compounds containing them, includinggasoline, diesel fuel and oil; explosives, flammable materials; radioactive materials;polychlorinated biphenyls and compounds containing them; lead and lead-basedpaint; asbestos or asbestos-containing materials in any form that is or couldbecome friable; underground or above-ground storage tanks, whether empty orcontaining any substance; any substance the presence of which on the Propertyis prohibited by any federal, state or local authority; any substance thatrequires special handling; and any other material or substance now or in thefuture defined as a “hazardous substance,” “hazardous material”, “hazardouswaste”, “toxic substance”, “toxic pollutant”, “contaminant”, or “pollutant”within the meaning of any Environmental Law. **“Mold”**shall mean any mold, fungi, bacteria) or microbial matter present ator in the Property. including, without limitation, building materials which isin a condition, location or a type which may pose a risk to human health orsafety or the environment, may result in damage to or would adversely affect orimpair the value or marketability of the Property, **“Release”**of any Hazardous Materials includes but is notlimited to any release, deposit, discharge, emission, leaking, spilling,seeping, migrating, injecting,

 

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pumping, pouring, emptying, escaping, dumping, disposing or**othermovement of Hazardous Materials.

 

**ARTICLE 13SECONDARY MARKET**

 

**Section 13.1.    Transferof Loan**

 

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

 

**Section 13.2.    Delegationof Servicing**

 

At the option of Lender, the Loan may beserviced by a servicer/trustee selected by Lender and Lender may delegate allor any portion of its responsibilities under this Agreement and the other LoanDocuments to such servicer/trustee pursuant to a servicing agreement betweenLender and such servicer/trustee.

 

**Section 13.3.    Disseminationof Information**

 

Lender may forward to each purchaser,transferee, assignee, or servicer of, and each participant, or investor in, theLoan, or any Participations and/or Securities or any of their respectivesuccessors (collectively, the **“Investor”**)****orany Rating Agency rating the Loan, or any Participations and/or Securities,each prospective Investor, and any organization maintaining databases on theunderwriting and performance of commercial mortgage loans, all documents andinformation which Lender now has or may hereafter acquire relating to the Debtand to Borrower, any managing member or general partner thereof, BorrowerPrincipal, and the Property, including financial statements, whether furnishedby Borrower or otherwise, as Lender determines necessary or desirable. Borrowerirrevocably waives any and all rights it may have under applicable Legal Requirementsto prohibit such disclosure, including but not limited to any right of privacy.

 

**Section 13.4.    Cooperation**

 

Borrower and Borrower Principal agree tocooperate with Lender in connection with any sale or transfer of the Loan orany Participation and/or Securities created pursuant to this Article 13,including, without limitation, (a) the delivery of an estoppel certificaterequired in accordance with Section 5.12(a) and such other documents as may bereasonably requested by Lender, (b) the execution of such amendments to theLoan Documents as may be requested by the holder of the Note or the RatingAgencies or otherwise to effect the Securitization including, withoutlimitation, bifurcation of the Loan into two or more components and/or separatenotes; provided, however, that Borrower shall not be required to modify oramend any Loan Document if such modification or amendment would (i) change theinterest rate, the stated maturity or the amortization of principal set forthin the Note, except in connection with a bifurcation of the Loan which mayresult in varying fixed interest rates and amortization schedules, but whichshall

 

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have the same initial weighted average coupon of the original Note, or(ii) in the reasonable judgment of Borrower, modify or amend any other materialeconomic term of the Loan, or (iii) in the reasonable judgment of Borrower,materially increase Borrower’s obligations and liabilities under the LoanDocuments, and (c) make changes to the organizational documents of Borrower andits principals and/or use its best efforts to cause changes to the legalopinions delivered by Borrower in connection with the Loan, provided, that suchchanges shall not result in a material adverse economic effect to Borrower.Borrower shall also furnish and Borrower and Borrower Principal consent toLender furnishing to such Investors or such prospective investors or suchRating Agency any and all information concerning the Property, the American ExpressLease, the financial condition of Borrower or Borrower Principal as may berequested by Lender, any Investor, any prospective Investor or any RatingAgency in connection with any sale or transfer of the Loan or anyParticipations or Securities. Neither Borrower nor Borrower Principal shall beresponsible for any costs incurred by Lender in connection with aSecuritization.

 

**ARTICLE 14INDEMNIFICATIONS**

 

**Section 14.1.    GeneralIndemnification**

 

Borrower shall indemnify, defend and holdharmless the Indemnified Parties from and against any and all Losses imposedupon or incurred by or asserted against any Indemnified Parties and directly orindirectly arising out of or in any way relating to any one or more of thefollowing: (a) any accident, injury to or death of persons or loss of or damageto property occurring in, on or about the Property or any part, thereof or onthe adjoining sidewalks, curbs, adjacent property or adjacent parking areas,streets or ways; (b) any use, nonuse or condition in, on or about the Propertyor any part thereof or on the adjoining sidewalks, curbs, adjacent property oradjacent parking areas, streets or ways; (c) performance of any labor orservices or the furnishing of any materials or other property in respect of theProperty or any part thereof; (d) any failure of the Property to be incompliance with any applicable Legal Requirements; (e) any and all claims anddemands whatsoever which may be asserted against Lender by reason of anyalleged obligations or undertakings on its part to perform or discharge any ofthe terms, covenants, or agreements contained in any Lease; (f) the holding orinvesting of the Reserve Accounts, or (g) the payment of any commission, chargeor brokerage fee to anyone which may be payable in connection with the fundingof the Loan (collectively, the **“Indemnified Liabilities”),**provided, however, that Borrower shall not have any obligation toLender hereunder to the extent that such Indemnified Liabilities arise from thegross negligence, illegal acts, fraud or willful misconduct of Lender.   To the extent that the undertaking toindemnify, defend and hold harmless set forth in the preceding sentence may beunenforceable because it violates any law or public policy, Borrower shall paythe maximum portion that it is permitted to pay and satisfy under applicablelaw to the payment and satisfaction of all Indemnified Liabilities incurred byLender.

 

**Section 14.2.    Mortgageand Intangible Tax Indemnification**

 

Borrower shall, at its sole cost and expense,protect, defend, indemnify, release and hold harmless the Indemnified Partiesfrom and against any and all Losses imposed upon or incurred by or assertedagainst any Indemnified Parties and directly or indirectly arising out of or inany

 

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way relating to any tax on the making and/or recording of the Mortgage,the Note or any of the other Loan Documents, but excluding any income,franchise or other similar taxes.

 

**Section 14.3.    ERISAIndemnification**

 

Borrower shall, at its sole cost and expense,protect, defend, indemnify, release and hold harmless the Indemnified Partiesfrom and against any and all Losses (including, without limitation, reasonableattorneys’ fees and costs incurred in the investigation, defense, andsettlement of Losses incurred in correcting any prohibited transaction or inthe sale of a prohibited loan, and in obtaining any individual prohibitedtransaction exemption under ERISA that may be required, in Lender’s solediscretion) that Lender may incur, directly or indirectly, as a result of adefault under Section 4.9 or Section 5.18 of this Agreement.

 

**Section 14.4.    Survival**

 

The obligations and liabilities of Borrowerand Borrower Principal under this Article 14 shall fully survive indefinitelynotwithstanding any termination, satisfaction, assignment, entry of a judgmentof foreclosure, exercise of any power of sale, or delivery of a deed in lieu offoreclosure of the Mortgage.

 

**ARTICLE 15EXCULPATION**

 

**Section 15.1.    Exculpation**

 

(a)           Exceptas otherwise provided herein or in the other Loan Documents, Lender shall notenforce the liability and obligation of Borrower or Borrower Principal, asapplicable, to perform and observe the obligations contained herein or in theother Loan Documents by any action or proceeding wherein a money judgment shallbe sought against Borrower or Borrower Principal, except that Lender may bringa foreclosure action, action for specific performance or other appropriateaction or proceeding to enable Lender to enforce and realize upon thisAgreement, the Note, the Mortgage and the other Loan Documents, and theinterest in the Property, the Rents (following an Event of Default) and anyother collateral given to Lender created by this Agreement, the Note, theMortgage and the other Loan Documents; provided, however, that any judgment inany such action or proceeding shall be enforceable against Borrower or BorrowerPrincipal, as applicable, only to the extent of Borrower’s or BorrowerPrincipal’s interest in the Property, in the Rents and in any other collateralgiven to Lender. Lender, by accepting this Agreement, the Note, the Mortgageand the other Loan Documents, agrees that it shall not, except as otherwiseprovided in this Section 15.1, sue for, seek or demand any deficiency judgmentagainst Borrower or Borrower Principal in any such action or proceeding, underor by reason of or under or in connection with this Agreement, the Note, theMortgage or the other Loan Documents. The provisions of this Section 15.1 shallnot, however, (i) constitute a waiver, release or impairment of any obligationevidenced or secured by this Agreement, the Note, the Mortgage or the otherLoan Documents; (ii) impair the right of Lender to name Borrower or BorrowerPrincipal as a party defendant in any action or suit for judicial foreclosureand sale under this Agreement and the Mortgage; (iii) affect the validity orenforceability of any indemnity (including, without limitation, those containedin Section 12.6

 

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and Article 14 of this Agreement), environmental indemnity, guaranty,master lease or similar instrument made in connection with this Agreement, theNote, the Mortgage and the other Loan Documents; (iv) impair the right ofLender to obtain the appointment of a receiver; (v) impair the enforcement ofthe assignment of leases provisions contained in the Mortgage, or (vi) impairthe right of Lender to obtain a deficiency judgment or other judgment on theNote against Borrower or Borrower Principal if necessary to obtain anyInsurance Proceeds or Awards to which Lender would otherwise be entitled underthis Agreement; provided however, Lender shall only enforce such judgment tothe extent of the Insurance Proceeds and/or Awards.

 

(b)           Notwithstandingthe provisions of this Section 15.1 to the contrary, Borrower and BorrowerPrincipal shall be personally liable to Lender on a joint and several basis forLosses due to:

 

(i)            fraud orintentional misrepresentation by Borrower, Borrower Principal or any otherAffiliate of Borrower or Borrower Principal in connection with the executionand the delivery of this Agreement, the Note, the Mortgage, any of the otherLoan Documents, or any certificate, report, financial statement or otherinstrument or document furnished to Lender at the time of the closing of theLoan or during the term of the Loan;

 

(ii)           Borrower’smisapplication or misappropriation of Rents received by Borrower after theoccurrence of an Event of Default;

 

(iii)          Borrower’smisapplication or misappropriation of tenant security deposits or Rentscollected in advance;

 

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

 

(v)           Borrower’s failureto pay Taxes, Other Charges (except to the extent that sums sufficient to paysuch amounts have been deposited in escrow with Lender pursuant to the termshereof and there exists no impediment to Lender’s utilization thereof), chargesfor labor or materials or other charges that can create liens on the Propertybeyond any applicable notice and cure periods specified herein;

 

(vi)          Borrower’s failureto return or to reimburse Lender for all Personal Property taken from theProperty by or on behalf of Borrower and not replaced with Personal Property ofthe same utility and of the same or greater value;

 

(vii)         any act of actualwaste or arson by Borrower, any principal, Affiliate, member or general partnerthereof or by Borrower Principal, any principal, Affiliate, member or generalpartner thereof; or

 

(viii)        Borrower’s failurefollowing any Event of Default to deliver to Lender upon demand all Rents andbooks and records relating to the Property.

 

(c)           Notwithstandingthe foregoing, the agreement of Lender not to pursue recourse liability as setforth in subsection (a) above SHALL BECOME NULL AND VOID and shall be of nofurther force and effect and the Debt shall be fully recourse to Borrower andBorrower

 

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Principal on a joint and several basis in the event (i) of a breach byBorrower or Borrower Principal of any of the covenants set forth in Article 6hereof, to the extent that such breach, is (A) material and (B) is not curedwithin fifteen (15) days of the earlier to occur of notice from Lender orBorrower’s knowledge of such breach, (ii) of a breach of any of the covenantsset forth in Article 7 hereof, (iii) the Property or any part thereof shallbecome an asset in a voluntary bankruptcy or insolvency proceeding of Borrower,(iv) Borrower, Borrower Principal or any Affiliate, officer, director, orrepresentative which controls, directly or indirectly, Borrower or BorrowerPrincipal files, or joins in the filing of, an involuntary petition againstBorrower under any Creditors Rights Laws, or solicits or causes to be solicitedpetitioning creditors for any involuntary petition against Borrower from anyPerson; (v) Borrower files an answer consenting to or otherwise acquiescing inor joining in any involuntary petition filed against it, by any other Personunder any Creditors Rights Laws, or solicits or causes to be solicitedpetitioning creditors for any involuntary petition from any Person; or (vi) anyAffiliate, officer, director, or representative which controls Borrowerconsents to or acquiesces in or joins in an application for the appointment ofa custodian, receiver, trustee, or examiner for Borrower or any portion of theProperty.

 

(d)           Nothingherein shall be deemed to be a waiver of any right which Lender may have underSection 506(a), 506(b), 1111(b) or any other provision of the U.S. BankruptcyCode to file a claim for the full amount of the indebtedness secured by theMortgage or to require that all collateral shall continue to secure all of theindebtedness owing to Lender in accordance with this Agreement, the Note, theMortgage or the other Loan Documents.

 

**ARTICLE16NOTICES**

 

**Section 16.1.    Notices**

 

All notices, consents, approvals and requestsrequired or permitted hereunder or under any other Loan Document shall be givenin writing and shall be effective for all purposes if hand delivered or sent by(a) certified or registered United States mail, postage prepaid, return receiptrequested, (b) expedited prepaid overnight, delivery service, either commercialor United States Postal Service, with proof of attempted delivery, or by (c) telecopier(with answer back acknowledged provided an additional notice is given pursuantto subsection (b) above), addressed as follows (or at such other address andPerson as shall be designated from time to time by any party hereto, as thecase may be, in a written notice to the other parties hereto in the mannerprovided for in this Section):

 
| If to Lender: |   | Bank of America, N.A.             |
|---------------|--------|-----------------------------------|
|          |   | Capital Markets Servicing  Group  |
|          |   | 900 West Trade Street,  Suite 650 |
|          |   | NC1-026-06-01                     |
|          |   | Charlotte, North Carolina 28255   |
|          |   | Attn: Servicing Manager           |
|          |   | Telephone No: (866)  531-0957     |

 

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| If to Borrower: |   | Inland Western Plantation  Express, L.L.C.     |
|-----------------|--------|------------------------------------------------|
|            |   | c/o Inland Real Estate  Investment Corporation |
|            |   | 2901 Butterfield Road                          |
|            |   | Oak Brook, Illinois 60523                      |
|            |   | Attention: Roberta Matlin,  Vice President     |
|            |   | Facsimile No.:  630-218-4965                   |
|            |   |                                           |
| With a copy to: |   | The Inland Real Estate  Group, Inc.            |
|            |   | 2901 Butterfield Road                          |
|            |   | Oak Brook, Illinois 60523                      |
|            |   | Attention: General Counsel                     |
|            |   | Facsimile No.:  630-218-4900                   |
|            |   |                                           |
| If to Borrower  |   |                                           |
| Principal:      |   | Inland Western Retail Real  Estate Trust, Inc. |
|            |   | 2901 Butterfield Road                          |
|            |   | Oak Brook, Illinois 60523                      |
|            |   | Roberta Matlin, Vice  President                |
|            |   | Facsimile No.:  630-218-4965                   |
|            |   |                                           |
| With a copy to: |   | The Inland Real Estate Group, Inc.             |
|            |   | 2901 Butterfield Road                          |
|            |   | Oak Brook, Illinois 60523                      |
|            |   | Attention: General Counsel                     |
|            |   | Facsimile No.: 630-218-4900                    |

 

A notice shall be deemed to have been given: in the case of handdelivery, 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 thecase of expedited prepaid delivery and telecopy, upon the first attempteddelivery on a Business Day.

 

**ARTICLE 17FURTHER ASSURANCES**

 

**Section 17.1.    ReplacementDocuments**

 

Upon receipt of an affidavit of an officer ofLender as to the loss, theft, destruction or mutilation of the Note or anyother Loan Document which is not of public record and, in the case of suchmutilation upon surrender and cancellation of such Note or other Loan Document,Borrower will issue in lieu thereof a replacement Note or other Loan Document,dated the date of such lost, stolen, destroyed or mutilated Note or other LoanDocument in the same principal amount thereof and otherwise of like tenor.

 

**Section 17.2.    Recordingof Mortgage, etc.**

 

Borrower forthwith upon the execution anddelivery of the Mortgage and thereafter, from time to time, will cause theMortgage and any of the other Loan Documents creating a lien or securityinterest or evidencing the lien hereof upon the Property and each instrument offurther

 

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assurance to be filed, registered or recorded in such manner and insuch places as may be required by any present or future law in order to publishnotice of and fully to protect and perfect the lien or security interest hereofupon, and the interest of Lender in, the Property. Borrower will pay all taxes,filing, registration or recording fees, and all expenses incident to the preparation,execution, acknowledgment and/or recording of the Note, the Mortgage, the otherLoan Documents, any note, deed of trust or mortgage supplemental hereto, anysecurity instrument with respect to the Property and any instrument of furtherassurance, and any modification or amendment of the foregoing documents, andall federal, state, county and municipal taxes, duties, imposts, assessmentsand charges arising out of or in connection with the execution and delivery ofthe Mortgage, any deed of trust or mortgage supplemental hereto, any securityinstrument with respect to the Property or any instrument of further assurance,and any modification or amendment of the foregoing documents, except whereprohibited by law so to do.

 

**Section 17.3.    FurtherActs, Etc.**

 

Borrower will, at the cost of Borrower(except with respect to costs incurred by Lender, for which Lender shall beresponsible), do, execute, acknowledge and deliver all and every further acts,deeds, conveyances, deeds of trust, mortgages, assignments, securityagreements, control agreements, notices of assignments, transfers andassurances as Lender shall, from time to time, reasonably require, for thebetter assuring, conveying, assigning, transferring, and confirming unto Lenderthe property and rights hereby mortgaged, deeded, granted, bargained, sold,conveyed, confirmed, pledged, assigned, warranted and transferred or intendednow or hereafter so to be, or which Borrower may be or may hereafter becomebound to convey or assign to Lender, or for carrying out the intention orfacilitating the performance of the terms of this Agreement or for filing,registering or recording the Mortgage, or for complying with all LegalRequirements. Borrower, on demand, will execute and deliver, and in the eventit shall fail to so execute and deliver, hereby authorizes Lender to execute inthe name of Borrower or without the signature of Borrower to the extent Lendermay lawfully do so, one or more financing statements and financing statementamendments to evidence more effectively, perfect and maintain the priority ofthe security interest of Lender in the Property. Borrower grants to Lender anirrevocable power of attorney coupled with an interest for the purpose ofexercising and perfecting any and all rights and remedies available to Lenderat law and in equity, including without limitation, such rights and remediesavailable to Lender pursuant to this Section 17.3.

 

**Section 17.4.    Changesin Tax, Debt, Credit and Documentary Stamp Laws**

 

(a)           If any law is enacted or adopted oramended after the date of this Agreement which deducts the Debt from the valueof the Property for the purpose of taxation or which imposes a tax, eitherdirectly or indirectly, on the Debt or Lender’s interest in the Property,Borrower will pay the tax, with interest and penalties thereon, if any. IfLender is advised by counsel chosen by it that the payment of tax by Borrowerwould be unlawful or taxable to Lender or unenforceable or provide the basisfor a defense of usury then Lender shall have the option by written notice ofnot less than one hundred eighty (80) days to declare the Debt immediately dueand payable.

 

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(b)           Borrower will not claim or demand orbe entitled to any credit or credits on account of the Debt for any part of theTaxes or Other Charges assessed against the Property, or any part thereof, andno deduction shall otherwise be made or claimed from the assessed value of theProperty, or any part thereof, for real estate tax purposes by reason of theMortgage or the Debt. If such claim, credit or deduction shall be required bylaw, Lender shall have the option, by written notice of not less than onehundred eighty (80) days, to declare the Debt immediately due and payable.

 

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

 

**Section****17.5.   ****Expenses**

 

Borrower covenants and agrees to pay or, ifBorrower fails to pay, to reimburse, Lender upon receipt of written notice fromLender for all reasonable costs and expenses (including reasonable, actualattorneys’ fees and disbursements and the allocated costs of internal legalservices and all actual disbursements of internal counsel) reasonably incurredby Lender in accordance with this Agreement in connection with (a) thepreparation, negotiation, execution and delivery of this Agreement and theother Loan Documents and the consummation of the transactions contemplatedhereby and thereby and all the costs of furnishing all opinions by counsel forBorrower (including without limitation any opinions requested by Lender as toany legal matters arising under this Agreement or the other Loan Documents withrespect to the Property); (b) Borrower’s ongoing performance of and compliancewith Borrower’s respective agreements and covenants contained in this Agreementand the other Loan Documents on its part to be performed or complied with afterthe Closing Date, including, without limitation, confirming compliance withenvironmental and insurance requirements; (c) following a request by Borrower,Lender’s ongoing performance and compliance with all agreements and conditionscontained in this Agreement and the other Loan Documents on its part to beperformed or complied with after the Closing Date; (d) the negotiation,preparation, execution, delivery and administration of any consents,amendments, waivers or other modifications to this Agreement and the other LoanDocuments and any other documents or matters requested by Lender; (e) securingBorrower’s compliance with any requests made pursuant to the provisions of thisAgreement; (f) the filing and recording fees and expenses, title insurance andreasonable fees and expenses of counsel for providing to Lender all requiredlegal opinions, and other similar expenses incurred in creating and perfectingthe Lien in favor of Lender pursuant to this Agreement and the other LoanDocuments; (g) enforcing or preserving any rights, in response to third partyclaims or the prosecuting or defending of any action or proceeding or otherlitigation, in each case against, under or affecting Borrower, this Agreement,the other Loan Documents, the Property, or any other security given for theLoan; and (h) enforcing any obligations of or collecting any payments due fromBorrower under this Agreement, the other Loan Documents or with respect to theProperty or in connection with any refinancing or restructuring of the creditarrangements provided under this Agreement in the nature of a “work-out” or ofany insolvency or bankruptcy proceedings; provided, however, that Borrowershall not be liable for the payment of any such costs and expenses to theextent the same arise by reason of the gross negligence, illegal acts, fraud orwillful misconduct of Lender.

 

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**ARTICLE 18WAIVERS**

 

**Section 18.1.    RemediesCumulative; Waivers**

 

The rights, powers and remedies of Lenderunder this Agreement shall be cumulative and not exclusive of any other right,power or remedy which Lender may have against Borrower or Borrower Principalpursuant to this Agreement or the other Loan Documents, or existing at law orin equity or otherwise. Lender’s rights, powers and remedies may be pursuedsingularly, concurrently or otherwise, at such time and in such order as Lendermay determine in Lender’s sole discretion. No delay or omission to exercise anyremedy, right or power accruing upon an Event of Default shall impair any suchremedy, right or power or shall be construed as a waiver thereof, but any suchremedy, right or power may be exercised from time to time and as often as maybe deemed expedient. A waiver of one Default or Event of Default with respectto Borrower shall not be construed to be a waiver of any subsequent Default orEvent of Default by Borrower or to impair any remedy, right or power consequentthereon.

 

**Section 18.2.    Modification,Waiver in Writing**

 

No modification, amendment, extension,discharge, termination or waiver of any provision of this Agreement, or of theNote, or of any other Loan Document, nor consent to any departure by Borrowertherefrom, shall in any event be effective unless the same shall be in awriting signed by the party against whom enforcement is sought, and then suchwaiver or consent shall be effective only in the specific instance, and for thepurpose, for which given. Except as otherwise expressly provided herein, nonotice to, or demand on Borrower, shall entitle Borrower to any other or futurenotice or demand in the same, similar or other circumstances.

 

**Section 18.3.    DelayNot a Waiver**

 

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

 

**Section 18.4.    Trialby Jury**

 

**BORROWER,BORROWER PRINCIPAL AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURYOF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND****WAIVES ANY****RIGHT TO TRIAL BY JURY FULLYTO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH**

 

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**REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OROTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BYJURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER, BORROWER PRINCIPAL ANDLENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH****INSTANCE AND****EACH****ISSUE AS****TO WHICH THE RIGHT TO ATRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER, BORROWER PRINCIPAL ANDBORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANYPROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER, BORROWERPRINCIPAL AND LENDER.**

 

**Section 18.5.    Waiverof Notice**

 

Borrower shall not be entitled to any noticesof any nature whatsoever from Lender except with respect to matters for whichthis Agreement or the other Loan Documents specifically and expressly providefor the giving of notice by Lender to Borrower and except with respect tomatters for which Borrower is not, pursuant to applicable Legal Requirements,permitted to waive the giving of notice. Borrower hereby expressly waives theright to receive any notice from Lender with respect to any matter for whichthis Agreement or the other Loan Documents do not specifically and expresslyprovide for the giving of notice by Lender to Borrower.

 

**Section 18.6.    Remediesof Borrower**

 

In the event that a claim or adjudication ismade that Lender or its agents have acted unreasonably or unreasonably delayedacting in any case where by law or under this Agreement or the other LoanDocuments, Lender or such agent, as the case may be, has an obligation to actreasonably or promptly, Borrower agrees that neither Lender nor its agentsshall be liable for any monetary damages, and Borrower’s sole remedies shall belimited to commencing an action seeking injunctive relief or declaratoryjudgment. The parties hereto agree that any action or proceeding to determinewhether Lender has acted reasonably shall be determined by an action seekingdeclaratory judgment. Lender agrees that, in such event, it shall cooperate inexpediting any action seeking injunctive relief or declaratory judgment.

 

**Section 18.7.    Waiverof Marshalling of****Assets**

 

To the fullest extent permitted by law,Borrower, for itself and its successors and assigns, waives all rights to amarshalling of the assets of Borrower, Borrower’s partners and others withinterests in Borrower, and of the Property, and agrees not to assert any rightunder any laws pertaining to the marshalling of assets, the sale in inverseorder of alienation, homestead exemption, the administration of estates ofdecedents, or any other matters whatsoever to defeat, reduce or affect theright of Lender under the Loan Documents to a sale of the Property for thecollection of the Debt without any prior or different resort for collection orof the right of Lender to the payment of the Debt out of the net proceeds ofthe Property in preference to every other claimant whatsoever.

 

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**Section 18.8.    Waiverof Statute of Limitations**

 

Borrower hereby expressly waives andreleases, to the fullest extent permitted by law, the pleading of any statuteof limitations as a defense to payment of the Debt or performance of its OtherObligations.

 

**Section 18.9.    Waiverof Counterclaim**

 

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

 

**ARTICLE 19GOVERNING LAW**

 

**Section 19.1.    Choiceof Law**

 

This Agreement shall be deemed to be acontract entered into pursuant to the laws of the State and shall in allrespects be governed, construed, applied and enforced in accordance with thelaws of the State and applicable laws of the United States of America,provided, however, that with respect to the security interest in each of theReserve Accounts, and the Cash Management Account, the laws of the state whereeach such account is located shall apply.

 

**Section 19.2.    Severability**

 

Wherever possible, each provision of thisAgreement shall be interpreted in such manner as to be effective and valid underapplicable law, but if any provision of this Agreement shall be prohibited byor invalid under applicable law, such provision shall be ineffective to theextent of such prohibition or invalidity, without invalidating the remainder ofsuch provision or the remaining provisions of this Agreement.

 

**Section 19.3.    Preferences**

 

Lender shall have the continuing andexclusive right to apply or reverse and reapply any and all payments byBorrower to any portion of the obligations of Borrower hereunder. To the extentBorrower makes a payment or payments to Lender, which payment or proceeds orany part thereof are subsequently invalidated, declared to be fraudulent orpreferential, set aside or required to be repaid to a trustee, receiver or anyother party under any Creditors Rights Laws, state or federal law, common lawor equitable cause, then, to the extent of such payment or proceeds received,the obligations hereunder or part thereof intended to be satisfied shall berevived and continue in full force and effect, as if such payment or proceedshad not been received by Lender.

 

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**ARTICLE****20****MISCELLANEOUS**

 

**Section 20.1.    Survival**

 

This Agreement and all covenants, agreements,representations and warranties made herein and in the certificates deliveredpursuant hereto shall survive the making by Lender of the Loan and theexecution and delivery to Lender of the Note, and shall continue in full forceand effect so long as all or any of the Debt is outstanding and unpaid unless alonger period is expressly set forth herein or in the other Loan Documents.Whenever in this Agreement any of the parties hereto is referred to, suchreference shall be deemed to include the legal representatives, successors andassigns of such party. All covenants, promises and agreements in thisAgreement, by or on behalf of Borrower, shall inure to the benefit of the legalrepresentatives, successors and assigns of Lender.

 

**Section 20.2.    Lender’sDiscretion**

 

Whenever pursuant to this Agreement, Lenderexercises any right given to it to approve or disapprove, or any arrangement orterm is to be satisfactory to Lender, the decision of Lender to approve ordisapprove or to decide whether arrangements or terms are satisfactory or notsatisfactory shall (except as is otherwise specifically herein provided) be inthe sole discretion of Lender and shall be final and conclusive.

 

**Section 20.3.    Headings**

 

The Article and/or Section headings and theTable of Contents in this Agreement are included herein for convenience ofreference only and shall not constitute a part of this Agreement for any otherpurpose.

 

**Section 20.4.    Costof Enforcement**

 

In the event (a) that the Mortgage isforeclosed in whole or in part, (b) of the bankruptcy, insolvency, rehabilitationor other similar proceeding in respect of Borrower or any of its constituentPersons or an assignment by Borrower or any of its constituent Persons for thebenefit of its creditors, or (c) Lender exercises any of its other remediesunder this Agreement or any of the other Loan Documents, Borrower shall bechargeable with and agrees to pay all costs of collection and defense,including attorneys’ fees and costs, incurred by Lender or Borrower inconnection therewith and in connection with any appellate proceeding orpost-judgment action involved therein, together with all required service oruse taxes.

 

**Section 20.5.    SchedulesIncorporated**

 

The Schedules annexed hereto are herebyincorporated herein as a part of this Agreement with the same effect as if setforth in the body hereof.

 

**Section 20.6.    Offsets,Counterclaims and Defenses**

 

Any assignee of Lender’s interest in and tothis Agreement, the Note and the other Loan Documents shall take the same freeand clear of all offsets, counterclaims or defenses which are unrelated to suchdocuments which Borrower may otherwise have against any assignor of suchdocuments, and no such unrelated counterclaim or defense shall be interposed orasserted by Borrower in any action or proceeding brought by any such assigneeupon such documents and

 

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any such right to interpose or assert any such unrelated offset,counterclaim or defense in any such action or proceeding is hereby expresslywaived by Borrower.

 

**Section 20.7.    NoJoint Venture or Partnership; No Third Party Beneficiaries**

 

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

 

(b)           ThisAgreement and the other Loan Documents arc solely for the benefit of Lender andBorrower and nothing contained in this Agreement or the other Loan Documents shallbe deemed to confer upon anyone other than Lender and Borrower any right toinsist upon or to enforce the performance or observance of any of theobligations contained herein or therein. All conditions to the obligations ofLender to make the Loan hereunder are imposed solely and exclusively for thebenefit of Lender and no other Person shall have standing to require satisfactionof such conditions in accordance with their terms or be entitled to assume thatLender will refuse to make the Loan in the absence of strict compliance withany or all thereof and no other Person shall under any circumstances be deemedto be a beneficiary of such conditions, any or all of which may be freelywaived in whole or in part by Lender if, in Lender’s sole discretion, Lenderdeems it advisable or desirable to do so.

 

(c)           Thegeneral partners, members, principals and (if Borrower is a trust) beneficial ownersof Borrower are experienced in the ownership and operation of propertiessimilar to the Property, and Borrower and Lender are relying solely upon suchexpertise and business plan in connection with the ownership and operation ofthe Property.  Borrower is not relying onLender’s expertise, business acumen or advice in connection with the Property.

 

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

 

(e)           Byaccepting or approving anything required to be observed, performed or fulfilledor to be given to Lender pursuant to this Agreement, the Mortgage, the Note orthe other Loan Documents, including, without limitation, any officer’scertificate, balance sheet, statement of profit and loss or other financialstatement, survey, appraisal, or insurance policy, Lender shall not be deemedto have warranted, consented to, or affirmed the sufficiency, the legality or effectivenessof same, and such acceptance or approval thereof shall not constitute anywarranty or affirmation with respect thereto by Lender.

 

(f)            Borrowerrecognizes and acknowledges that in accepting this Agreement, the Note, theMortgage and the other Loan Documents, Lender is expressly and primarilyrelying on the truth and accuracy of the representations and warranties setforth in Article 4 of this Agreement without any obligation to investigate theProperty and notwithstanding any investigation of the Property by Lender; thatsuch reliance existed on the part of Lender prior to

 

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the date hereof, that the warranties and representations are a materialinducement to Lender in making the Loan; and that Lender would not be willingto make the Loan and accept this Agreement, the Note, the Mortgage and theother Loan Documents in the absence of the warranties and representations asset forth in Article 4 of this Agreement.

 

**Section 20.8.    Publicity**

 

All news releases, publicity or advertisingby Borrower or its Affiliates through any media intended to reach the generalpublic which refers to the Loan, Lender, Banc of America Securities LLC, or anyof their Affiliates shall be subject to the prior written approval of Lender,not to be unreasonably withheld. Lender shall be permitted to make any news,releases, publicity or advertising by Lender or its Affiliates through anymedia intended to reach the general public which refers to the Loan, theProperty, Borrower, Borrower Principal and their respective Affiliates withoutthe approval of Borrower or any such Persons. Borrower also agrees that Lendermay share any information pertaining to the Loan with Banc of AmericaCorporation, including its bank subsidiaries, Bane of America Securities LLCand any other Affiliates of the foregoing, in connection with the sale ortransfer of the Loan or any Participations and/or Securities created.

 

**Section 20.9.    Conflict; Construction of Documents;Reliance**

 

In the event of any conflict between theprovisions of this Agreement and any of the other Loan Documents, theprovisions of this Agreement shall control. The parties hereto acknowledge thatthey were represented by competent counsel in connection with the negotiation,drafting and execution of the Loan Documents and that such Loan Documents shallnot be subject to the principle of construing their meaning against the partywhich drafted same. Borrower acknowledges that, with respect to the Loan,Borrower shall rely solely on its own judgment and advisors in entering intothe Loan without relying in any manner on any statements, representations orrecommendations of Lender or any parent, subsidiary or Affiliate of Lender.Lender shall not be subject to any limitation whatsoever in the exercise of anyrights or remedies available to it under any of the Loan Documents or any otheragreements or instruments which govern the Loan by virtue of the ownership byit or any parent, subsidiary or Affiliate of Lender of any equity interest anyof them may acquire in Borrower, and Borrower hereby irrevocably waives theright to raise any defense or take any action on the basis of the foregoingwith respect to Lender’s exercise of any such rights or remedies. Borroweracknowledges that Lender engages in the business of real estate financings andother real estate transactions and investments which may be viewed as adverseto or competitive with the business of Borrower or its Affiliates.

 

**Section20.10. Entire Agreement**

 

This Agreement and the other Loan Documentscontain the entire agreement of the parties hereto and thereto in respect ofthe transactions contemplated hereby and thereby, and all prior agreementsamong or between such parties, whether oral or written between Borrower andLender arc superseded by the terms of this Agreement and the other LoanDocuments.

 

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

 
|   | BORROWER:                                                                                                                                        |
|--------|--------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                             |
|   |                                                                                                                                             |
|   | INLAND WESTERN PLANTATION  EXPRESS, L.L.C., a Delaware limited liability company                                                                 |
|   |                                                                                                                                             |
|   | By:                                                                                                                                              | Inland Western Retail Real  Estate Trust, Inc., a Maryland corporation, its sole member |
|   |                                                                                                                                             |   |
|   |                                                                                                                                             | By: | /s/ Debra A. Palmer |   |
|   |                                                                                                                                             | Name: | Debra A. Palmer |   |
|   |                                                                                                                                             | Its: | Asst. Sec. |   |
|   |                                                                                                                                             |
|   |                                                                                                                                             |
|   | BORROWER PRINCIPAL:                                                                                                                              |
|   |                                                                                                                                             |
|   | Acknowledged and agreed to  with respect to its obligations set forth in Article 4, Section 12.6, Article  13, Article 15 and Article 18 hereof: |
|   |                                                                                                                                             |
|   |                                                                                                                                             |
|   | INLAND WESTERN RETAIL REAL  ESTATE TRUST INC., a Maryland corporation, its                                                                       |
|   |                                                                                                                                             |
|   | By:                                                                                                                                         | /s/ Debra A. Palmer |   |
|   |                                                                                                                                             | Name: | Debra A. Palmer |   |
|   |                                                                                                                                             | Title: | Asst. Sec. |   |
|        |                                                                                                                                                  |  |  |  |  |  |  |

 

 

[ADDITIONAL SIGNATURE PAGE TO FOLLOW]

 

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|   | LENDER:                                                |
|--------|--------------------------------------------------------|
|   |                                                   |
|   | BANK OF AMERICA, N.A., a  national banking association |
|   |                                                   |
|   | By:                                                    | /s/ Lisa K. McGee |   |
|   |                                                   | Name: | Lisa K. McGee |   |
|   |                                                   | Title: | Vice President |   |
|        |                                                        |  |  |  |  |

 

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EXHIBIT A

 

Borrower Equity OwnershipStructure

 

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EXHIBIT B

 

Tenant Direction Letter

 

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