Exhibit 10.1


 


FIRST AMENDMENT TO CREDIT AGREEMENT AND OTHER LOAN
DOCUMENTS


 


THIS
FIRST AMENDMENT TO CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS (this “Amendment”)
made as of the 9th day of June, 2009, by and among BEHRINGER
HARVARD OPERATING PARTNERSHIP I LP, a Texas limited partnership (“Borrower”),
BEHRINGER HARVARD REIT I, INC., a
Maryland corporation (“REIT”), the Subsidiary Guarantors (as defined in
the Credit Agreement) which are signatories hereto, any Additional Guarantors
(as defined in the Credit Agreement) added as of the date hereof and which are
signatories hereto, including, without limitation, BEHRINGER
HARVARD ELDRIDGE LAND LP, a Texas limited partnership (“Eldridge
Land”), BEHRINGER HARVARD CENTREPORT OFFICE LP, a
Texas limited partnership (“BH Centreport”), BEHRINGER
HARVARD EQUITY DRIVE LP, a Delaware limited partnership (“BH
Equity Drive”), IPC FLORIDA III, LLC, a
Delaware limited liability company (“IPC Florida III”), BEHRINGER HARVARD WAYSIDE, LLC, a Delaware limited liability
company (“BH Wayside”), BEHRINGER HARVARD
BRIARLAKE PLAZA LP, a Delaware limited partnership (“BH Briarlake”;
together with Eldridge Land, BH Centreport, BH Equity Drive, IPC Florida III,
and BH Wayside, collectively, the “Mortgaged Property Owners”; and the
Mortgaged Property Owners, together with REIT, the Subsidiary Guarantors, and
the other Additional Guarantors added as of the date hereof, collectively, the “Guarantors”),
KEYBANK NATIONAL ASSOCIATION, a
national banking association (“KeyBank”),
THE OTHER LENDERS WHICH ARE SIGNATORIES
HERETO (KeyBank and the other lenders which are signatories hereto,
collectively, the “Lenders”), and KEYBANK NATIONAL ASSOCIATION, a national
banking association, as Administrative Agent for the Lenders (the “Agent”).


 


W I T N E S S E T H:


 


WHEREAS, Borrower,
Agent, and the Lenders a party thereto entered into that certain Credit
Agreement dated as of December 11, 2007 (“Original Credit Agreement”);


 


WHEREAS, pursuant to
the Original Credit Agreement, Lenders made a revolving loan to Borrower in the
original principal amount of $300,000,000.00, increasable up to $600,000,000.00
in accordance with the terms of the Original Credit Agreement (the “Revolving
Loan”), a term loan to Borrower in the original principal amount of
$200,000,000 (the “Term Loan”) and a Swing Loan in the original
principal amount of $50,000,000.00 (the “Swing Loan”) (the Revolving Loan, the
Term Loan and the Swing Loan, collectively, the “Loans”), which Loans
are evidenced by, among other things, those certain “Revolving Credit Notes”, “Term
Loan Notes” and “Swing Loan Note” made by Borrower to the order of Lenders and
delivered from time to time under the Original Credit Agreement (such Revolving
Credit Notes, Term Loan Notes and Swing Loan Note, the “Original Notes”);


 


WHEREAS, the
obligations of Borrower under the Loan Documents are secured, in part, by that
certain Unconditional Guaranty of Payment and Performance dated as of December 11,
2007 (as the same may be amended and modified from time to time, the “Guaranty”)
executed by the Guarantors, including, without limitation, the entities that
have become Subsidiary Guarantors since the date thereof pursuant to that
certain Joinder Agreement dated as of April 14, 2008 made by the parties
thereto, that certain Joinder Agreement dated as of August 6, 2008 


 

















 


made
by the parties thereto, that certain Joinder Agreement dated as of December 12,
2008 from BH Briarlake, that certain Joinder Agreement dated as of December 12,
2008 from IPC Florida III Holdings, LLC, a Delaware limited liability company
and that certain joinder agreement contained in Section 6 below
(collectively, the “Joinder Agreements”);


 


WHEREAS, Borrower
desires to, among other things, modify the interest rate on the Loans, pay off
the Term Loan, pay down and decrease the Revolving Credit Commitment, the Swing
Loan Commitment and the Total Commitment, and make certain other changes to the
Original Credit Agreement; and


 


WHEREAS, the Agent, the Lenders, the Borrower, and
the Guarantors desire to enter into this Amendment to reflect the modifications
to the Original Credit Agreement and the delivery by the Mortgaged Property
Owners of, among other documents, mortgages, deeds of trust and assignments of
leases and rents on certain real property to further secure the Loan.


 


NOW, THEREFORE, for and in consideration
of the sum of TEN and NO/100 DOLLARS ($10.00), and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto do hereby covenant and agree as follows:


 


1.             Definitions.  All the terms used herein which are not
otherwise defined herein shall have the meanings set forth in the Credit
Agreement (as hereinafter defined).


 


2.             Modification of the Original
Credit Agreement.  The Original
Credit Agreement is hereby modified by deleting all text (including schedules
and exhibits) and incorporating in lieu thereof the text (including schedules
and exhibits) attached hereto as Exhibit “A”.  Only the text of the Original Credit
Agreement that is changed in Exhibit “A” attached hereto is deemed
amended.  For the avoidance of doubt,
from and after the effectiveness of this Amendment, the Credit Agreement
attached hereto as Exhibit “A” shall constitute the Credit
Agreement (the Original Credit Agreement, as amended herein and in the form
attached hereto as Exhibit “A” is hereinafter referred to as the “Credit
Agreement”).


 


3.             Modified Commitments.


 


(a)           Borrower hereby acknowledges and
agrees that as of the effective date of this Amendment and following satisfaction
of all conditions thereto as provided herein and in the Credit Agreement,
Schedule 1.1 of the Original Credit Agreement shall be modified as indicated on
Exhibit “A” attached hereto. 
The amount of each Lender’s Commitment shall be the amount set forth on
Schedule 1.1 on Exhibit “A”.


 


(b)           In connection with the modification
of the Lenders’ Commitments, KeyBank shall be issued a replacement Revolving
Credit Note in the principal face amount of $28,950,000.00 and a replacement
Swing Loan Note in the principal face amount of $25,000,000.00, Wachovia Bank,
National Association shall be issued a replacement Revolving Credit Note in the
principal face amount of $28,950,000.00, Aareal Capital Corporation shall be
issued a replacement Revolving Credit Note in the principal face amount of
$28,950,000.00, Westdeutsche Immobilienbank AG shall be issued a replacement
Revolving Credit Note in the principal face amount of $19,300,000.00, RBS
Citizens, N.A. d/b/a Charter One shall be issued a replacement Revolving Credit
Note in the principal face amount of $15,440,000.00, Fifth Third 


 


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Bank shall be issued a
replacement Revolving Credit Note in the principal face amount of
$15,440,000.00, National City Bank shall be issued a replacement Revolving
Credit Note in the principal face amount of $13,510,000.00, Allied Irish Banks,
P.L.C. shall be issued a replacement Revolving Credit Note in the principal
face amount of $11,580,000.00, PNC Bank, National Association shall be issued a
replacement Revolving Credit Note in the principal face amount of
$9,650,000.00, Citibank, N.A. shall be issued a replacement Revolving Credit
Note in the principal face amount of $9,650,000.00, Bank of America, N.A. shall
be issued a replacement Revolving Credit Note in the principal face amount of
$7,720,000.00 and Texas Capital Bank, National Association shall be issued a
replacement Revolving Credit Note in the principal face amount of
$3,860,000.00.  Upon acceptance of such
notes by the respective Lenders, each such new or replacement note will be a “Note”
under the Credit Agreement and all of the other Loan Documents, including,
without limitation, the Guaranty.  Upon
execution of this Amendment, the Lenders will promptly return their existing
Revolving Credit Notes, and KeyBank will promptly return its existing Swing
Loan Note, to the maker thereof.


 


4.             Modification of the Guaranty.  The Guarantors, Agent and the Lenders hereby
modify and amend the Guaranty as follows:


 


(a)           By deleting in its entirety Paragraph
(a) appearing on Page 1 of the Guaranty and inserting in lieu thereof
the following:


 


“(a)         the full and prompt payment when due, whether by
acceleration or otherwise, either before or after maturity thereof, of the
Revolving Credit Notes made by Borrower to the order of the Lenders in the
aggregate principal face amount of One Hundred Ninety-Three Million and No/100
Dollars ($193,000,000.00) (the “Revolving Credit Notes”) and the Swing
Loan Note made by Borrower to the order of KeyBank National Association in the
principal face amount of Twenty-five Million and No/100 Dollars
($25,000,000.00) (the “Swing Loan Note”; together with the Revolving
Credit Notes, collectively, the “Notes”), together with interest as
provided in the Notes and together with any replacements, supplements,
renewals, modifications, consolidations, restatements, increases and extensions
thereof; and”


 


(b)           By deleting in its entirety the
second sentence of Paragraph (f) on Page 2 of the Guaranty and
inserting in lieu thereof the following:


 


“Without limiting the
generality of the foregoing, Guarantors acknowledge the terms of Section 2.10
of the Credit Agreement pursuant to which the Total Commitment under the Credit
Agreement may be increased to $300,000,000.00 and agree that this Guaranty
shall extend and be applicable to each new or replacement note delivered by
Borrower in connection with any such increase and all other obligations of
Borrower under the Loan Documents as a result of such increase without notice to
or consent from Guarantors, or any of them. 
Guarantors also acknowledge and agree that this Guaranty shall extend
and be applicable to each new or replacement note delivered by Borrower in
connection 


 


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with that certain First Amendment to Credit
Agreement and Other Loan Documents dated as of June 9, 2009.”


 


(c)           By deleting in its entirety the
second address in Section 13 of the Guaranty and inserting in lieu thereof
the following:


 


“KeyBank National Association


1200 Abernathy Road, N.E., Suite 1550


Atlanta, Georgia 30328


Attn: 
Kevin Murray”


 


5.             Modification of the Indemnity
Agreement.  Agent, Borrower and the
Guarantors hereby modify and amend the Indemnity Agreement Regarding Hazardous
Materials dated as of December 11, 2007 (the “Indemnity Agreement”)
in favor of the Agent and the Lenders by deleting in its entirety the third “WHEREAS”
paragraph appearing on Page 1 thereof and inserting in lieu thereof the
following:


 


“WHEREAS,
Lenders have agreed to provide to Borrower a revolving credit facility in the
amount of up to $193,000,000.00 (increasable up to $300,000,000.00)
(collectively, the “Loan”) pursuant to the Credit Agreement, which Loan
is evidenced by, among other things, those certain Revolving Credit Notes made
by Borrower to the order of KeyBank in the aggregate principal face amount of
$193,000,000.00 (the “Revolving Credit Notes”) and that certain Swing
Loan Note made by Borrower to the order of the Lenders in the principal face
amount of $25,000,000.00 (the “Swing Loan Note”; together with the
Revolving Credit Notes, collectively, the “Notes”, and such Notes,
together with such other Notes as may be issued pursuant to the Credit
Agreement, as the same may be varied, extended, supplemented, consolidated,
amended, replaced, renewed, modified, increased or restated, are hereinafter
referred to collectively as the “Note”); and”


 


6.             Joinder Agreement.  IPC Florida III (the “Joining Party”)
is required, pursuant to §5.5  of
the Credit Agreement, to become an additional Subsidiary Guarantor under the
Guaranty, the Indemnity Agreement and the Contribution Agreement (each as
defined in the Credit Agreement). 
Joining Party expects to realize direct and indirect benefits as a
result of the availability to the Borrower of the credit facilities under the
Credit Agreement.


 


(a)           Joinder.  By this Amendment, Joining Party hereby
becomes, effective as of the Effective Date, a “Subsidiary Guarantor” and a “Guarantor”
under the Credit Agreement, the Guaranty, the Indemnity Agreement, and the
other Loan Documents with respect to all the Obligations of the Borrower now or
hereafter incurred under the Credit Agreement and the other Loan Documents, and
a “Subsidiary Guarantor” under the Contribution Agreement.  Joining Party agrees that Joining Party is
and shall be bound by, and hereby assumes, all representations, warranties,
covenants, terms, conditions, duties and waivers applicable to a “Subsidiary
Guarantor” and a “Guarantor” under the Credit Agreement, the Guaranty, the
Indemnity Agreement, the other Loan Documents and the Contribution Agreement.


 


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(b)           Representations and Warranties of
Joining Party.  Joining Party
represents and warrants to Agent that, as of the Effective Date (as defined
below) of this Amendment and after giving effect to the amendments to the Loan
Documents provided for herein, the representations and warranties contained in
the Credit Agreement and the other Loan Documents applicable to a “Guarantor”
or “Subsidiary Guarantor” are true and correct in all material respects as
applied to Joining Party as a Subsidiary Guarantor and a Guarantor on and as of
the Effective Date as though made on that date. 
As of the Effective Date, all covenants and agreements in the Loan
Documents and the Contribution Agreement of the Subsidiary Guarantors apply to
Joining Party and no Default or Event of Default shall exist or might exist
upon the Effective Date in the event that Joining Party becomes a Subsidiary
Guarantor.


 


(c)           Joint and Several.  Joining Party hereby agrees that, as of the
Effective Date, the Guaranty, the Contribution Agreement and the Indemnity
Agreement heretofore delivered to the Agent and the Lenders, as amended by this
Amendment, shall be a joint and several obligation of Joining Party to the same
extent as if executed and delivered by Joining Party, and upon request by
Agent, will promptly become a party to the Guaranty, the Contribution Agreement
and the Indemnity Agreement to confirm such obligation.


 


7.             Modification of Pledge
Agreements.


 


(a)           Pledge Agreement for Behringer
Harvard Portfolio.  Borrower, Agent
and the Lenders hereby modify and amend that certain Pledge Agreement dated as
of December 11, 2007 given by Borrower to and for the benefit of Agent and
the Lenders, as amended by that certain First Amendment to Pledge Agreement
dated as of August 6, 2008 between Borrower and Agent and by that certain
Second Amendment to Pledge Agreement dated as of December 12, 2008 between
Borrower and Agent (as the same may be varied, extended, supplemented,
consolidated, amended, replaced, renewed, modified or restated), by deleting in
its entirety the third “WHEREAS” paragraph appearing on Page 1 thereof and
inserting in lieu thereof the following:


 


“WHEREAS,
Pledgor, KeyBank, the other lenders which are now or hereafter a party thereto
and Agent have entered into that certain Credit Agreement dated as of December 11,
2007 (as the same may be varied, extended, supplemented, consolidated, amended,
replaced, increased, renewed or modified or restated, the “Credit Agreement”),
pursuant to which the Lenders a party to the Credit Agreement have agreed to
provide a loan to Pledgor in an amount of up to $193,000,000.00, increasable up
to $300,000,000.00 (collectively, the “Loan”), which Loan is evidenced
by those certain Revolving Credit Notes made by Pledgor to the order of the
Lenders in the aggregate principal face amount of $193,000,000.00 (the “Revolving
Credit Notes”) and that certain Swing Loan Note made by Pledgor to the
order of KeyBank in the principal face amount of $25,000,000.00 (the “Swing
Loan Note”; together with the Revolving Credit Notes, collectively, the “Notes”,
and such Notes, together with such other Notes as may be issued pursuant to the
Credit Agreement, as the same may be varied, extended, supplemented,
consolidated, amended, replaced, renewed, modified, increased or restated, are
hereinafter referred to collectively as the “Note”); and”


 


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(b)           Pledge Agreement for IPC Portfolio.  The Guarantors a party thereto, Agent and the
Lenders hereby modify and amend that certain Pledge Agreement dated as of April 14,
2008 given by such Guarantors to and for the benefit of Agent and the Lenders,
as amended and restated pursuant to that certain Amended and Restated Pledge
Agreement dated as of December 12, 2008 between the Guarantors a party
thereto and Agent (as the same may be varied, extended, supplemented,
consolidated, amended, replaced, renewed, modified or restated), by deleting in
its entirety the third “WHEREAS” paragraph appearing on Page 1 thereof and
inserting in lieu thereof the following:


 


“WHEREAS,
Behringer Harvard Limited Partnership I LP (“Borrower”), KeyBank, the
other lenders which are now or hereafter a party thereto and Agent have entered
into that certain Credit Agreement dated as of December 11, 2007 (as the
same may be varied, extended, supplemented, consolidated, amended, replaced,
increased, renewed, modified or restated, the “Credit Agreement”),
pursuant to which the Lenders a party to the Credit Agreement have agreed to
provide a loan to Borrower in an amount of up to $193,000,000.00, increasable
up to $300,000,000.00 (collectively, the “Loan”), which Loan is
evidenced by those certain Revolving Credit Notes made by Borrower to the order
of the Lenders in the aggregate principal face amount of $193,000,000.00 (the “Revolving
Credit Notes”) and that certain Swing Loan Note made by Borrower to the
order of KeyBank in the principal face amount of $25,000,000.00 (the “Swing
Loan Note”; together with the Revolving Credit Notes, collectively, the “Notes”,
and such Notes, together with such other Notes as may be issued pursuant to the
Credit Agreement, as the same may be varied, extended, supplemented,
consolidated, amended, replaced, renewed, modified, increased or restated, are
hereinafter referred to collectively as the “Note”); and”


 


(c)           Pledge Agreement for City Centre
Parent.  Behringer Harvard City
Centre Parent LLC, a Delaware limited liability company (“City Centre Parent”),
Agent and the Lenders hereby modify and amend that certain Pledge Agreement
dated as of August 6, 2008 given by City Centre Parent to and for the
benefit of Agent and the Lenders (as the same may be varied, extended,
supplemented, consolidated, amended, replaced, renewed, modified or restated),
by deleting in its entirety the third “WHEREAS” paragraph appearing on Page 1
thereof and inserting in lieu thereof the following:


 


“WHEREAS,
Behringer Harvard Operating Partnership I LP, a Texas limited partnership (“Borrower”),
KeyBank, the other lenders which are now or hereafter a party thereto and Agent
have entered into that certain Credit Agreement dated as of December 11,
2007 (as the same may be varied, extended, supplemented, consolidated, amended,
replaced, increased, renewed, modified or restated, the “Credit Agreement”),
pursuant to which the Lenders a party to the Credit Agreement have agreed to
provide a loan to Borrower in an amount of up to $193,000,000.00, increasable
up to $300,000,000.00 (collectively, the “Loan”), which Loan is
evidenced by those certain Revolving Credit Notes made by Borrower to the order
of the Lenders in the aggregate principal face amount of $193,000,000.00 (the “Revolving
Credit Notes”) and that certain Swing Loan Note made by Borrower to the
order of KeyBank in the principal face amount of 


 


6

















 


$25,000,000.00 (the “Swing Loan Note”;
together with the Revolving Credit Notes, collectively, the “Notes”, and
such Notes, together with such other Notes as may be issued pursuant to the
Credit Agreement, as the same may be varied, extended, supplemented,
consolidated, amended, replaced, renewed, modified, increased or restated, are
hereinafter referred to collectively as the “Note”); and”


 


8.             Modification of Pledges of
Distributions.


 


(a)           Pledge of Distributions for
Behringer Harvard Portfolio. 
Borrower, Agent and the Lenders hereby modify and amend that certain
Pledge of Distributions dated as of December 11, 2007 given by Borrower to
and for the benefit of Agent and the Lenders, as amended by that certain First
Amendment to Pledge of Distributions dated as of August 6, 2008 between
Borrower and Agent and by that certain Second Amendment to Pledge of
Distributions dated as of December 12, 2008 between Borrower and Agent (as
the same may be varied, extended, supplemented, consolidated, amended,
replaced, renewed, modified or restated), by deleting in its entirety the third
“WHEREAS” paragraph appearing on Page 1 thereof and inserting in lieu
thereof the following:


 


“WHEREAS,
Pledgor, KeyBank, the other lenders which are now or hereafter a party thereto
and Agent have entered into that certain Credit Agreement dated of even date
herewith (as the same may be varied, extended, supplemented, consolidated,
amended, replaced, increased, renewed, modified or restated, the “Credit
Agreement”), pursuant to which the Lenders a party to the Credit Agreement
have agreed to provide a loan to Pledgor in an amount of up to $193,000,000.00,
increasable up to $300,000,000.00 (collectively, the “Loan”), which Loan
is evidenced by those certain Revolving Credit Notes made by Pledgor to the
order of the Lenders in the aggregate principal face amount of $193,000,000.00 (the
“Revolving Credit Notes”) and that certain Swing Loan Note made by
Pledgor to the order of KeyBank in the principal face amount of $25,000,000.00
(the “Swing Loan Note”; together with the Revolving Credit Notes,
collectively, the “Notes”, and such Notes, together with such other
Notes as may be issued pursuant to the Credit Agreement, as the same may be
varied, extended, supplemented, consolidated, amended, replaced, renewed,
modified, increased or restated, are hereinafter referred to collectively as the
“Note”); and”


 


(b)           Pledge of Distributions for IPC
Portfolio.  The Guarantors a party
thereto, Agent and the Lenders hereby modify and amend that certain Pledge of
Distributions dated as of April 14, 2008 given by such Guarantors to and
for the benefit of Agent and the Lenders (as the same may be varied, extended,
supplemented, consolidated, amended, replaced, renewed, modified or restated),
by deleting in its entirety the third “WHEREAS” paragraph appearing on Page 1
thereof and inserting in lieu thereof the following:


 


“WHEREAS,
Behringer Harvard Limited Partnership I LP (“Borrower”), KeyBank, the
other lenders which are now or hereafter a party thereto and Agent have entered
into that certain Credit Agreement dated as of December 11, 2007 (as the
same may be varied, extended, supplemented, consolidated, amended, replaced,
increased, renewed, modified or restated, the “Credit Agreement”), 


 


7

















 


pursuant to which the Lenders a party to the
Credit Agreement have agreed to provide a loan to Borrower in an amount of up
to $193,000,000.00, increasable up to $300,000,000.00 (collectively, the “Loan”),
which Loan is evidenced by those certain Revolving Credit Notes made by
Borrower to the order of the Lenders in the aggregate principal face amount of
$193,000,000.00 (the “Revolving Credit Notes”) and that certain Swing
Loan Note made by Borrower to the order of KeyBank in the principal face amount
of $25,000,000.00 (the “Swing Loan Note”; together with the Revolving
Credit Notes, collectively, the “Notes”, and such Notes, together with
such other Notes as may be issued pursuant to the Credit Agreement, as the same
may be varied, extended, supplemented, consolidated, amended, replaced,
renewed, modified, increased or restated, are hereinafter referred to
collectively as the “Note”); and”


 


(c)           Pledge of Distributions for City
Centre Parent.  City Centre Parent,
Agent and the Lenders hereby modify and amend that certain Pledge of
Distributions dated as of August 6, 2008 given by City Centre Parent to
and for the benefit of Agent and the Lenders (as the same may be varied,
extended, supplemented, consolidated, amended, replaced, renewed, modified or
restated), by deleting in its entirety the third “WHEREAS” paragraph appearing
on Page 1 thereof and inserting in lieu thereof the following:


 


“WHEREAS,
Behringer Harvard Operating Partnership I LP, a Texas limited partnership (“Borrower”),
KeyBank, the other lenders which are now or hereafter a party thereto and Agent
have entered into that certain Credit Agreement dated as of December 11,
2007 (as the same may be varied, extended, supplemented, consolidated, amended,
replaced, increased, renewed, modified or restated, the “Credit Agreement”),
pursuant to which the Lenders a party to the Credit Agreement have agreed to
provide a loan to Borrower in an amount of up to $193,000,000.00, increasable
up to $300,000,000.00 (collectively, the “Loan”), which Loan is
evidenced by those certain Revolving Credit Notes made by Borrower to the order
of the Lenders in the aggregate principal face amount of $193,000,000.00 (the “Revolving
Credit Notes”) and that certain Swing Loan Note made by Borrower to the
order of KeyBank in the principal face amount of $25,000,000.00 (the “Swing
Loan Note”; together with the Revolving Credit Notes, collectively, the “Notes”,
and such Notes, together with such other Notes as may be issued pursuant to the
Credit Agreement, as the same may be varied, extended, supplemented,
consolidated, amended, replaced, renewed, modified, increased or restated, are
hereinafter referred to collectively as the “Note”); and”


 


9.             Satisfaction of Term Loan.  Contemporaneously herewith, and as a
condition to the effectiveness of this Amendment, Borrower is paying to Agent
for the accounts of the Term Loan Lenders (as defined in the Original Credit
Agreement) the principal balance and all accrued interest on the Term Loans
issued under the Original Credit Agreement, which Agent shall pay to the Term
Loan Lenders.


 


10.           References to Credit Agreement.  All references in the Loan Documents to the
Credit Agreement or any other Loan Document, shall be deemed a reference to the
Credit Agreement or such other Loan Document, as modified and amended herein.


 


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11.           Acknowledgment of Borrower and
each Guarantor.  Borrower and each
Guarantor hereby acknowledge, represent and agree that the Loan Documents, as
modified and amended herein, remain in full force and effect and constitute the
valid and legally binding obligation of Borrower and each Guarantor, as
applicable, enforceable against Borrower and each Guarantor in accordance with
their respective terms, and that the execution and delivery of this Amendment
and any other documents in connection therewith do not constitute, and shall
not be deemed to constitute, a release, waiver or satisfaction of Borrower’s or
any Guarantor’s obligations under the Loan Documents.


 


12.           Representations and Warranties.  Borrower and each Guarantor represent and
warrant to Agent and the Lenders as follows:


 


(a)           Authorization.  The execution, delivery and performance of
this Amendment and the transactions contemplated hereby (i) are within the
authority of Borrower and each Guarantor, (ii) have been duly authorized
by all necessary proceedings on the part of the Borrower and each Guarantor, (iii) do
not and will not conflict with or result in any breach or contravention of any
provision of law, statute, rule or regulation to which either Borrower or
any Guarantor is subject or any judgment, order, writ, injunction, license or
permit applicable to either Borrower or any Guarantor, (iv) do not and
will not conflict with or constitute a default (whether with the passage of
time or the giving of notice, or both) under any provision of the partnership
agreement or certificate, certificate of formation, operating agreement,
articles of incorporation or other charter documents or bylaws of, or any
mortgage, indenture, agreement, contract or other instrument binding upon,
Borrower, any Guarantor or any of their respective properties or to which
Borrower or any Guarantor is subject, and (v) do not and will not result
in or require the imposition of any lien or other encumbrance on any of the
properties, assets or rights of Borrower or any Guarantor, other than the liens
and encumbrances created by the Loan Documents.


 


(b)           Enforceability.  The execution and delivery of this Amendment
are valid and legally binding obligations of Borrower and each Guarantor
enforceable in accordance with the respective terms and provisions hereof,
except as enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement of
creditors’ rights and the effect of general principles of equity.


 


(c)           Approvals.  The execution, delivery and performance of
this Amendment and the transactions contemplated hereby do not require the
approval or consent of any Person or the authorization, consent, approval of or
any license or permit issued by, or any filing or registration with, or the
giving of any notice to, any court, department, board, commission or other
governmental agency or authority other than those already obtained.


 


(d)           Reaffirmation.  Borrower and each Guarantor reaffirm and restate
as of the date hereof each and every representation and warranty made by
Borrower, each Guarantor and their respective Subsidiaries in the Loan
Documents including, without limitation, the Credit Agreement attached hereto
as Exhibit “A” or otherwise made by or on behalf of such Persons in
connection therewith (which for all purposes shall include this Amendment as a
Loan Document) except for representations or warranties that expressly relate
to an earlier date and, in the case of representations or warranties contained
in Loan Documents executed prior to the Effective Date, 


 


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except to the extent of
changes resulting from transactions permitted in the Loan Documents and except
as previously disclosed in writing by Borrower to Agent and approved by Agent
in writing.


 


13.           No Default.  By execution hereof, the Borrower and each
Guarantor certify that Borrower and each Guarantor are and will be in
compliance with all covenants under the Loan Documents both before and after
the execution and delivery of this Amendment, and that no Default or Event of
Default has occurred and is continuing under the Loan Documents, including,
without limitation, the Original Credit Agreement and the Credit Agreement
attached hereto as Exhibit “A”.


 


14.           Waiver of Claims. Borrower and
each Guarantor acknowledge, represent and agree that none of such Persons has
any defenses, setoffs, claims, counterclaims or causes of action of any kind or
nature whatsoever with respect to the Loan Documents, the administration or
funding of the Loan or with respect to any acts or omissions of Agent or any
Lender, or any past or present officers, agents or employees of Agent or any
Lender, and each of such Persons does hereby expressly waive, release and
relinquish any and all such defenses, setoffs, claims, counterclaims and causes
of action, if any.


 


15.           Ratification.  Except as hereinabove set forth, all terms,
covenants and provisions of the Original Credit Agreement and the other Loan
Documents remain unaltered and in full force and effect, and the parties hereto
do hereby expressly ratify and confirm the Loan Documents as modified and
amended herein.  The Guarantors hereby
consent to the terms of this Amendment. 
Nothing in this Amendment or any other document delivered in connection
herewith shall be deemed or construed to constitute, and there has not
otherwise occurred, a novation, cancellation, satisfaction, release,
extinguishment or substitution of the indebtedness evidenced by the Notes or
the other obligations of Borrower or any Guarantor under the Loan Documents.


 


16.           Effective Date.  This Amendment shall be deemed effective and
in full force and effect as of the date hereof (upon the satisfaction or waiver
of all conditions precedent to such effectiveness, the “Effective Date”)
upon the payment of all fees pursuant to that certain Fee Letter dated September 19,
2007 between Borrower and KeyBank and that certain Fee Letter dated February 13,
2009 between Borrower and KeyBank, payment of all other interest and fees
accrued under the Original Credit Agreement and all reasonable fees and
expenses of Agent in connection with this Amendment, execution and delivery of
this Amendment, any amendments to existing Loan Documents, and such other opinions,
title policies and other documents as set forth in § 10 of the Credit
Agreement and as Agent reasonably requires to be delivered by Borrower, any
Guarantor, Agent and the Required Lenders. 
The Lenders hereby authorize Agent to enter into such other agreements
and documents as it may deem necessary in connection with this Amendment.


 


17.           Further Assurances.  Borrower and each Guarantor agree to execute
and deliver such other instruments and documents and take such other action, as
the Agent may reasonably request, in connection with the transactions
contemplated by this Amendment.


 


10
















 


18.           Amendment as Loan Document.  This Amendment shall constitute a Loan
Document.


 


19.           Counterparts.  This Amendment may be executed in any number
of counterparts which shall together constitute but one and the same agreement.


 


20.           MISCELLANEOUS.  THIS AMENDMENT SHALL, PURSUANT TO NEW YORK
GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.  This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective permitted
successors, successors-in-title and assigns as provided in the Credit
Agreement.


 


[Remainder
of Page Intentionally Left Blank]


 


11

















 


IN WITNESS
WHEREOF, the parties hereto have set their hands and affixed their seals as of
the day and year first above written.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  BEHRINGER
  HARVARD OPERATING

  PARTNERSHIP
  I LP, a Texas limited partnership

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  BHR, Inc., a Delaware corporation, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
   

  	
  (SEAL)

  



 


[Signatures
continued on next page]


 


12

















 


	
   

  	
  REIT:

  
	
   

  	
   

  
	
   

  	
  BEHRINGER
  HARVARD REIT I, INC., a Maryland corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


 


	
   

  	
  SUBSIDIARY
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  BEHRINGER
  HARVARD WAYSIDE, LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


 


	
   

  	
  BEHRINGER
  HARVARD CENTREPORT OFFICE LP, a Texas limited
  partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


 


	
   

  	
  BEHRINGER
  HARVARD TEXAS STREET LP, a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


[Signatures continued on
next page]


 


13

















 


	
   

  	
  BEHRINGER
  HARVARD ELDRIDGE LAND LP, a Texas limited
  partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


 


	
   

  	
  WOODREST
  ROAD ASSOCIATES II, LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


 


	
   

  	
  BEHRINGER
  HARVARD EQUITY DRIVE LP, a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


 


	
   

  	
  BEHRINGER
  HARVARD CITY CENTRE OWNER LLC, a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


[Signatures continued on
next page]


 


14

















 


	
   

  	
  BEHRINGER
  HARVARD BRIARLAKE PLAZA LP, a Delaware limited
  partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


 


	
   

  	
  IPC
  MARYLAND I HOLDINGS, LLC, a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


 


	
   

  	
  IPC
  REALTY II, LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


 


	
   

  	
  IPC
  REALTY, LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


[Signatures continued on
next page]


 


15

















 


	
   

  	
  IPC
  COMMERCIAL PROPERTIES, LLC, a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


 


	
   

  	
  IPC
  LP/WP HOLDINGS, LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


 


	
   

  	
  IPC
  FIFTH THIRD HOLDINGS, LLC, a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


 


	
   

  	
  IPC
  METROCENTER HOLDINGS, LLC, a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


 


	
   

  	
  IPC
  CRESCENT CENTER HOLDINGS, LLC, a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


[Signatures continued on
next page]


 


16

















 


	
   

  	
  IPC
  NOI HOLDINGS, INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


 


	
   

  	
  IPC
  (US) REALTY HOLDINGS III, INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


 


	
   

  	
  IPC
  FLORIDA III HOLDINGS, LLC, a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


 


	
   

  	
  IPC
  FLORIDA III, LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


 


	
   

  	
  BEHRINGER
  HARVARD CITY CENTRE PARENT LLC, a Delaware limited
  liability company, as a pledgor only and not as a guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
  Corporate Development and Legal

  
	
   

  	
   

  	
  (SEAL)

  



 


[Signatures continued on next page]


 


17

















 


	
   

  	
  AGENT AND LENDERS:

  
	
   

  	
   

  
	
   

  	
  KEYBANK NATIONAL ASSOCIATION, individually and as Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin P. Murray

  
	
   

  	
  Name:

  	
  Kevin P. Murray

  
	
   

  	
  Title:

  	
  SVP

  



 


 


	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Matthew Ricketts

  
	
   

  	
  Name:

  	
  Matthew Ricketts

  
	
   

  	
  Title:

  	
  Director

  



 


 


	
   

  	
  AAREAL CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joseph P. Kelly

  	
  /s/ Terrence P. Sweeney

  
	
   

  	
  Name:

  	
  Joseph P. Kelly

  	
  Terrence P. Sweeney

  
	
   

  	
  Title:

  	
  Executive Director

  	
  General
  Counsel

  



 


 


	
   

  	
  WESTDEUTSCHE IMMOBILIENBANK
  AG

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nanja Junge

  
	
   

  	
  Name:

  	
  Nanja Junge

  
	
   

  	
  Title:

  	
  Senior
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sascha Matheis

  
	
   

  	
  Name:

  	
  Sascha Matheis

  
	
   

  	
  Title:

  	
  Executive
  Director

  



 


	
   

  	
  RBS CITIZENS, N.A. d/b/a CHARTER ONE

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ebin L. Mahon

  
	
   

  	
  Name:

  	
  Ebin L. Mahon

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  



 


[Signatures continued on next page]


 


Signature
Pages to First Amendment to Credit Agreement and Other Loan Documents


 
















 


	
   

  	
  FIFTH
  THIRD BANK, a Michigan banking corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tammy Leachman

  
	
   

  	
  Name:

  	
  Tammy Leachman

  
	
   

  	
  Title:

  	
  VP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NATIONAL
  CITY BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sean Apicella

  
	
   

  	
  Name:

  	
  Sean Apicella

  
	
   

  	
  Title:

  	
  Assistant Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ALLIED
  IRISH BANKS, P.L.C.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Douglas S. Marron

  
	
   

  	
  Name:

  	
  Douglas S. Marron

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian Deegan

  
	
   

  	
  Name:

  	
  Brian Deegan

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PNC
  BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James A. Harmann

  
	
   

  	
  Name:

  	
  James A. Harmann

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CITIBANK,
  N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ashanti Mitchell

  
	
   

  	
  Name:

  	
  Ashanti Mitchell

  
	
   

  	
  Title:

  	
  Vice President

  



 


[Signatures
continued on next page]


 


Signature Pages to First Amendment to Credit Agreement and Other Loan
Documents


 

















 


	
   

  	
  BANK
  OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brett Bell, SVP

  
	
   

  	
  Name:

  	
  Brett Bell

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TEXAS
  CAPITAL BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey A. Moten

  
	
   

  	
  Name:

  	
  Jeffrey A. Moten

  
	
   

  	
  Title:

  	
  Executive Vice President

  



 


Signature
Pages to First Amendment to Credit Agreement and Other Loan Documents


 

















 


EXHIBIT “A”


 


MODIFIED CREDIT AGREEMENT


 


21
















 


[CONFORMED DRAFT]


 


CREDIT AGREEMENT


 


DATED AS OF DECEMBER 11, 2007


 


by and among


 


BEHRINGER HARVARD OPERATING PARTNERSHIP I LP,


 


AS BORROWER,


 


KEYBANK NATIONAL ASSOCIATION,


 


THE OTHER LENDERS WHICH ARE PARTIES TO THIS
AGREEMENT


 


AND


 


OTHER LENDERS THAT MAY BECOME


 


PARTIES TO THIS AGREEMENT,


 


KEYBANK NATIONAL ASSOCIATION,


 


AS AGENT,


 


KEYBANC CAPITAL MARKETS,

AS SOLE BOOK MANAGER,


 


KEYBANK CAPITAL MARKETS


 


AND


 


WACHOVIA BANK, NATIONAL ASSOCIATION,


 


AS CO-LEAD ARRANGERS,


 


AND


 


AAREAL BANK AG CAPITAL CORPORATION


 


AND


 


WESTDEUTSCHE IMMOBILIENBANK AG,


 


AS CO-DOCUMENTATION AGENTS


 

















 


EXHIBITS
AND
SCHEDULES


 


Exhibit A                FORM OF REVOLVING CREDIT
NOTE


 


Exhibit B                FORM OF SWING LOAN NOTE


 


Exhibit C                FORM OF TERM LOAN NOTE
ASSIGNMENT AND ACCEPTANCE AGREEMENT


 


Exhibit D                FORM OF JOINDER AGREEMENT


 


Exhibit E                 FORM OF
MORTGAGE


 


Exhibit F                 FORM OF
DEED OF TRUST


 


Exhibit G                FORM OF
REQUEST FOR REVOLVING CREDIT LOAN


 


Exhibit FH              FORM OF
LETTER OF CREDIT REQUEST


 


Exhibit GI               FORM OF BORROWING BASE
CERTIFICATE


 


Exhibit J                 FORM OF COMPLIANCE CERTIFICATE


 


Exhibit HK             FORM OF ASSIGNMENT AND
ACCEPTANCE AGREEMENT


 


Exhibit IL               FORM OF LETTER OF CREDIT
APPLICATION


 


Exhibit M               FORM OF ASSIGNMENT AND
SUBORDINATION OF MANAGEMENT AGREEMENT


 


Schedule 1.1          LENDERS AND COMMITMENTS


 


Schedule 1.2          SUBSIDIARY GUARANTORS


 

















 


Schedule 2.9                          OUTSTANDING
LETTERS OF CREDIT


 


Schedule 4.3                          ACCOUNTS


 


Schedule 5.3                          ELIGIBLE REAL ESTATE
QUALIFICATION DOCUMENTS


 


Schedule 6.3                          LIST
OF ALL ENCUMBRANCES ON ASSETS


 


Schedule 6.5                          NO
MATERIAL CHANGES


 


Schedule 6.6                          TRADEMARKS,
TRADENAMES


 


Schedule 6.7                          PENDING
LITIGATION


 


Schedule 6.10                        UNPAID
TAXES


 


Schedule 6.146.15 CERTAIN TRANSACTIONS


 


Schedule 6.20(c)                   RELEASES


 


Schedule 6.20(d)                   HAZARDOUS
SUBSTANCES


 


Schedule 6.21(a)                   SUBSIDIARIES
OF REIT


 


Schedule 6.206.21(b)            UNCONSOLIDATED
AFFILIATES REIT AND ITS SUBSIDIARIES


 


Schedule 6.21                        PROPERTY
6.22        LEASES


 


Schedule 6.23 PROPERTY


 


Schedule 6.25                        MATERIAL LOAN AGREEMENTS


 


Schedule 9                             EXAMPLE OF DEBT
SERVICE COVERAGE AMOUNT CALCULATION


 


ii

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  §1.

  	
  DEFINITIONS AND RULES
  OF INTERPRETATION

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §1.1

  	
  Definitions

  	
  1

  
	
   

  	
  §1.2

  	
  Rules of
  Interpretation

  	
  2535

  
	
   

  	
   

  	
   

  	
   

  
	
  §2.

  	
  THE CREDIT FACILITY

  	
  2636

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §2.1

  	
  Revolving
  Credit Loans

  	
  2636

  
	
   

  	
  §2.2

  	
  Commitment
  to Lend Term Loan  27§2.3 Facility Unused Fee

  	
  2738

  
	
   

  	
  §2.42.3

  	
  Reduction
  and Termination of the Revolving Credit Commitments

  	
  2738

  
	
   

  	
  §2.52.4

  	
  Swing
  Loan Commitment

  	
  2838

  
	
   

  	
  §2.62.5

  	
  Interest
  on Loans

  	
  3041

  
	
   

  	
  §2.72.6

  	
  Requests
  for Revolving Credit Loans

  	
  3142

  
	
   

  	
  §2.82.7

  	
  Funds
  for Loans

  	
  3142

  
	
   

  	
  §2.92.8

  	
  Use
  of Proceeds

  	
  3243

  
	
   

  	
  §2.102.9

  	
  Letters
  of Credit

  	
  3243

  
	
   

  	
  §2.112.10

  	
  Increase
  in Total Revolving Credit Commitment

  	
  3646

  
	
   

  	
  §2.122.11

  	
  Extension
  of Revolving Credit Maturity Date

  	
  3849

  
	
   

  	
  §2.13

  	
  Extension
  of Term Loan Maturity Date

  	
  3950

  
	
   

  	
   

  	
   

  	
   

  
	
  §3.

  	
  REPAYMENT
  OF THE LOANS

  	
  4051

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §3.1

  	
  Stated
  Maturity

  	
  4051

  
	
   

  	
  §3.2

  	
  Mandatory
  Prepayments

  	
  4051

  
	
   

  	
  §3.3

  	
  Optional
  Prepayments

  	
  4051

  
	
   

  	
  §3.4

  	
  Partial
  Prepayments

  	
  4152

  
	
   

  	
  §3.5

  	
  Effect
  of Prepayments

  	
  4152

  
	
   

  	
   

  	
   

  	
   

  
	
  §4.

  	
  CERTAIN
  GENERAL PROVISIONS

  	
  4152

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §4.1

  	
  Conversion
  Options

  	
  4152

  
	
   

  	
  §4.2

  	
  Fees

  	
  4253

  
	
   

  	
  §4.3

  	
  Funds
  for Payments

  	
  4253

  
	
   

  	
  §4.4

  	
  Computations

  	
  4455

  
	
   

  	
  §4.5

  	
  Suspension
  of Revolving Credit LIBOR Rate Loans

  	
  4455

  
	
   

  	
  §4.6

  	
  Illegality

  	
  4456

  
	
   

  	
  §4.7

  	
  Additional
  Interest

  	
  4556

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §4.8

  	
  Additional
  Costs, Etc

  	
  4556

  
	
   

  	
  §4.9

  	
  Capital
  Adequacy

  	
  4657

  
	
   

  	
  §4.10

  	
  Breakage
  Costs

  	
  4758

  
	
   

  	
  §4.11

  	
  Default
  Interest; Late Charge

  	
  4758

  
	
   

  	
  §4.12

  	
  Certificate

  	
  4758

  
	
   

  	
  §4.13

  	
  Limitation
  on Interest

  	
  4758

  
	
   

  	
  §4.14

  	
  Certain
  Provisions Relating to Increased Costs and Non-Funding Lenders 

  	
  4859

  
	
   

  	
   

  	
   

  	
   

  
	
  §5.

  	
  COLLATERAL
  SECURITY; GUARANTORS

  	
  4960

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §5.1

  	
  Collateral

  	
  4960

  
	
   

  	
  §5.2

  	
  Additional
  Guarantors

  	
  49

  
	
   

  	
  §5.3

  	
  Additional
  Collateral

  	
  49

  
	
   

  	
  §5.2

  	
  Appraisals;
  Adjusted Value

  	
  60

  
	
   

  	
  §5.3

  	
  Replacement
  or Addition of Mortgaged Properties

  	
  61

  
	
   

  	
  §5.4

  	
  Release
  of Mortgaged Property

  	
  62

  
	
   

  	
  §5.5

  	
  Additional
  Guarantors

  	
  63

  
	
   

  	
  §5.6

  	
  Intentionally
  Omitted

  	
  63

  
	
   

  	
  §5.7

  	
  Release
  of Collateral (other than Mortgaged Properties); Release of Guarantor

  	
  5064

  
	
   

  	
   

  	
   

  	
   

  
	
  §6.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  5165

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §6.1

  	
  Corporate
  Authority, Etc

  	
  5165

  
	
   

  	
  §6.2

  	
  Governmental
  Approvals

  	
  5266

  
	
   

  	
  §6.3

  	
  Title
  to Properties

  	
  5266

  
	
   

  	
  §6.4

  	
  Financial
  Statements

  	
  5267

  
	
   

  	
  §6.5

  	
  No
  Material Changes

  	
  5267

  
	
   

  	
  §6.6

  	
  Franchises,
  Patents, Copyrights, Etc

  	
  5367

  
	
   

  	
  §6.7

  	
  Litigation

  	
  5368

  
	
   

  	
  §6.8

  	
  No
  Material Adverse Contracts, Etc

  	
  5368

  
	
   

  	
  §6.9

  	
  Compliance
  with Other Instruments, Laws, Etc

  	
  5368

  
	
   

  	
  §6.10

  	
  Tax
  Status

  	
  5368

  
	
   

  	
  §6.11

  	
  No
  Event of Default

  	
  5468

  
	
   

  	
  §6.12

  	
  Investment
  Company Act

  	
  5468

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §6.13

  	
  Intentionally
  Omitted

  	
  69

  
	
   

  	
  §6.14

  	
  Setoff,
  Etc

  	
  5469

  
	
   

  	
  §6.146.15

  	
  Certain
  Transactions

  	
  5469

  
	
   

  	
  §6.156.16

  	
  Employee
  Benefit Plans

  	
  5469

  
	
   

  	
  §6.166.17

  	
  Disclosure

  	
  5569

  
	
   

  	
  §6.176.18

  	
  Place
  of Business

  	
  5570

  
	
   

  	
  §6.186.19

  	
  Regulations
  T, U and X

  	
  5570

  
	
   

  	
  §6.196.20

  	
  Environmental
  Compliance

  	
  5570

  
	
   

  	
  §6.206.21

  	
  Subsidiaries;
  Organizational Structure

  	
  5772

  
	
   

  	
  §6.216.22    Leases

  	
  72

  
	
   

  	
  §6.23

  	
  Property

  	
  5773

  
	
   

  	
  §6.226.24

  	
  Brokers

  	
  5874

  
	
   

  	
  §6.236.25

  	
  Other
  Debt

  	
  5874

  
	
   

  	
  §6.246.26

  	
  Solvency

  	
  5874

  
	
   

  	
  §6.256.27

  	
  No
  Bankruptcy Filing

  	
  5874

  
	
   

  	
  §6.266.28

  	
  No
  Fraudulent Intent

  	
  5874

  
	
   

  	
  §6.276.29

  	
  Transaction
  in Best Interests of Borrower and Guarantors; Consideration

  	
  5975

  
	
   

  	
  §6.286.30

  	
  Contribution
  Agreement

  	
  5975

  
	
   

  	
  §6.29

  	
  OFAC

  	
  59

  
	
   

  	
  §6.31           Representations
  and Warranties of Guarantors

  	
  75

  
	
   

  	
  §6.32           OFAC

  	
  75

  
	
   

  	
  §6.33           Three
  Eldridge Place

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  §7.

  	
  AFFIRMATIVE
  COVENANTS

  	
  5976

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §7.1

  	
  Punctual
  Payment

  	
  5976

  
	
   

  	
  §7.2

  	
  Maintenance
  of Office

  	
  5976

  
	
   

  	
  §7.3

  	
  Records
  and Accounts

  	
  6076

  
	
   

  	
  §7.4

  	
  Financial
  Statements, Certificates and Information

  	
  6076

  
	
   

  	
  §7.5

  	
  Notices

  	
  6379

  
	
   

  	
  §7.6

  	
  Existence;
  Maintenance of Properties

  	
  6481

  
	
   

  	
  §7.7

  	
  Insurance64;
  Condemnation

  	
  81

  
	
   

  	
  §7.8

  	
  Taxes;
  Liens

  	
  6487

  



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §7.9

  	
  Inspection
  of Properties and Books

  	
  6587

  
	
   

  	
  §7.10

  	
  Compliance
  with Laws, Contracts, Licenses, and Permits

  	
  6587

  
	
   

  	
  §7.11

  	
  Further
  Assurances

  	
  6688

  
	
   

  	
  §7.12

  	
  Management

  	
  88

  
	
   

  	
  §7.13           Leases
  of the Property

  	
  88

  
	
   

  	
  §7.14

  	
  Business
  Operations

  	
  6689

  
	
   

  	
  §7.137.15

  	
  Subordination
  of Advisory Fees

  	
   6689

  
	
   

  	
  §7.147.16    Registered
  Servicemark

  	
  90

  
	
   

  	
  §7.17

  	
  Ownership
  of Real Estate

  	
  6790

  
	
   

  	
  §7.157.18

  	
  Distributions
  of Income to Borrower

  	
  6790

  
	
   

  	
  §7.167.19

  	
  Plan
  Assets 

  	
  6791

  
	
   

  	
  §7.20           Construction
  of Improvements on Three Eldridge Place

  	
  91

  
	
   

  	
  §7.21           Inspection
  by Agent or any Lender of Construction at Three Eldridge Place

  	
  91

  
	
   

  	
  §7.22           Mechanics’
  Liens and Contest Thereof

  	
  91

  
	
   

  	
  §7.23           Settlement
  of Mechanics’ Lien Claims

  	
  91

  
	
   

  	
  §7.24           Eldridge
  Reserve

  	
  92

  
	
   

  	
   

  	
   

  	
   

  
	
  §8.

  	
  NEGATIVE
  COVENANTS

  	
  6792

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §8.1

  	
  Restrictions
  on Indebtedness

  	
  6792

  
	
   

  	
  §8.2

  	
  Restrictions
  on Liens, Etc

  	
  6894

  
	
   

  	
  §8.3

  	
  Restrictions
  on Investments

  	
  7095

  
	
   

  	
  §8.4

  	
  Merger,
  Consolidation

  	
  7197

  
	
   

  	
  §8.5

  	
  Sale
  and Leaseback

  	
  7298

  
	
   

  	
  §8.6

  	
  Compliance
  with Environmental Laws

  	
  7298

  
	
   

  	
  §8.7

  	
  Distributions

  	
  74100

  
	
   

  	
  §8.8

  	
  Asset
  Sales

  	
  74100

  
	
   

  	
  §8.9

  	
  Restriction
  on Prepayment of Indebtedness

  	
  74100

  
	
   

  	
  §8.10

  	
  Zoning
  and Contract Changes and Compliance

  	
  101

  
	
   

  	
  §8.11           Derivatives
  Contracts

  	
  75101

  
	
   

  	
  §8.118.12

  	
  Transactions
  with Affiliates

  	
  75101

  
	
   

  	
  §8.128.13

  	
  Equity
  Pledges

  	
  75101

  



 


iv

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §8.138.14

  	
  Advisory
  Fees

  	
  75102

  
	
   

  	
  §8.15             Changes
  in Plans and Specifications

  	
  102

  
	
   

  	
  §8.16             Management
  Fees

  	
  102

  
	
  §9.

  	
   

  	
  FINANCIAL
  COVENANTS

  	
  102

  
	
   

  	
  §9.1

  	
  Borrowing
  Base

  	
  102

  
	
   

  	
  §9.2               Consolidated
  Total Indebtedness to Gross Asset Value

  	
  75102

  
	
   

  	
  §9.29.3

  	
  Adjusted
  Consolidated EBITDA to Consolidated Fixed Charges

  	
  75103

  
	
   

  	
  §9.39.4

  	
  Minimum
  Consolidated Tangible Net Worth

  	
  76103

  
	
   

  	
  §9.49.5

  	
  Unhedged
  Variable Rate Debt

  	
  76103

  
	
   

  	
   

  	
   

  	
   

  
	
  §10.

  	
  CLOSING
  CONDITIONS

  	
  76103

  
	
   

  	
   

  	
   

  
	
   

  	
  §10.1

  	
  Loan
  Documents

  	
  76103

  
	
   

  	
  §10.2

  	
  Certified
  Copies of Organizational Documents

  	
  76103

  
	
   

  	
  §10.3

  	
  Resolutions

  	
  76103

  
	
   

  	
  §10.4

  	
  Incumbency
  Certificate; Authorized Signers

  	
  76103

  
	
   

  	
  §10.5

  	
  Opinion
  of Counsel

  	
  76104

  
	
   

  	
  §10.6

  	
  Payment
  of Fees

  	
  77104

  
	
   

  	
  §10.7

  	
  Insurance

  	
  104

  
	
   

  	
  §10.8             Performance;
  No Default

  	
  77104

  
	
   

  	
  §10.810.9

  	
  Representations
  and Warranties

  	
  77104

  
	
   

  	
  §10.910.10

  	
  Proceedings
  and Documents

  	
  77104

  
	
   

  	
  §10.1010.11  

  	
  Eligible
  Real Estate Qualification Documents

  	
  104

  
	
   

  	
  §10.12

  	
  Compliance
  Certificate 77 and Borrowing Base Certificate

  	
  105

  
	
   

  	
  §10.13

  	
  Appraisals

  	
  105

  
	
   

  	
  §10.1110.14

  	
  Consents
  

  	
  77105

  
	
   

  	
  §10.1210.15

  	
  Contribution
  Agreement 

  	
  77105

  
	
   

  	
  §10.1310.16

  	
  Other
  

  	
  77105

  
	
   

  	
   

  	
   

  	
   

  
	
  §11.

  	
  CONDITIONS
  TO ALL BORROWINGS

  	
  77105

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §11.1

  	
  Prior
  Conditions Satisfied

  	
  77105

  
	
   

  	
  §11.2

  	
  Representations
  True; No Default

  	
  78105

  
	
   

  	
  §11.3

  	
  Borrowing
  Documents

  	
  78106

  
	
   

  	
  §11.4             Endorsement
  to Title Policy

  	
  106

  



 


v

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §11.5             

  	
  Future
  Advances Tax Payment

  	
  106

  
	
   

  	
   

  	
   

  	
   

  
	
  §12.

  	
  EVENTS
  OF DEFAULT; ACCELERATION; ETC

  	
  78106

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §12.1

  	
  Events
  of Default and Acceleration

  	
  78106

  
	
   

  	
  §12.2

  	
  Certain
  Cure Periods; Limitation of Cure Periods

  	
  81109

  
	
   

  	
  §12.3

  	
  Termination
  of Commitments

  	
  81110

  
	
   

  	
  §12.4

  	
  Remedies

  	
  82110

  
	
   

  	
  §12.5

  	
  Distribution
  of Collateral Proceeds

  	
  82111

  
	
   

  	
   

  	
   

  	
   

  
	
  §13.

  	
  SETOFF

  	
  83112

  
	
   

  	
   

  	
   

  
	
  §14.

  	
  THE
  AGENT

  	
  84112

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §14.1

  	
  Authorization

  	
  84112

  
	
   

  	
  §14.2

  	
  Employees
  and Agents

  	
  84113

  
	
   

  	
  §14.3

  	
  No
  Liability

  	
  84113

  
	
   

  	
  §14.4

  	
  No
  Representations

  	
  84113

  
	
   

  	
  §14.5

  	
  Payments

  	
  85114

  
	
   

  	
  §14.6

  	
  Holders
  of Notes

  	
  86115

  
	
   

  	
  §14.7

  	
  Indemnity

  	
  87115

  
	
   

  	
  §14.8

  	
  Agent
  as Lender

  	
  87116

  
	
   

  	
  §14.9

  	
  Resignation

  	
  87116

  
	
   

  	
  §14.10

  	
  Duties
  in the Case of Enforcement

  	
  88116

  
	
   

  	
  §14.11

  	
  Bankruptcy

  	
  88117

  
	
   

  	
  §14.12

  	
  Request
  for Agent Action

  	
  117

  
	
   

  	
  §14.13

  	
  Reliance
  by Agent

  	
  89118

  
	
   

  	
  §14.1314.14

  	
  Approvals

  	
  89118

  
	
   

  	
  §14.1414.15

  	
  Borrower
  Not Beneficiary

  	
  89118

  
	
   

  	
   

  	
   

  	
   

  
	
  §15.

  	
  EXPENSES

  	
  89119

  
	
   

  	
   

  	
   

  
	
  §16.

  	
  INDEMNIFICATION

  	
  90120

  
	
   

  	
   

  	
   

  
	
  §17.

  	
  SURVIVAL
  OF COVENANTS, ETC

  	
  91120

  
	
   

  	
   

  	
   

  
	
  §18.

  	
  ASSIGNMENT
  AND PARTICIPATION

  	
  91121

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §18.1

  	
  Conditions
  to Assignment by Lenders

  	
  91121

  
	
   

  	
  §18.2

  	
  Register

  	
  92122

  
	
   

  	
  §18.3

  	
  New
  Notes

  	
  93122

  



 


vi

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §18.4

  	
  Participations

  	
  93122

  
	
   

  	
  §18.5

  	
  Pledge
  by Lender

  	
  93123

  
	
   

  	
  §18.6

  	
  No
  Assignment by Borrower

  	
  93123

  
	
   

  	
  §18.7

  	
  Disclosure

  	
  94123

  
	
   

  	
  §18.8

  	
  Mandatory
  Assignment

  	
  94124

  
	
   

  	
  §18.9

  	
  Amendments
  to Loan Documents

  	
  95124

  
	
   

  	
  §18.10

  	
  Titled
  Agents

  	
  95124

  
	
   

  	
   

  	
   

  	
   

  
	
  §19.

  	
  NOTICES

  	
  95124

  
	
   

  	
   

  	
   

  
	
  §20.

  	
  RELATIONSHIP

  	
  97126

  
	
   

  	
   

  	
   

  
	
  §21.

  	
  GOVERNING
  LAW; CONSENT TO JURISDICTION AND SERVICE

  	
  97126

  
	
   

  	
   

  	
   

  
	
  §22.

  	
  HEADINGS

  	
  98127

  
	
   

  	
   

  	
   

  
	
  §23.

  	
  COUNTERPARTS

  	
  98127

  
	
   

  	
   

  	
   

  
	
  §24.

  	
  ENTIRE
  AGREEMENT, ETC

  	
  98127

  
	
   

  	
   

  	
   

  
	
  §25.

  	
  WAIVER
  OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS

  	
  98127

  
	
   

  	
   

  	
   

  
	
  §26.

  	
  DEALINGS
  WITH THE BORROWER

  	
  99128

  
	
   

  	
   

  	
   

  
	
  §27.

  	
  CONSENTS,
  AMENDMENTS, WAIVERS, ETC

  	
  99128

  
	
   

  	
   

  	
   

  
	
  §28.

  	
  SEVERABILITY

  	
  100129

  
	
   

  	
   

  	
   

  
	
  §29.

  	
  TIME
  OF THE ESSENCE

  	
  100129

  
	
   

  	
   

  	
   

  
	
  §30.

  	
  NO
  UNWRITTEN AGREEMENTS

  	
  100129

  
	
   

  	
   

  	
   

  
	
  §31.

  	
  REPLACEMENT
  NOTES

  	
  100129

  
	
   

  	
   

  	
   

  
	
  §32.

  	
  NO
  THIRD PARTIES BENEFITED

  	
  100130

  
	
   

  	
   

  	
   

  
	
  §33.

  	
  PATRIOT
  ACT

  	
  101130

  
	
   

  	
   

  	
   

  
	
  §34.       

  	
  CONSOLIDATION,
  AMENDMENT AND RESTATEMENT OF ASSIGNED NOTE

  	
  130

  



 


vii
















 


CREDIT AGREEMENT


 


THIS CREDIT AGREEMENT (this “Agreement”) is made
as of the 11th day of December, 2007, by and among BEHRINGER HARVARD OPERATING PARTNERSHIP I LP, a Texas limited
partnership (the “Borrower”), KEYBANK NATIONAL
ASSOCIATION (“KeyBank”), the other lending institutions which are
parties to this Agreement as “Lenders”, and the other lending institutions that
may become parties hereto pursuant to §18 (together with KeyBank, the “Lenders”),
and KEYBANK NATIONAL ASSOCIATION, as Agent
for the Lenders (the “Agent”), and KEYBANC CAPITAL MARKETS,
as Sole Lead Arranger and Sole Book Manager.


 


RECITALS


 


WHEREAS, the Borrower has requested that the Lenders
provide a revolving credit and term loan facility to the Borrower; and


 


WHEREAS, the Agent and the Lenders are willing to provide
such revolving credit and term loan facility to the Borrower on and
subject to the terms and conditions set forth herein;


 


WHEREAS, pursuant to that certain Transfer and Assignment
of Promissory Note and Other Loan Documents dated as of the First Amendment
Date (as hereinafter defined) from Borrower to Agent to be recorded in the real
property records of Harris County, Texas, Borrower is assigning to Agent an
existing construction loan and all loan documents relating thereto encumbering
Three Eldridge Place (hereinafter defined) in the original principal amount of
$46,000,000.00 (the “Loan Assignment”), which loan is evidenced and secured by (i) that
certain Loan Agreement dated January 15, 2008, between Borrower and
Behringer Harvard Eldridge Land LP, a Texas limited partnership (“Eldridge
Owner”) (the “Eldridge Loan Agreement”), (ii) that certain Promissory Note
dated January 15, 2008, executed by Eldridge Owner payable to the order of
Borrower in the original principal amount of $46,000,000.00 (the “Assigned Note”),
(iii) that certain Deed of Trust, Security Agreement, Financing Statement
and Assignment of Rental dated as of January 15, 2008, made by Borrower in
favor of Patrick M. Arnold, a Trustee, for the benefit of Borrower, and
recorded on February 7, 2008 as Instrument No. 20080063668 in the
real property records of Harris County, Texas, and (iv) that certain
Absolute Assignment of Leases and Rents dated as of January 15, 2008, made by
Borrower in favor of Assignor, and recorded on February 7, 2008 as
Instrument No. 20080063669 in the real property records of Harris County,
Texas; and


 


WHEREAS, as a result of such Loan Assignment, the Eldridge
Loan Agreement and the Assigned Note are being amended, restated, renewed,
consolidated and bifurcated with this Agreement and the Revolving Credit Notes
delivered pursuant hereto (as hereinafter defined).


 


NOW, THEREFORE, in consideration of the recitals herein and
mutual covenants and agreements contained herein, the parties hereto hereby
covenant and agree as follows:


 


§1.                                DEFINITIONS AND
RULES OF INTERPRETATION.


 


§1.1         Definitions.  The following terms shall have the meanings
set forth in this §l or elsewhere in the provisions of this Agreement referred
to below:


 


[Credit Agreement]


 

















 


5 Wayside.  The Real Estate
located at 5 Wayside, Boston (Burlington), Massachusetts.


 


15 Wayside.  The Real Estate
located at 15 Wayside, Boston (Burlington), Massachusetts.


 


222
Riverside Plaza.  The Real
Estate located at 222 South Riverside
Plaza, Chicago, Illinois.


 


1325
G Street.  The Real
Estate located at 1325 G Street NW, Washington,
D.C.


 


5104 Eisenhower Boulevard.  The
Real Estate located at 5104 Eisenhower Boulevard, Tampa, Florida.


 


Acknowledgments.  The Acknowledgments executed by the applicable
Companies in favor of the Agent, acknowledging the pledge of Equity Interests
in such Company to Agent, such Acknowledgement to be in form and substance reasonably
satisfactory to Agent.


 


Additional
Commitment Request Notice.  See
§2.112.10(a).


 


Additional
Guarantor.  Each
additional Subsidiary of Borrower which becomes a Subsidiary Guarantor pursuant
to §5.2.5.5.


 


Additional
Pledgor.  Each
additional Pledgor which becomes a Pledgor pursuant to §5.3.  For the
avoidance of doubt, from and after the First Amendment Date, Additional
Pledgors shall only be added with respect to grants of Equity Interests and/or
Distribution Interests in direct or indirect owners of Mortgaged Properties
added to the Borrowing Base pursuant to §5.3.


 


Adjusted
Consolidated EBITDA.  On any date
of determination, the sum of (a) the Consolidated EBITDA for the prior four
(4) fiscal quarters most recently ended, less (b) the Capital
Reserve.


 


Adjusted Net Operating Income.  On
any date of determination, Net Operating Income from the Mortgaged Properties less
Capital Reserve allocable to the Mortgaged Properties for the prior four (4) fiscal
quarters most recently ended.  With respect
to any Mortgaged Properties acquired less than four (4) fiscal quarters
prior to the date of determination, the Adjusted Net Operating Income allocable
to such Mortgaged Properties shall be determined based on the Net Operating
Income and Capital Reserve for all completed fiscal quarters since the date of acquisition,
annualized based on the number of complete quarters since the date of
acquisition.


 


Advisor.  Behringer Advisors, LLC, a Texas limited liability
company and successor by merger to Behringer Advisors LP, a Texas limited
partnership, Behringer Harvard Real Estate Services, LLC, or any other Affiliate
of Behringer Advisors, LLC to whom relevant duties under the Advisory Agreement
are delegated (provided that any such delegation is subject 


 


2

















 


to,
and the applicable Affiliate agrees to be bound by, the Subordination of
Advisory Agreement).


 


Advisory
Agreement.  The Fifth
Amended and Restated Advisory Management Agreement dated December 29,
2006, by and between REIT, Advisor and Behringer Harvard Real Estate Services,
LLC, a Texas limited liability company, as
amended by that certain First Amendment to Fifth Amended and Restated Advisory
Management Agreement dated as of June 25, 2008, as the same may be
amended, restated, supplemented or otherwise modified in accordance with the
terms hereof.


 


Affiliate.  An Affiliate, as applied to any Person, shall
mean any other Person directly or indirectly controlling, controlled by, or
under common control with, that Person. 
For purposes of this definition, “control” (including, with correlative
meanings, the terms “controlling”, “controlled by” and “under common control
with”), as applied to any Person, means (a) the possession, directly or
indirectly, of the power to vote twenty percent (20%) or more of the stock,
shares, voting trust certificates, beneficial interest, partnership interests,
member interests or other interests having voting power for the election of
directors of such Person or otherwise to direct or cause the direction of the
management and policies of that Person, whether through the ownership of voting
securities or by contract or otherwise, or (b) the ownership of (i) a
general partnership interest, (ii) a managing member’s or manager’s
interest in a limited liability company or (iii) a limited partnership
interest or preferred stock (or other ownership interest) representing twenty
percent (20%) or more of the outstanding limited partnership interests,
preferred stock or other ownership interests of such Person.


 


Agent.  KeyBank National Association, acting as
administrative agent for the Lenders, and its successors and assigns.


 


Agent’s
Head Office.  The Agent’s
head office located at 127 Public Square, Cleveland, Ohio 44114-1306, or at
such other location as the Agent may designate from time to time by notice to
the Borrower and the Lenders.


 


Agent’s
Special Counsel.  McKenna
Long & Aldridge LLP or such other counsel as selected by Agent.


 


Agreement.  This Credit Agreement, including the Schedules
and Exhibits hereto.


 


Agreement
Regarding Fees.  See §4.2.


 


Applicable
Margin.  On any
date, the Applicable Margin set forth below based on the ratio of the
Consolidated Total Indebtedness to the Gross Asset Value:


 


3

















 


	
  Pricing Level

  	
   

  	
  Ratio

  	
   

  	
  Applicable

  Margin for

  LIBOR Rate

  Loans

  	
   

  	
  Applicable

  Margin for

  Base Rate

  Loans

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pricing Level 1

  	
   

  	
  Less
  than or equal to 50%

  	
   

  	
  1.50

  	
  %

  	
  0.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pricing Level 2

  	
   

  	
  Greater
  than 50% but less than or equal to 60%

  	
   

  	
  1.65

  	
  %

  	
  0.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pricing Level 3

  	
   

  	
  Greater
  than 60% but less than or equal to 65%

  	
   

  	
  1.80

  	
  %

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pricing Level 4

  	
   

  	
  Greater
  than 65%

  	
   

  	
  2.00

  	
  %

  	
  0.50

  	
  %

  



 


The
initial Applicable Margin shall be at Pricing Level 4.  The Applicable Margin shall not be adjusted
based upon such ratio, if at all, until the first (1st) day of the first (1st) month following the
delivery by Borrower to the Agent of the Compliance Certificate at the end of a
calendar quarter.  In the event that Borrower
shall fail to deliver to the Agent a quarterly Compliance Certificate on or
before the date required by §7.4(c), then without limiting any other rights of
the Agent and the Lenders under this Agreement, the Applicable Margin for Loans
shall be at Pricing Level 4 until such failure is cured within any applicable
cure period, in which event the Applicable Margin shall adjust, if necessary,
on the first (1st) day of the
first (1st) month
following receipt of such Compliance Certificate.


 


If
the consolidated financial statements of REIT and its Subsidiaries are revised,
restated or otherwise adjusted, and any such adjustment establishes that the
Applicable Margin was calculated at a level which resulted in lower (or higher)
pricing than warranted for any period, the Borrower shall within five (5) Business
Days of such determination pay to Agent for the account of the Lenders the
amount of the excess that should have been paid for such period (or, if it is
determined as a result of such adjustment that such Applicable Margin was
originally miscalculated at a higher pricing level, the Agent shall credit the
amount of such overpayment towards any additional amounts due pursuant to this
paragraph).


 


Allocated Loan Amount.  The
Allocated Loan Amount with respect to any Mortgaged Property means (a) the
Appraised Value of such Mortgaged Property (or during the Initial Term with respect
to Three Eldridge Place, the value accorded to Three Eldridge Place in the
Borrowing Base Value calculation, after giving effect to the twenty-five
percent (25%) limit on the value of Three Eldridge Place in such calculation)
multiplied by (b) (i) 0.60 during the Initial Term, or (ii) 0.575
during the Extension Term.


 


Appraisal.  An MAI appraisal of
the value of a parcel of Real Estate, determined on an “as-is” market value
basis, performed by an independent appraiser selected by the Agent who is not an
employee of Borrower or any of its Subsidiaries, the Agent or a Lender, the
form and substance of such appraisal and the identity of the appraiser to be in
compliance with the Financial Institutions Reform, Recovery and Enforcement Act
of 1989, as amended, the rules and regulations adopted pursuant thereto
and all other regulatory laws and policies (both regulatory and internal)
applicable to the Lenders and otherwise acceptable to the Agent.


 


Appraised Value.  The “as-is”
market value of a parcel of Real Estate determined by the most recent Appraisal
of such Real Estate, obtained pursuant to §2.11(f) or §10.13; subject,
however, to such changes or adjustments to the value determined thereby as may
be required by the appraisal department of the Agent in its good faith business
judgment.


 


Arranger.  KeyBanc Capital Markets or any successor.


 


4

















 


Assignment
and Acceptance Agreement.  See
§18.1.


 


Assignment of Leases and Rents. 
Each of the assignments of leases and rents from Borrower or a
Subsidiary Guarantor that is an owner of a Mortgaged Property to the Agent, as
it may be modified or amended, pursuant to which there shall be assigned to the
Agent for the benefit of the Lenders a security interest in the interest of the
Borrower or such Subsidiary Guarantor, as the case may be, as lessor with
respect to all Leases of all or any part of each Mortgaged Property, each such
assignment entered into after the date hereof to be substantially in the form
of Exhibit C attached hereto, with such changes thereto as Agent may reasonably
require as a result of state law or practice.


 


Authorized
Officer.  Any of the following
Persons:  Gary S. Bresky, Cindy CooperMichael A. Ernst, Scott Fordham, Andrew Bruce,
Gerald J. Reihsen, III, Thomas August,
Telisa Schelin and such other Persons as Borrower shall designate in a
written notice to Agent.


 


Balance
Sheet Date.  September 30,
2007.December 31, 2008.


 


Bankruptcy
Code.  Title 11, U.S.C.A., as amended
from time to time or any successor statute thereto.


 


Base
Rate.  The greater of (a) the
fluctuating annual rate of interest announced from time to time by the Agent at
the Agent’s Head Office as its “prime rate” or (b) one half of one percent
(0.5%) above the Federal Funds Effective Rate. 
The Base Rate is a reference rate and does not necessarily represent the
lowest or best rate being charged to any customer.  Any change in the rate of interest payable hereunder
resulting from a change in the Base Rate shall become effective as of the
opening of business on the day on which such change in the Base Rate becomes
effective, without notice or demand of any kind.


 


Base
Rate Loans. 
Collectively, the Revolving Credit Base Rate Loans, the Term Base Rate
Loans and the Swing Loans.


 


Beacon Portfolio.  Collectively,
the Real Estate located at 200 South Wacker Drive, Chicago, Illinois, 10 South
Riverside and 120 South Riverside, Chicago, Illinois, and 440 South LaSalle
Street, Chicago, Illinois.


 


Borrower.  Behringer Harvard Operating Partnership I LP,
a Texas limited partnership.


 


Borrowing Base.  The Initial
Mortgaged Properties plus any assets subsequently added as Mortgaged Properties
pursuant to §5.3 of this Agreement and minus any Mortgaged Properties
subsequently released pursuant to §5.4 of this Agreement.


 


Borrowing Base Availability.  At
any time, the amount which is the lesser of (a) sixty percent (60%) of the
Borrowing Base Value during the Initial Term, or fifty-seven and one-half
percent (57.5%) of the Borrowing Base Value during the Extension Term and (b) the
Debt Service Coverage Amount for the Mortgaged Properties.


 


Borrowing Base Certificate.  See
§7.4(c).


 


5

















 


Borrowing Base Value.  The
Borrowing Base Value for Eligible Real Estate owned by the Borrower or any
Subsidiary Guarantor included in the Borrowing Base shall be the amount which
is the sum of (a) the Appraised Values of each Mortgaged Property (other
than Three Eldridge Place) as most recently determined under §2.11(f) or
§10.13, as applicable, plus (b) (i) during the Initial Term, the cash
incurred costs of Three Eldridge Place, or (ii) during the Extension Term,
the Appraised Value of Three Eldridge Place determined under §2.11(f); provided,
however, that the value accorded to Three Eldridge Place for purposes of
determining Borrowing Base Value shall not exceed twenty-five percent (25%) of
the Borrowing Base Value until it becomes a Stabilized Property.  Notwithstanding anything in this Agreement to
the contrary, Three Eldridge Place shall not be included in the calculation of
Borrowing Base Value until such time as Agent has received an Appraisal of
Three Eldridge Place (provided that only the Appraisal obtained pursuant to
§2.11(f) shall be considered for determining the Borrowing Base Value
attributable to Three Eldridge Place).


 


Breakage
Costs.  The cost to any Lender of
re-employing funds bearing interest at LIBOR incurred (or reasonably expected
to be incurred) in connection with (i) any payment of any portion of the
Loans bearing interest at LIBOR prior to the termination of any applicable
Interest Period, (ii) the conversion of a Revolving
Credit LIBOR Rate Loan to any other applicable interest rate on a date
other than the last day of the relevant Interest Period, or (iii) the
failure of the Borrower to draw down, on the first day of the applicable
Interest Period, any amount as to which the Borrower has elected a Revolving Credit LIBOR Rate Loan.


 


Building.  With respect to each Mortgaged Property or other parcel of Real Estate, all of the
buildings, structures and improvements now or hereafter located thereon.


 


Business
Day.  Any day on which banking
institutions located in the same city and State as the Agent’s Head Office are
located are open for the transaction of banking business and, in the case of Revolving Credit LIBOR Rate Loans, which also
is a LIBOR Business Day.


 


Capital
Reserve.  For any period of four (4) consecutive
fiscal quarters and with respect to any improved Real Estate, an amount equal
to $0.15 multiplied by the total square footage of the Buildings in such Real
Estate on a Consolidated basis.  If the
term Capital Reserve is used without reference to any specific Real Estate,
then the amount shall be determined on an aggregate basis with respect to all
Real Estate of the Borrower and its Subsidiaries and a proportionate share of
all Real Estate of all Unconsolidated Affiliates.  The Capital Reserve shall be calculated based
on the total square footage of the Buildings owned (or ground leased) at the end
of each fiscal quarter.


 


Capitalization
Rate.  7.50%.


 


Capitalized
Lease.  A lease under which the
discounted future rental payment obligations of the lessee or the obligor are
required to be capitalized on the balance sheet of such Person in accordance
with GAAP.


 


Cash
Equivalents.  As of any
date, (i) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality thereof having
maturities of not more than one year from such date, (ii) time deposits
and certificates of 


 


6

















 


deposits
having maturities of not more than one year from such date and issued by any
domestic commercial bank having, (A) senior long term unsecured debt rated
at least A or the equivalent thereof by S&P or A2 or the equivalent thereof
by Moody’s and (B) capital and surplus in excess of $100,000,000.00; (iii) commercial
paper or municipal bonds rated at least A-1 or the equivalent thereof by
S&P or P-1 or the equivalent thereof by Moody’s and in either case maturing
within one hundred twenty (120) days from such date, and (iv) shares of
any money market mutual fund rated at least AAA or the equivalent thereof by
S&P or at least Aaa or the equivalent thereof by Moody’s.


 


CERCLA.  See §6.19.


 


Centreport Office Center.  The
Real Estate located at 14760-14770 Trinity Boulevard, Fort Worth, Texas.


 


CERCLA.  The Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended.


 


Change
of Control.  A Change of
Control shall exist upon the occurrence of any of the following:


 


(a)           following the IPO
Event, any Person (including a Person’s Affiliates and associates) or group (as
that term is understood under Section 13(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and
regulations thereunder), shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act) of a percentage (based on
voting power, in the event different classes of stock or voting interests shall
have different voting powers) of the voting stock or voting interests of REIT
or the Borrower equal to at least twenty percent (20.0%);


 


(b)           as of any date a
majority of the Board of Directors or Trustees or similar body (the “Board”)  of REIT or the Borrower consists of individuals who were
not either (i) directors or trustees of REIT or the Borrower as of the
corresponding date of the previous year, or (ii) selected or nominated to
become directors or trustees by the Board of REIT or the Borrower of which a majority
consisted of individuals described in clause (b)(i) above, or (iii) selected
or nominated to become directors or trustees by the Board of REIT or the Borrower,
of which a majority consisted of individuals described in clause (b)(i) above
and individuals described in clause (b)(ii) above (excluding, in the case
of both clause (ii) and (iii) above, any individual whose initial
nomination for, or assumption of office as, a member of the Board occurs as a
result of an actual or threatened solicitation of proxies or consents for the
election or removal of one or more directors or trustees by any Person or group
other than a solicitation for the election of one or more directors or trustees
by or on behalf of the Board); or


 


(c)           REIT or the Borrower
consolidates with, is acquired by, or merges into or with any Person (other
than a merger permitted by §8.4); or


 


(d)           the Borrower shall
no longer be directly or indirectly eighty percent (80%) owned and controlled
by REIT; or


 


7

















 


(e)           the Borrower fails
to own, directly or indirectly, free of any lien, encumbrance or other adverse
claim, at least one hundred percent (100%) of the economic, voting and
beneficial interest of each Subsidiary Guarantor (subject to the terms of §5.7  of §5.4 regarding the release
of Subsidiary Guarantors); or


 


(f)            Prior to an Internalization with respect to the
Advisor which results in the Advisor ceasing or substantially ceasing the
performance of all services, any two (2) of Michael Ernst, Thomas August, Robert S.
Aisner, Gerald J. Reihsen, III, Robert M. Behringer and Gary S. Bresky shall
die or become disabled or otherwise cease to be active on a daily basis in the
management of the Borrower and, prior to the merger of the Advisor with and
into the Borrower, the Advisor, provided that if any two (2 the Advisor, and such event results in fewer than
three (3) of such individuals being active on a daily basis in the
management of the Borrower and the Advisor; provided that if fewer than three (3) of
such individuals shall die or become disabled or otherwise ceasecontinue to be active on a daily basis in the
management of the Borrower and, prior to the merger of the Advisor with and
into the Borrower, the Advisor, it shall not be a “Change of Control” if a replacement
executive(s) of comparable experience
and reasonably satisfactory to the Agent shall have been retained within three (3) months
of such event such that there are not fewer than
three (3) such individuals active in the daily management of Borrower and
Advisor; or


 


(g)           After
the Internalization with respect to the Advisor which results in the Advisor
ceasing or substantially ceasing the performance of all services, any of
Michael Ernst, Thomas August, Robert S. Aisner, Gerald J. Reihsen, III,
Robert M. Behringer and Gary S. Bresky shall die or become disabled or
otherwise cease to be active on a daily basis in the management of the Borrower
or serve as board members of the Borrower, and such event results in fewer than
three (3) of such individuals, at least one of whom is Michael Ernst or
Thomas August, being active on a daily basis in the management of the Borrower
or serving as board members of the Borrower; provided that if fewer than three (3) of
such individuals shall continue to be active on a daily basis in the management
of the Borrower, it shall not be a “Change of Control” if a replacement
executive of comparable experience and reasonably satisfactory to the Agent
shall have been retained within three (3) months of such event such that
there are not fewer than three (3) such individuals active in the daily
management of Borrower or serving as board members of the Borrower, provided
that in all events one of Michael Ernst or Thomas August is still active
on a daily basis in the management of the Borrower or is serving as a board
member of the Borrower unless a replacement executive of comparable experience
and reasonably satisfactory to the Agent shall have been retained within three (3) months
of the date upon which neither of such Persons is still active on a daily basis
in the management of Borrower or is serving as a board member of the Borrower;
or


 


(h)           (g) prior to the merger
of the Advisor with and into the Borrower or REIT, (i) the Borrower shall
no longer be managed and advised by Advisor, or (ii) the Advisor shall no
longer be directly or indirectly majority owned and controlled by Behringer
Harvard Holdings.


 


For purposes of subsections (f) and (g) above, Robert
Chapman, Andrew Bruce or Scott Fordham shall be deemed to be satisfactory
replacement executives.


 


8

















 


Closing
Date.  The first date on which all
of the conditions set forth in §10 and §11 have been satisfied.December 11, 2007.


 


Code.  The Internal Revenue Code of 1986, as
amended.


 


Collateral.  All of the property, rights and interests of
the Borrower and its Subsidiaries which are subject to the security interests and
liens created by the Security Documents,
including, without limitation, the Mortgaged Properties.


 


Commitment.  With respect to each Lender, the aggregate
of (a) the Revolving Credit Commitment of such Lender and (b) the
Term Loan Commitment of such Lenderamount
set forth on Schedule 1.1 hereto as the amount of such Lender’s Commitment to
make or maintain Revolving Credit Loans (other than Swing Loans) to the
Borrower, to participate in Letters of Credit for the account of the Borrower
and to participate in Swing Loans to the Borrower, as the same may be changed
from time to time in accordance with the terms of this Agreement.


 


Commitment
Increase.  An increase
in the Total Revolving Credit Commitment to not more than $600,000,000.00300,000,000.00 pursuant to §2.11.2.10.


 


Commitment
Increase Date.  See §2.112.10(a).


 


Commitment
Percentage.  With
respect to each Lender, the percentage set forth on Schedule 1.1 hereto
as such Lender’s percentage of the aggregate Commitments of all of the
LendersTotal Commitment, as the same
may be changed from time to time in accordance with the terms of this Agreement; provided that if the Commitments of the Lenders
have been terminated as provided in this Agreement, then the Commitment Percentage
of each Lender shall be determined based on the Commitment Percentage of such
Lender immediately prior to such termination and after giving effect to any
subsequent assignments made pursuant to the terms hereof.


 


Company.  Any Person which directly owns Real Estate in
which the Borrower or an Additional Pledgor directly owns an Equity Interest
and through which the Borrower or such Additional Pledgor receives or is
entitled to receive Distributions with respect to such Real Estate, including,
without limitation, each “Company” as defined in the Pledge of Distributions and
the Pledge Agreement.


 


Completion Date.  December 31,
2009.


 


Compliance
Certificate.  See
§7.4(c).


 


Condemnation Proceeds.  All
compensation, awards, damages, judgments and proceeds awarded to the Borrower
or a Subsidiary Guarantor by reason of any Taking, net of all reasonable and
customary amounts actually expended to collect the same, including, without
limitation, reasonable and customary amounts expended in negotiating,
litigating, if appropriate, or investigating the amount of such compensation,
awards, damages, judgments and proceeds.


 


9

















 


Consolidated.  With reference to any term defined herein,
that term as applied to the accounts of a Person and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP.


 


Consolidated
EBITDA.  With respect to any period, an
amount equal to the EBITDA of REIT, the Borrower and their respective
Subsidiaries for such period determined on a Consolidated basis.


 


Consolidated
Fixed Charges.  On any date
of determination, the sum of (a) Consolidated Interest Expense for the
period of four (4) fiscal quarters most recently ended (both expensed and
capitalized), plus (b) all regularly scheduled principal payments
made with respect to Indebtedness of REIT, the Borrower and their respective
Subsidiaries during such period, other than any balloon, bullet or similar
principal payment which repays such Indebtedness in full, plus (c) all
Preferred Distributions paid during such period.  Such Person’s Equity Percentage in the fixed
charges referred to above of its Unconsolidated Affiliates shall be included in
the determination of Consolidated Fixed Charges.  Consolidated Fixed Charges of a Person and
its Subsidiaries relating to Indebtedness that has been Defeased shall not be
deemed part of Consolidated Fixed Charges.


 


Consolidated
Interest Expense.  On any date
of determination, without duplication, (a) total Interest Expense of REIT,
the Borrower and their respective Subsidiaries determined on a Consolidated
basis in accordance with GAAP for the period of four (4) fiscal quarters
most recently ended, plus (b) such Person’s Equity Percentage of
Interest Expense of its Unconsolidated Affiliates for such period.


 


Consolidated
Tangible Net Worth.  The amount
by which Gross Asset Value exceeds Consolidated Total Indebtedness.


 


Consolidated
Total Indebtedness.  All
Indebtedness of REIT, the Borrower and their respective Subsidiaries determined
on a Consolidated basis and shall include (without duplication), such Person’s Equity
Percentage of the Indebtedness of its Unconsolidated Affiliates.  Indebtedness or other liabilities of a Person
and its Subsidiaries that would otherwise be included in Consolidated Total
Indebtedness that has been Defeased or paid shall not be deemed part of
Consolidated Total Indebtedness.


 


Construction
in Progress.  On a Consolidated
basis for REIT, the Borrower and their respective Subsidiaries, the sum of all
cash expenditures for land and improvements (including indirect costs
internally allocated and development costs) in accordance with GAAP on
properties that are under construction or with respect to which construction is
reasonably scheduled to commence within twelve (12) months of the relevant
determination.  For the purposes of
calculating Construction in Progress of REIT, the Borrower and their respective
Subsidiaries with respect to properties under construction of Unconsolidated
Affiliates, the Construction in Progress of REIT, the Borrower and their
respective Subsidiaries shall be the lesser of (a) the Investment of REIT,
the Borrower or such Subsidiary in the applicable Unconsolidated Affiliate or (b) REIT’s,
the Borrower’s or such Subsidiary’s pro rata share (based upon the Equity
Percentage of such Person in such Unconsolidated Affiliate) of such
Unconsolidated Affiliate’s Construction in Progress.


 


10
















 


Contribution
Agreement.  That
certain Contribution Agreement dated of even date herewith among REIT, the
Borrower, the Guarantors and each Additional Guarantor which may hereafter
become a party thereto, as the same may be modified, amended or ratified from
time to time.


 


Conversion/Continuation
Request.  A notice given by the Borrower
to the Agent of its election to convert or continue a Loan in accordance with
§4.1.


 


Debt Service Coverage Amount.  At
any time determined by Agent, an amount equal to the maximum principal loan
amount amortized over a thirty (30) year period which, when bearing interest at
a rate per annum equal to the greater of (i) the then-current annual yield
on ten (10) year obligations issued by the United States Treasury most
recently prior to the date of determination plus two hundred fifty (250) basis
points (2.5%) and (ii) seven percent (7%), would be payable by the monthly
principal and interest payment amount resulting from dividing (a) Adjusted
Net Operating Income from the Mortgaged Properties divided by 1.30 during the
Initial Term or by 1.40 during the Extension Term, by (b) 12.  Attached hereto as Schedule 9 is an example
of the calculation of Debt Service Coverage Amount (such example is meant only
as an illustration based upon the assumptions set forth in such example, and
shall not be interpreted so as to limit the Agent in its good faith
determination of the Debt Service Coverage Amount hereunder).  The determination of the Debt Service
Coverage Amount and the components thereof by the Agent shall, so long as the
same shall be determined in good faith, be conclusive and binding absent demonstrable
error.


 


Default.  See §12.1.


 


Default
Rate.  See §4.12.4.11.


 


Defeased.  Indebtedness is deemed “Defeased” when it has
been defeased in accordance with its terms. 
In addition, the $40,000,000 of 6.00% convertible debentures issued by IPC
US Real Estate Investment Trust in the aggregate outstanding principal amount
of $11,294,000.00 as of the date hereof and the $60,000,000 of 5.75%
convertible debentures issued by IPC US Real Estate Investment Trust in the
aggregate outstanding principal amount of $56,320,000.00 as of the date hereof shall
for the purposes of this Agreement be deemed “Defeased” so long as Borrower has
irrevocably deposited with the applicable trustee as security cash or other
liquid securities in an amount sufficient to pay all interest and principal on
such obligations through maturity.


 


Delinquent
Lender.  See §14.5(c).


 


Derivatives
Contract. Any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), 


 


11

















 


whether
or not any such transaction is governed by or subject to any master
agreement.  Not in limitation of the
foregoing, the term “Derivatives Contract” includes any and all transactions of
any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement, or any other master agreement of similar
type, including any such obligations or liabilities under any such master
agreement.


 


Derivatives
Termination Value.  In respect
of any one or more Derivatives Contracts, after taking into account the effect
of any legally enforceable netting agreement relating to such Derivatives
Contracts, (a) for any date on or after the date such Derivatives
Contracts have been closed out and termination value(s) determined in
accordance therewith, such termination value(s), and (b) for any date
prior to the date referenced in clause (a) the amount(s) determined
as the mark-to-market value(s) for such Derivatives Contracts, as
determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Derivatives Contracts
(which may include Chatham Financial, the Agent or any Lender).


 


Development
Property.  Real Estate
currently under development that has not become a Stabilized Property or on
which the improvements related to the development have not been completed,
provided that such a Development Property on which all improvements related to
the development of such Real Estate have been substantially completed
(excluding tenants improvements) for at least twelve (12) months shall cease to
constitute a Development Property notwithstanding the fact that such Property
has not become a Stabilized Property, and shall be considered a Stabilized
Property for the purposes of the calculation of Gross Asset Value.


 


Distribution.  Any (a) dividend or other distribution,
direct or indirect, on account of any Equity Interest of REIT, the Borrower or
any of their respective Subsidiaries now or hereafter outstanding, except a
dividend payable solely in Equity Interests of identical class to the holders
of that class; (b) redemption, conversion, exchange, retirement, sinking
fund or similar payment, purchase or other acquisition for value, direct or
indirect, of any Equity Interest of REIT, the Borrower or any of their
respective Subsidiaries now or hereafter outstanding; and (c) payment made
to retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire any Equity Interests of REIT, the Borrower or any of
their respective Subsidiaries now or hereafter outstanding.


 


Distribution
Interests. 
Collectively, one hundred percent (100%) of the Borrower’s or a Pledgor’s
right, title and interest in and to any “Distributions” (as such term is
generally used in the Pledge of Distributions and the Pledge Agreement)
directly from a Company.


 


Dividend
Reinvestment Proceeds.  All
dividends or other distributions, direct or indirect, on account of any Equity
Interest of any Person which any holder(s) of such Equity Interests direct
to be used, concurrently with the making of such dividend or distribution, for
the purposes of purchasing for the account of such holder(s) additional
Equity Interests in such Person or any of its Subsidiaries.


 


12

















 


Dollars or $.  Dollars in lawful currency of the United
States of America.


 


Domestic
Lending Office.  Initially,
the office of each Lender designated as such on Schedule 1.1 hereto;
thereafter, such other office of such Lender, if any, located within the United
States that will be making or maintaining Revolving
Credit Base Rate Loans.


 


Drawdown
Date.  The date on which any Loan is made
or is to be made, and the date on which any Loan which is made prior to the Revolving
Credit Maturity Date or the Term Loan Maturity Date, as applicable, is
converted in accordance with §4.1.


 


EBITDA.  With respect to a Person for any period
(without duplication): (a) net income (or loss) of such Person for such
period determined on a Consolidated basis in accordance with GAAP, exclusive of
the following (but only to the extent included in the determination of such net
income (loss)):  (i) depreciation
and amortization expense; (ii) Interest Expense; (iii) income tax
expense; and (iv) extraordinary or non-recurring gains and losses, (v) gains from early extinguishment of
debt, and (vi) asset management fees that are subordinate to the
Obligations (which asset management fees shall not be increased except as
provided in §7.15); plus (b) such Person’s pro rata share of EBITDA
determined in accordance with clause (a) above of its Unconsolidated
Affiliates.  “EBITDA” shall be adjusted
to remove any impact of straight lining of rents and amortization of
intangibles pursuant to FAS 141, as issued by the Financial Accounting
Standards Board in June of 2001. 
EBITDA shall not include any income or other items from assets which are
pledged for Indebtedness that has been Defeased.


 


Eldridge Construction Contract. 
That certain AIA Document A121 CMc - 2003 and AGC Document 565 (Standard
Form of Agreement Between Owner and Construction Manager), dated March 31,
2008, between Three Eldridge Place Owner and E.E. Reed Construction, LP, as
amended by AIA Document A121 CMc - 2003 Amendment No. 1.


 


Eldridge Reserve.  An amount
equal to one hundred ten percent (110%) of the amount reasonably estimated by
Agent from time to time as all sums remaining to be paid to complete the
Improvements to Three Eldridge Place under the Eldridge Construction Contract,
as adjusted by Agent pursuant to §7.24. 
As of the First Amendment Date, the amount of the Eldridge Reserve is
$17,468,145.20.


 


Eligible Real Estate.  Real Estate:


 


(a)           which
is wholly-owned in fee by the Borrower or a Subsidiary Guarantor;


 


(b)           which
is located within the contiguous 48 States of the continental United States or
the District of Columbia, excluding those States which prescribe a “single-action”
or similar rule limiting the rights of creditors secured by real property,
which exclusion shall apply, without limitation, to the States of California
and Washington except to the extent such exclusion is waived in writing by the
Required Lenders with respect to a specific parcel of Real Estate;


 


(c)           which
is improved by an income-producing office property (other than the Development
Property until it is completed as required by this Agreement);


 


13

















 


(d)           as to
which all of the representations set forth in §6 of this Agreement concerning
Mortgaged Property are true and correct;


 


(e)           as to
which the Agent has received and approved all Eligible Real Estate
Qualification Documents, or will receive and approve them prior to inclusion of
such Real Estate in the Borrowing Base; and


 


(f)            as
to which, notwithstanding anything to the contrary contained herein, but
subject to the last sentence of §5.3, the Agent and the Required Lenders have
approved for inclusion in the Borrowing Base.


 


Eligible Real Estate Qualification Documents.  See
Schedule 5.3 attached hereto.


 


Employee
Benefit Plan.  Any
employee benefit plan within the meaning of §3(3) of ERISA maintained or
contributed to by REIT or any ERISA Affiliate, other than a Multiemployer Plan.


 


Environmental
Engineer.  Any firm of
independent professional engineers or other scientists generally recognized as
expert in the detection, analysis and remediation of Hazardous Substances and
related environmental matters and acceptable to the Agent in its reasonable
discretion.


 


Environmental
Laws.  As defined in the Indemnity
Agreement.


 


Equity
Interests.  With
respect to any Person, (i) any share of capital stock of (or other
ownership or profit interests in) such Person; (ii) any warrant, option or
other right for the purchase or other acquisition from such Person of (a) any
share of capital stock of (or other ownership or profit interests in) such
Person, or (b) any security convertible into or exchangeable for any share
of capital stock of (or other ownership or profit interests in) such Person or
warrant, right or option for the purchase or other acquisition from such Person
of such shares (or such other interests) and whether or not such share,
warrant, option, right or other interest is authorized or otherwise existing on
any date of determination; and (iii) any other ownership or profit
interest in such Person (including, without limitation, partnership, member or
trust interests therein), whether voting or nonvoting.


 


Equity
Offering.  The issuance
and sale after the Closing Date by the Borrower or any of its Subsidiaries or
REIT of any equity securities of such Person (other than equity securities
issued to Borrower, REIT or any one or more of their Subsidiaries in their
respective Subsidiaries).


 


Equity
Percentage.  The
aggregate ownership percentage of REIT, the Borrower or their respective
Subsidiaries in each Unconsolidated Affiliate, as reasonably approved by the
Agent.


 


ERISA.  The Employee Retirement Income Security Act
of 1974, as amended and in effect from time to time.


 


14

















 


ERISA
Affiliate. Any Person which is treated as a single employer
with REIT or its Subsidiaries under §414 of the Code.


 


ERISA
Reportable Event.  A
reportable event with respect to a Guaranteed Pension Plan within the meaning
of §4043 of ERISA and the regulations promulgated thereunder as to which the
requirement of notice has not been waived.


 


Event
of Default.  See §12.1.


 


Extension Term.  The period
beginning on the Maturity Date and continuing thereafter, if exercised by
Borrower pursuant to §2.11.


 


Federal
Funds Effective Rate.  For any
day, the rate per annum (rounded upward to the nearest one-hundredth of one
percent (1/100 of 1%)) announced by the Federal Reserve Bank of Cleveland on
such day as being the weighted average of the rates on overnight federal funds
transactions arranged by federal funds brokers on the previous trading day, as
computed and announced by such Federal Reserve Bank in substantially the same
manner as such Federal Reserve Bank computes and announces the weighted average
it refers to as the “Federal Funds Effective Rate.”


 


First Amendment Date.  June 9,
2009, the date of that certain First Amendment to Credit Agreement and Other
Loan Documents between Borrower, Agent and the Lenders, among other parties.


 


Funds
from Operations.  With
respect to any Person for any period, an amount equal to the Net Income (or
Loss) of such Person for such period, computed in accordance with GAAP,
excluding gains (or losses) from extraordinary items or non-recurring gains or
losses (but including gains or losses on sales of Real Estate in the ordinary
course of business, e.g. build to suits), plus depreciation and amortization, plus acquisition expenses required to be expensed
beginning in January 2009, plus asset management fees that are
subordinate to the Obligations (which asset
management fees shall not be increased except as provided in §7.15), and
after adjustments for unconsolidated partnerships and joint ventures.  Adjustments for unconsolidated partnerships
and joint ventures will be recalculated to reflect funds from operations on the
same basis.


 


GAAP.  Principles that are (a) consistent with
the principles promulgated or adopted by the Financial Accounting Standards
Board and its predecessors, as in effect from time to time and (b) consistently
applied with past financial statements of the Person adopting the same
principles; provided that a certified public accountant would, insofar
as the use of such accounting principles is pertinent, be in a position to
deliver an unqualified opinion (other than a qualification regarding changes in
generally accepted accounting principles) as to financial statements in which
such principles have been properly applied.


 


Governmental Authority.  Any
federal, state, county or municipal government, or political subdivision
thereof, any governmental or quasi-governmental agency, authority, board,
bureau, commission, department, instrumentality, or public body, or any court,
administrative tribunal, or public utility.


 


15

















 


Gross
Asset Value.  On a Consolidated
basis for REIT, the Borrower and their respective Subsidiaries, Gross Asset
Value shall mean at any time the sum of (without duplication with respect to
any Real Estate):


 


(i)            with respect to
each Stabilized Property owned by REIT, the Borrower or any of their respective
Subsidiaries for the prior six (6) fiscal quarters (other than 222
Riverside Plaza and, 1325 G Street, the IPC Portfolio and the Beacon Portfolio) (x) the
sum of (A) the Net Operating Income attributable to such Real Estate for
the period of the four (4) consecutive fiscal quarters just ended prior to
the date of determination, minus (B) the Capital Reserve for such
Real Estate for such period, divided by (y) the Capitalization
Rate; plus


 


(ii)           with respect to
Real Estate acquired during the prior six (6) fiscal quarter period (other
than 222 Riverside Plaza and, 1325 G
Street, the IPC Portfolio and the Beacon
Portfolio), the acquisition cost of such Real Estate; plus


 


(iii)          with respect to
Development Properties (including, without
limitation, Three Eldridge Place), the Construction in Progress of such
Development Property until the earlier of (A) the one (1) year
anniversary of project completion of such Real Estate (as evidenced by the
issuance of a temporary or shell certificate of occupancy or similar permit) or
(B) the first day of the first fiscal quarter following the date such Real
Estate achieves a Lease Rate of at least eighty-five percent (85%); plus


 


(iv)          with respect to 222 Riverside
Plaza and, 1325 G Street, the IPC Portfolio and the Beacon Portfolio,
the acquisition cost of such Real Estate; plus


 


(v)           the aggregate amount
of all Unrestricted Cash and Cash Equivalents of REIT, the Borrower and their
respective Subsidiaries as of the date of determination; plus


 


(vi)          the book value determined
in accordance with GAAP of Land Assets of REIT, the Borrower and their
respective Subsidiaries; plus


 


(vii)         the lesser of the
book value or outstanding principal balance of Mortgage Receivables secured by
office properties and the Multifamily Facility.; plus


 


(viii)        Investments
in bonds of Publicly Traded REITs (limited to office, industrial, self-storage,
multi-family or retail Publicly Traded REITs) valued at the lesser of cost or
value per GAAP; plus


 


(ix)          Investments
in preferred or common stock of Publicly Traded REITs (limited to office,
industrial, self-storage, multi-family or retail Publicly Traded REITs) valued
at the lesser of cost or value per GAAP; plus


 


(x)           Investments
in Mezzanine Mortgage Receivables valued at the lesser of cost or value per
GAAP.


 


Gross Asset Value will be
adjusted, as appropriate, for acquisitions, dispositions and other changes to
the portfolio during the calendar quarter most recently ended prior to a date
of 


 


16

















 


determination.  All income, expense and value associated with
assets included in Gross Asset Value disposed of during the four (4) calendar
quarter period most recently ended prior to a date of determination will be
eliminated from calculations.  Gross
Asset Value will be adjusted to include an amount equal to REIT’s or any of its
Subsidiaries’ pro rata share (based upon such Person’s Equity Percentage in
such Unconsolidated Affiliate) of the Gross Asset Value attributable to any of
the items listed above in this definition owned by such Unconsolidated
Affiliate.  Assets which are pledged for
Indebtedness that has been Defeased will be excluded from Gross Asset Value.  Amounts or
assets held by an intermediary in connection with an Investment permitted by §
8.3(s) shall also be excluded from Gross Asset Value.


 


Guaranteed
Pension Plan.  Any
employee pension benefit plan within the meaning of §3(2) of ERISA
maintained or contributed to by REIT or any ERISA Affiliate the benefits of
which are guaranteed on termination in full or in part by the PBGC pursuant to
Title IV of ERISA, other than a Multiemployer Plan.


 


Guarantor.  Collectively, REIT, the Subsidiary Guarantors
and each Additional Guarantor, and individually any one of them.


 


Guarantor Collateral.  See §5.3.


 


Guaranty.  The Unconditional Guaranty of Payment and
Performance dated of even date herewith made by REIT, the Subsidiary Guarantors
and each Additional Guarantor in favor of the Agent and the Lenders, as the
same may be modified, amended or ratified, such Guaranty to be in form and
substance satisfactory to the Agent.


 


Hazardous
Substances.  As defined
in the Indemnity Agreement.


 


Improvements.  The improvements
partially constructed and to be constructed at Three Eldridge Place more
particularly described in the Plans and Specifications (which shall not include
any tenant improvements), any offsite improvements and any existing
improvements at Three Eldridge Place not to be demolished.


 


Increase
Notice.  See §2.112.10(a).


 


Indebtedness.  With respect to a Person, at the time of
computation thereof, all of the following (without duplication): (a) all
obligations of such Person in respect of money borrowed (other than trade debt
incurred in the ordinary course of business which is not more than one hundred
eighty (180) days past due); (b) all obligations of such Person, whether
or not for money borrowed (i) represented by notes payable, or drafts
accepted, in each case representing extensions of credit, (ii) evidenced
by bonds, debentures, notes or similar instruments, or (iii) constituting
purchase money indebtedness, conditional sales contracts, title retention debt
instruments or other similar instruments, upon which interest charges are
customarily paid or that are issued or assumed as full or partial payment for
property or services rendered; (c) obligationobligations of such Person as a lessee or obligor under a Capitalized
Lease; (d) all reimbursement obligations of such Person under any letters
of credit or acceptances (whether or not the same have been presented for
payment); (e) all Off-Balance Sheet Obligations of such Person; (f) all
obligations of such Person in respect of any purchase obligation, repurchase
obligation, takeout commitment or forward equity commitment, in each 


 


17

















 


case
evidenced by a binding agreement (excluding any such obligation to the extent
the obligation can be satisfied by the issuance of Equity Interests), and excluding obligations under agreements for
the purchase of real property not constituting “Indebtedness” under subclause (b) so
long as no suit or proceeding shall be filed or commenced against the Borrower,
any  Guarantor, any Material Subsidiary
or any of their respective assets with respect to any such real property
purchase agreement, which in the good faith business judgment of the Required Lenders,
after giving consideration to the likelihood of success of such suit or
proceeding and the availability of insurance to cover any judgment with respect
thereto, and based on the information available to them, if adversely
determined, would have a Material Adverse Effect); (g) net obligations
under any Derivatives Contract not entered into as a hedge against existing
Indebtedness, in an amount equal to the Derivatives Termination Value thereof; (h) all
Indebtedness of other Persons which such Person has guaranteed or is otherwise
recourse to such Person (except for guaranties of customary exceptions for
fraud, misapplication of funds, environmental indemnities, violation of “special
purpose entity” covenants, and other similar exceptions to recourse liability until
a claim is made with respect thereto, and then shall be included only to the
extent of the amount of such claim ), including liability of a general partner in
respect of liabilities of a partnership in which it is a general partner which
would constitute “Indebtedness” hereunder, any obligation to supply funds to or
in any manner to invest directly or indirectly in a Person, to maintain working
capital or equity capital of a Person or otherwise to maintain net worth,
solvency or other financial condition of a Person, to purchase indebtedness, or
to assure the owner of indebtedness against loss, including, without
limitation, through an agreement to purchase property, securities, goods,
supplies or services for the purpose of enabling the debtor to make payment of
the indebtedness held by such owner or otherwise; (i) all Indebtedness of
another Person secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property
or assets owned by such Person, even though such Person has not assumed or
become liable for the payment of such Indebtedness or other payment obligation;
and (j) such Person’s pro rata share of the Indebtedness (based upon its
Equity Percentage in such Unconsolidated Affiliates) of any Unconsolidated
Affiliate of such Person; provided that Indebtedness that would otherwise meet
one of the requirements above that has been Defeased shall not be deemed
Indebtedness.  “Indebtedness” shall be
adjusted to remove any impact of intangibles pursuant to FAS 141, as issued by
the Financial Accounting Standards Board in June of 2001.


 


Indemnity
Agreement.  The Indemnity
Agreement Regarding Hazardous Materials made by the Borrower and Guarantors, including, without limitation the owners of the
Mortgaged Properties, in favor of the Agent and the Lenders, as the same
may be modified, amended or ratified, pursuant to which the Borrower and each
Guarantor agrees to indemnify the Agent and the Lenders with respect to
Hazardous Substances and Environmental Laws.


 


Initial Mortgaged Properties. 
The Initial Mortgaged Properties shall include, collectively, Three
Eldridge Place, 5104 Eisenhower Boulevard, 5 Wayside, 15 Wayside, Westway One,
One Briarlake Plaza and Centreport Office Center.


 


Initial Term.  The initial term
of the loan beginning on December 11, 2007 and ending on December 11,
2010.


 


18

















 


Insurance Proceeds.  All
insurance proceeds, damages and claims and the right thereto under any
insurance policies relating to any portion of any Collateral, net of all
reasonable and customary amounts actually expended to collect the same,
including, without limitation, reasonable and customary amounts expended in
negotiating, litigating, if appropriate, or investigating the amount of such
insurance, proceeds, damages and claims.


 


Interest
Expense.  On any date of determination, with
respect to REIT, the Borrower and their respective Subsidiaries, without
duplication, (a) interest incurred (in accordance with GAAP) for the period
of four (4) fiscal quarters most recently ended, including capitalized
interest not funded under a construction loan, plus (b) REIT’s, the
Borrower’s and their respective Subsidiaries’ Equity Percentage of Interest
Expense of their Unconsolidated Affiliates for such period.  Interest Expense shall exclude the effect of
any mark to market of assumed debt pursuant to FAS 157 or FAS 141.141 and exclude breakage costs from any interest
rate hedging products.


 


Interest
Payment Date.  As to each
Loan, the first (1st) day of each
calendar month during the term of such Loan.


 


Interest
Period.  With respect to each Revolving Credit LIBOR Rate Loan (a) initially,
the period commencing on the Drawdown Date of such Revolving Credit LIBOR Rate Loan and ending one, two, three or six
months thereafter (provided, however, until the completion of the
syndication of the Loan as determined by Agent, the interest period for any Revolving Credit LIBOR Rate Loan shall be one
month), and (b) thereafter, each period commencing on the day following
the last day of the next preceding Interest Period applicable to such Loan and
ending on the last day of one of the periods set forth above, as selected by
the Borrower in a Loan Request or Conversion/Continuation Request; provided
that all of the foregoing provisions relating to Interest Periods are subject
to the following:


 


(i)            if any Interest
Period with respect to a Revolving Credit LIBOR
Rate Loan would otherwise end on a day that is not a LIBOR Business Day, such
Interest Period shall end on the next succeeding LIBOR Business Day, unless
such next succeeding LIBOR Business Day occurs in the next calendar month, in
which case such Interest Period shall end on the next preceding LIBOR Business
Day, as determined conclusively by the Agent in accordance with the then
current bank practice in London;


 


(ii)           if the Borrower
shall fail to give notice as provided in §4.1, the Borrower shall be deemed to
have requested a continuation of the affected Revolving
Credit LIBOR Rate Loan as a Revolving
Credit Base Rate Loan on the last day of the then current Interest Period
with respect thereto;


 


(iii)          any Interest Period
pertaining to a Revolving Credit LIBOR Rate
Loan that begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of the
applicable calendar month; and


 


19

















 


(iv)          no Interest Period
relating to any LIBOR Rate Loan shall extend beyond the Revolving Credit
Maturity Date or Term Loan Maturity Date, as applicable.Revolving Credit LIBOR Rate Loan shall extend
beyond the Maturity Date.


 


Internalization.  Any transaction
or series of related transactions (including, without limitation, mergers,
consolidations, stock or other ownership interest purchases or modifications of
agreements) whereby (1) either the then current Advisor or the corporate
level property manager of REIT (the “Property Manager”) ceases or reduces the
level of its respective services accompanied by an elimination or a
commensurate reduction of the amount of the fees payable to the Advisor or
Property Manager under then existing arrangements, (2) REIT or any of its
Subsidiaries employs persons previously employed by the Advisor or Property
Manager and (3) REIT or any of its wholly owned Subsidiaries subsequently
is to perform all or some of the duties previously performed by the Advisor or
Property Manager.  In connection with such
transaction or series of transactions the Advisor or Property Manager, or its
direct or indirect owners may (or may not) receive consideration from REIT or
its Subsidiaries.  Notwithstanding the
foregoing, no transaction or series of related transactions shall constitute an
Internalization unless each of the following conditions are satisfied:  (a) Borrower shall give prior written
notice to Agent of any such transaction; (b) a majority of the independent
directors or a committee made up of a majority of the independent directors of
the Board of REIT has approved the transaction, and if required by applicable
law or any applicable agreements, such transaction has been approved by the
requisite shareholders of REIT; (c) Borrower has provided to Agent evidence
reasonably satisfactory to Agent that, after taking account of the likely
financial impact of such transaction, Borrower projects to be in compliance
with the covenants set forth in §9 through the remaining term of the Loan
(including any extension thereof); (d) not less than eighty percent (80%)
of the consideration paid in any such transaction shall be paid in the form of (i) common
or preferred stock of REIT or (ii) unsecured Indebtedness of REIT that is
subordinate in right and time of payment to the Obligations (on terms and
conditions reasonably satisfactory to Agent), or a combination thereof; (e) in
the event that the name of Borrower or any Guarantor is to be changed as a
result of such transaction, Borrower and the Guarantors shall have executed,
delivered, recorded and/or filed such documents (including amendments to
financing statements) as Agent may reasonably require; and (f) Borrower
will promptly give written notice to Agent following completion of any such
transaction, together with copies of such documents, organizational charts and
other items as Agent may reasonably request.


 


Investments.  With respect to any Person, all shares of
capital stock, evidences of Indebtedness and other securities issued by any
other Person and owned by such Person, all loans, advances, or extensions of
credit to, or contributions to the capital of, any other Person, all purchases
of the securities or business or integral part of the business of any other
Person and commitments and options to make such purchases, all interests in
real property, and all other investments; provided, however, that
the term “Investment” shall not include (i) equipment, inventory and other
tangible personal property acquired in the ordinary course of business, or (ii) current
trade and customer accounts receivable for services rendered in the ordinary
course of business and payable in accordance with customary trade terms, or (iii) operating Leases (of real or
personal property) entered into by such Person in the ordinary course of
business as a lessee.  In determining
the aggregate amount of Investments outstanding at any particular time:  (a) there shall be included as an
Investment all interest accrued with respect to Indebtedness constituting an
Investment unless and until such interest is paid; (b) there shall be
deducted in respect of each 


 


20

















 


Investment
any amount received as a return of capital; (c) there shall not be
deducted in respect of any Investment any amounts received as earnings on such
Investment, whether as dividends, interest or otherwise, except that accrued
interest included as provided in the foregoing clause (a) shall be
deducted when paid; and (d) there shall not be deducted in respect of any
Investment any decrease in the value thereof.


 


IPC Portfolio.  The Real Estate
located at 4828, 4848, and 4888 Loop Central Drive, Houston, Texas, 6075 Poplar
Avenue, Memphis, Tennessee, 300 South 4th Street, Las
Vegas, Nevada, 21 East State Street, Columbus, Ohio, 200, 210, 220 Athens Way,
Nashville, Tennessee, 30 South 17th Street,
Philadelphia, Pennsylvania, 900 Elm Street, Manchester, New Hampshire, 301-307
N. Hurstbourne Parkway, Louisville, Kentucky, 9420 Bunsen Parkway, Louisville,
Kentucky, 9200 Shelbyville Road, Louisville, Kentucky, 9300 Shelbyville Road,
Louisville, Kentucky, 101-315 Whittington Parkway, Louisville, Kentucky, 100
Mallard Creek Road, Louisville, Kentucky, 10 Chestnut Street, Worchester,
Massachusetts, 22 Elm Street, Worcester, Massachusetts, 101 Bullitt Lane,
Louisville, Kentucky, 9410 Bunsen Parkway, Louisville, Kentucky, 301 North Main
Street, Wichita, Kansas, 2024 and 1938 North Woodlawn Street, Wichita, Kansas,
One Edgewater Plaza, New York (Staten Island), New York, 123 Tice Boulevard,
Woodcliff Lake, New Jersey, 1100 Poydras Street, New Orleans, Louisiana, 1301
Chestnut Street, Philadelphia, Pennsylvania, 1650 Arch Street, Philadelphia,
Pennsylvania, 800 Superior Avenue East, Cleveland, Ohio, 222 Bloomingdale Road,
White Plains, New York, 100-737 Executive Park, Louisville, Kentucky, 801
Thompson Avenue, Washington, D.C. (Rockville), Maryland, 100 2nd Avenue South,
St. Petersburg, Florida, 500 East Pratt Street, Baltimore, Maryland, 2300 SW
145th Avenue, Miami (Miramar), Florida, and 14700
Caribbean Way, Miami (Miramar), Florida, collectively.


 


IPO
Event.  A public Equity Offering of equity
interests of REIT, the shares of such offering being listed on the New York
Stock Exchange or such other national exchange approved by the Agent, such
approval not to be unreasonably withheld.


 


Issuing
Lender.  KeyBank, in its capacity as
the Lender issuing the Letters of Credit and any successor thereto.


 


Joinder
Agreement.  The Joinder
Agreement with respect to the Guaranty, the Contribution Agreement and the Indemnity
Agreement to be executed and delivered pursuant to §5.25.5 by any Additional Guarantor, such Joinder
Agreement to be substantially in the form of Exhibit D hereto.


 


KeyBank.  As defined in the preamble hereto.


 


Land
Assets.  Land with respect to which the
commencement of grading, construction of improvements (other than improvements
that are not material and are temporary in nature) or infrastructure has not
yet commenced and for which no such work is reasonably scheduled to commence
within the following six (6) months. 
A Land Asset shall cease to be a Land Asset when it becomes a
Development Property.


 


Lease Notice.  See § 7.13.


 


21
















 


Leased
Rate.  With respect to Real Estate at
any time, the ratio, expressed as a percentage, of (a) the Net Rentable
Area of such Real Estate actually leased by tenants that are not affiliated
with the Borrower and paying rent at rates not materially less than rates
generally prevailing at the time the applicable lease was entered into,
pursuant to binding leases as to which no default has occurred and has
continued unremedied for 30 or more days to (b) the aggregate Net Rentable
Area of such Real Estate.


 


Leases.  Leases, licenses and agreements, whether
written or oral, relating to the use or occupation of space in any Building or
of any Real Estate.


 


Lease Summaries.  Summaries or
abstracts of the material terms of the Leases. 
Such Lease Summaries shall be in form and substance reasonably
satisfactory to the Agent.


 


Lenders.  KeyBank, the other lending institutions which
are party hereto and any other Person which becomes an assignee of any rights
of a Lender pursuant to §18 (but not including any participant as described in
§18); and collectively, the Revolving Credit Lenders, the Term Loan Lenders
and, including, without limitation, the
Swing LineLoan Lender.  The Issuing Lender shall be a Revolving
Credit Lender, as applicable.


 


Letter
of Credit.  Any standby
letter of credit issued at the request of the Borrower and for the account of
the Borrower in accordance with §2.10.2.9.


 


Letter
of Credit Liabilities.  At
any time and in respect of any Letter of Credit, the sum of (a) the
maximum undrawn face amount of such Letter of Credit plus (b) the
aggregate unpaid principal amount of all drawings made under such Letter of
Credit which have not been repaid (including repayment by a Revolving Credit
Loan).  For purposes of this Agreement, a
Revolving Credit Lender (other than the Revolving Credit Lender
acting as the Issuing Lender) shall be deemed to hold a Letter of Credit
Liability in an amount equal to its participation interest in the related
Letter of Credit under §2.10,2.9,
and the Revolving Credit Lender acting as the Issuing Lender shall be
deemed to hold a Letter of Credit Liability in an amount equal to its retained
interest in the related Letter of Credit after giving effect to the acquisition
by the Revolving Credit Lenders other than the Revolving Credit Lender
acting as the Issuing Lender of their participation interests under such
Section.


 


Letter
of Credit Request.  See §2.102.9(a).


 


LIBOR.  For any Revolving
Credit LIBOR Rate Loan for any Interest Period, the average rate as shown
in Reuters Screen LIBOR 01 Page at which deposits in U.S. dollars are
offered by first class banks in the London Interbank Market at approximately
11:00 a.m. (London time) on the day that is two (2) LIBOR Business
Days prior to the first day of such Interest Period with a maturity
approximately equal to such Interest Period and in an amount approximately
equal to the amount to which such Interest Period relates, adjusted for
reserves and taxes if required by future regulations.  If such service no longer reports such rate
or Agent determines in good faith that the rate so reported no longer
accurately reflects the rate available to Agent in the London Interbank Market,
Loans shall accrue interest at the Base Rate plus the Applicable Margin for
such Loanfifty (50) basis points (0.5%).  For any period during which a Reserve
Percentage shall apply, LIBOR with respect to Revolving
Credit LIBOR Rate Loans 


 


22

















 


shall
be equal to the amount determined above divided by an amount equal to 1 minus
the Reserve Percentage.


 


LIBOR
Business Day.  Any day on
which commercial banks are open for international business (including dealings
in Dollar deposits) in London, England.


 


LIBOR
Lending Office.  Initially,
the office of each Lender designated as such on Schedule 1.1 hereto;
thereafter, such other office of such Lender, if any, that shall be making or
maintaining Revolving Credit LIBOR Rate
Loans.LIBOR Rate Loans. 
Collectively, the Revolving Credit LIBOR Rate Loans and the Term LIBOR Rate
Loans.


 


Lien.  See §8.2.


 


Loan
Documents.  This
Agreement, the Notes, the Letter of Credit Request, the Security Documents, the
Subordination of Management Fee Agreements and all other documents,
instruments or agreements now or hereafter executed or delivered by or on
behalf of the Borrower or any Guarantor in connection with the Loans.


 


Loan
Request.  See §2.7.2.6.


 


Loan and Loans.  An individual loan or the aggregate loans
(including a Revolving Credit Loan (or Loans), Term Loan (or Loans)   and
a Swing Loan (or Loans)), as the case may be, to be made by the Lenders
hereunder.  All Loans shall be made in
Dollars.  Amounts drawn under a Letter of
Credit shall also be considered Revolving Credit Loans as provided in §2.102.9(a).


 


Majority
Revolving Credit Lenders.  As of any date, any Revolving Credit Lender
or collection of Revolving Credit Lenders whose aggregate Revolving Credit
Commitment Percentage is greater than sixty-six and 7/10 percent (66.7%);
provided that in determining said percentage at any given time, all the
existing Revolving Credit Lenders that are Delinquent Lenders will be
disregarded and excluded and the Revolving Credit Commitment Percentages of the
Revolving Credit Lenders shall be redetermined for voting purposes only to
exclude the Revolving Credit Commitment Percentages of such Delinquent Lenders.


 


Major Tenant.  A tenant of the
Borrower or any Subsidiary Guarantor which leases space in a Mortgaged Property
pursuant to a Lease which entitles it to occupy 25,000 square feet or more.


 


Management Agreements. 
Agreements to which any Person that owns a Mortgaged Property is a party,
whether written or oral, providing for the management of the Mortgaged
Properties or any of them.


 


Material
Adverse Effect.  A material
adverse effect on (a) the business, properties, assets, condition (financial
or otherwise) or results of operations of REIT, the Borrower and their
respective Subsidiaries considered as a whole; (b) the ability of REIT, the
Borrower or any Subsidiary Guarantor to perform any of its material obligations
under the Loan Documents; or (c) the validity or enforceability of any of
the Loan Documents or the creation, perfection and 


 


23

















 


priority
of any Liens of Agent in the Collateral; or (d) or the rights or remedies
of Agent or the Lenders thereunder.


 


Material
Subsidiary.  Any
existing or future Wholly Owned Subsidiary of the Borrower which, at anythe
time of determination, (a) has assets
that constitute five percent (5%) or more of the Gross Asset Value, (b) owns
a Real Estate asset, or (c) any Subsidiary of Borrower which is
required by Agent to grant Collateral pursuant to §5.3.


 


Maturity Date.  December 11,
2010, as such date may be extended as provided in §2.11, or such earlier date
on which the Loans shall become due and payable pursuant to the terms hereof.


 


Mezzanine Mortgage Receivables. 
Mezzanine loans secured by equity interests in Persons owning properties
of the types described in §§8.3(h)(i), (m) or (o), which are being paid on
a current basis and performing in accordance with their terms, and which
Mezzanine Mortgage Receivables include, without limitation, the indebtedness
secured by a related first priority pledge agreement or assignment of
interests.


 


Moody’s.  Moody’s Investor Service, Inc.


 


Mortgaged Property or Mortgaged Properties.  At the time of determination, the Eligible
Real Estate owned by the Borrower or a Subsidiary Guarantor that is security
for the Obligations pursuant to the Mortgages (including, without limitation, as
of the First Amendment Date, the Initial Mortgaged Properties).


 


Mortgage
Receivable.  A mortgage
loan on one or more income-producing properties which is being paid on a
current basis and performing in accordance with its terms, which is
originated by Borrower or a Guarantor, and which Mortgage Receivable
includes, without limitation, the indebtedness evidenced by a note and secured
by a related first mortgage.


 


Mortgages.  The Mortgages, Deeds
to Secure Debt and/or Deeds of Trust from the Borrower or a Subsidiary
Guarantor to the Agent for the benefit of the Lenders (or to trustees named
therein acting on behalf of the Agent for the benefit of the Lenders), as the
same may be modified or amended, pursuant to which the Borrower or a Subsidiary
Guarantor has conveyed or granted a mortgage lien upon or a conveyance in fee
simple of an Initial Mortgaged Property or any other Mortgaged Property, as
security for the Obligations, each such mortgage entered into after the date
hereof to be substantially in the form of Exhibit E for mortgages or Exhibit F
for deeds of trust, each attached hereto, with such changes thereto as Agent
may reasonably require as a result of state law or practice.


 


Multiemployer
Plan.  Any multiemployer plan within
the meaning of §3(37) of ERISA maintained or contributed to by REIT or any
ERISA Affiliate.


 


Multifamily
Facility.  The $100,000,000
(increasable to $400,000,000) revolving credit facility dated April 2,
2007 provided by Borrower to Behringer Harvard Multifamily OP I LP.


 


24

















 


Net
Income (or Loss).  With
respect to any Person (or any asset of any Person) for any period, the net
income (or loss) of such Person (or attributable to such asset), determined in
accordance with GAAP.


 


Net
Offering Proceeds.  The gross
cash proceeds received by the Borrower or any of its Subsidiaries or REIT as a
result of an Equity Offering less the customary and reasonable costs,
expenses and discounts paid by the Borrower or such Subsidiary or REIT in
connection therewith.  Net Offering
Proceeds shall not include cash proceeds received by a Subsidiary as a result
of an investment by a joint venture partner.


 


Net
Operating Income.  For any
Real Estate and for a given period, an amount equal to the sum of (a) the
rents, common area and other tenant reimbursements and other revenue (including
interest income) for such Real Estate for such period received in the ordinary
course of business from tenants in occupancy (excluding pre-paid rents and revenues
and security deposits except to the extent applied in satisfaction of tenants’
obligations for rent) minus (b) all expenses paid or accrued and related
to the ownership, operation or maintenance of such Real Estate for such period,
including, but not limited to, taxes, assessments and the like, insurance,
utilities, payroll costs, maintenance, repair and landscaping expenses,
marketing expenses, and general and administrative expenses (including an
appropriate allocation for legal, accounting, advertising, marketing and other
expenses incurred in connection with such Real Estate, but specifically
excluding general overhead expenses of REIT, the Borrower and their respective
Subsidiaries and any property management fees), minus (c)  the greater of (i) actual
property management expenses of such Real Estate or (ii) an amount equal
to three percent (3.0%) of the gross revenues from such Real Estate.  “Net Operating Income” shall be adjusted to
remove any impact of straight lining of rents and amortization of intangibles
pursuant to FAS 141, as issued by the Financial Accounting Standards Board in June of
2001. 
Notwithstanding anything in this Agreement to the contrary, for the
purposes of calculating the Debt Service Coverage Amount with respect to any Mortgaged
Property that is subject to a Nokia Lease, the following provisions shall apply
during the Extension Term only:  (x) if
the tenant under any Nokia Lease fails to extend the term of the applicable
Nokia Lease on or before December 11, 2010, or if having properly
exercised such extension option the tenant thereafter withdraws such extension
or such extension is otherwise no longer effective, then from and after the
occurrence of any such event (but subject to the following clause (y)) any Net
Operating Income attributable to such Nokia Lease for any periods after the
occurrence of such event shall be excluded from the calculation of Net
Operating Income for such Mortgaged Property; and (y) in the event that
any of the events described in clause (x) above shall have occurred and
thereafter either (i) the tenant under the applicable Nokia Lease
irrevocably extends the applicable Nokia Lease, (ii) the applicable owner
of such Mortgaged Property enters into a new Lease for all or a portion of the
premises leased under such Nokia Lease in accordance with the terms of the Loan
Documents or (iii) the owner of Three Eldridge Place enters into a Lease
for all or any portion of Three Eldridge Place in accordance with the terms of
the Loan Documents (which Lease has not yet commenced payment, but would first
commence payment upon or following the expiration of the applicable Nokia
Lease), then any Net Operating Income attributable to such Nokia Lease that has
been excluded from the calculation of Net Operating Income for such Mortgaged
Property may be included in such calculation to the extent otherwise consistent
with the definition of Net Operating Income (provided that if the Net Operating
Income attributable to a new lease, whether for the Mortgaged Property subject
to the Nokia Lease or Three Eldridge Place, is less 


 


25

















 


then the Net Operating
Income attributable to the applicable Nokia Lease, then Net Operating Income
from such Nokia Lease may only be included, on a dollar for dollar basis, in an
amount equal to the Net Operating Income attributable to such new Lease).


 


Net
Rentable Area.  With
respect to any Real Estate, the floor area of any buildings, structures or
other improvements available for leasing to tenants determined in accordance
with the Rent Roll for such Real Estate, the manner of such determination to be
reasonably consistent for all Real Estate of the same type unless otherwise
approved by the Agent.


 


Nokia Leases.  Individually or
collectively, as the context may permit, (i) that certain Lease between
Arthur J. Gutierrez and John A. Cataldo, as Trustees of Wayside Land Realty
Trust, U/D/T Dated January 15, 1998 and recorded with the Middlesex South
Registry of Deeds in Book 28165, page 175 (“Wayside Realty Trust”), as
landlord, and Nokia Networks, Inc., as successor to Nokia
Telecommunications Inc., a Delaware corporation, as tenant, dated as of January 27,
1999, as amended by that certain First Amendment to Lease dated as of May 1,
2000, as amended by that certain Second Amendment to Lease dated October 3,
2000, as amended by that certain Third Amendment to Lease dated as of January 31,
2001, and as amended by that certain Fourth Amendment to Lease dated as of March 31,
2003, and as assigned by Wayside Realty Trust to Behringer Harvard Wayside,
LLC, a Delaware limited liability company, as landlord, pursuant to that
certain Assignment and Assumption Agreement dated December 8, 2006, as the
same may be further modified or amended, and (ii) that certain Lease
between Arthur J. Gutierrez and John A. Cataldo, as Trustees of Wayside Realty
Trust II, U/D/T dated March 23, 1999 and recorded with the Middlesex South
Registry of Deeds in Book 29968, page 199 (“Wayside Realty Trust II”), as
landlord, and Nokia Internet Communications Inc., a Delaware corporation, as
tenant, dated as of September 15, 2000, as amended by that certain First
Amendment to Lease dated January 31, 2001, as amended by that certain
Second Amendment to Lease dated November 14, 2001, and as amended by that
certain Third Amendment to Lease dated March 31, 2003, and as assigned by
Wayside Realty Trust II to Behringer Harvard Wayside, LLC, a Delaware limited
liability company, as landlord, pursuant to that certain Assignment and
Assumption Agreement dated December 8, 2006, as the same may be further
modified or amended.


 


Non-Recourse
Exclusions.  With
respect to any Non-Recourse Indebtedness of any Person, any usual and customary
exclusions from the non-recourse limitations governing such Indebtedness,
including, without limitation, exclusions for claims that (i) are based on
fraud, intentional or material misrepresentation, misapplication of funds,
gross negligence or willful misconduct, (ii) result from intentional
mismanagement of or waste at the Real Property securing such Non-Recourse
Indebtedness, (iii) arise from the presence of Hazardous Substances on the
Real Property securing such Non-Recourse Indebtedness; (iv) are the result
of any unpaid real estate taxes and assessments (whether contained in a loan
agreement, promissory note, indemnity agreement or other document); or (v) result
from the borrowing Subsidiary and/or its assets becoming the subject of a
voluntary or involuntary bankruptcy, insolvency or similar proceeding.


 


Non-Recourse
Indebtedness.  With
respect to a Person, (a) Indebtedness in respect of which recourse for
payment (except for Non-Recourse Exclusions until a claim is made with 


 


26

















 


respect
thereto, and then such Indebtedness shall not constitute Non-Recourse
Indebtedness only to the extent of the amount of such claim) is contractually
limited to specific assets of such Person encumbered by a Lien securing such
Indebtedness or (b) if such Person is a Single Asset Entity, any
Indebtedness of such Person.  A loan
secured by multiple properties owned by Single Asset Entities shall be
considered Non-Recourse Indebtedness of such Single Asset Entities even if such
Indebtedness is cross-defaulted and cross-collateralized with the loans to such
other Single Asset Entities.


 


Notes.  Collectively, the Revolving Credit Notes, the
Term Loan Notes and the Swing Loan Note.


 


Notice.  See §19.


 


Obligations.  All indebtedness, obligations and liabilities
of the Borrower or any Guarantor to any of the Lenders or the Agent,
individually or collectively, under this Agreement or any of the other Loan
Documents or in respect of any of the Loans, the Notes or the Letters of
Credit, or other instruments at any time evidencing any of the foregoing,
whether existing on the date of this Agreement or arising or incurred
hereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise.


 


OFAC.  Office of Foreign Asset Control of the
Department of the Treasury of the United States of America.


 


Off-Balance
Sheet Obligations. Liabilities and obligations of REIT, the Borrower
or any of their respective Subsidiaries or any other Person in respect of “off-balance
sheet arrangements” (as defined in the SEC Off-Balance Sheet Rules) which REIT
would be required to disclose in the “Management’s Discussion and Analysis of
Financial Condition and Results of Operations” section of REIT’s report on Form 10-Q
or Form 10-K (or their equivalents) which REIT is required to file with
the SEC or would be required to file if it were subject to the jurisdiction of
the SEC (or any Governmental Authority substituted thereforetherefor). 
As used in this definition, the term “SEC Off-Balance Sheet Rules” means
the Disclosure in Management’s Discussion and Analysis About Off-Balance Sheet
Arrangements, Securities Act Release No. 33—8182, 68 Fed. Reg. 5982 (Feb. 5,
2003) (codified at 17 CFR pts. 228, 229 and 249).


 


One Briarlake Plaza.  The Real
Estate located at 2000 W. Sam Houston Parkway South, Houston, Texas.


 


Outstanding.  With respect to the Loans, the aggregate
unpaid principal thereof as of any date of determination.  With respect to Letters of Credit, the
aggregate undrawn face amount of issued Letters of Credit.


 


Patriot
Act.  The Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, as the same may be amended from time to time, and
corresponding provisions of future laws.


 


27

















 


PBGC.  The Pension Benefit Guaranty Corporation
created by §4002 of ERISA and any successor entity or entities having similar
responsibilities.


 


Permitted
Liens.  Liens, security interests and
other encumbrances permitted by §8.2.


 


Person.  Any individual, corporation, limited
liability company, partnership, trust, unincorporated association, business, or
other legal entity, and any government or any governmental agency or political
subdivision thereof.


 


Plan
Assets.  Assets of any employee benefit
plan subject to Part 4, Subtitle B, Title I of ERISA.


 


Plans and Specifications: 
Detailed plans and specifications for the Improvements, as delivered or
made available to the Agent prior to the First Amendment Date, as modified
hereafter with Agent’s prior written approval or as otherwise expressly
permitted by this Agreement.


 


Pledge
Agreement.  The Pledge
Agreement dated of even date herewith made by Borrower in favor of Agent for
the benefit of the Lenders, as the same may be
amended, restated, supplemented or otherwise modified in accordance with the
terms hereof.


 


Pledge
of Distributions.  The Pledge
of Distributions dated as of even date herewith by which the Pledgors will
collaterally assign to Agent the Distribution Interests from all of the
partnership, shareholder and/or membership interests owned by such Persons in
the Companies, as the same may be amended, restated, supplemented or otherwise
modified in accordance with the terms hereof.


 


Pledgors.  Collectively, the Borrower and each
Additional Pledgor, and individually any one of them.


 


Potential Collateral.  Any
property of the Borrower or a Subsidiary Guarantor which is not at the time
included in the Collateral and which consists of (i) Eligible Real Estate,
or (ii) Real Estate which is capable of becoming Eligible Real Estate
through the approval of the Required Lenders and the completion and delivery of
Eligible Real Estate Qualification Documents.


 


Preferred
Distributions.  For any
period and without duplication, all Distributions paid, declared but not yet
paid or otherwise due and payable during such period on Preferred Securities
issued by the Borrower or any of its Subsidiaries or REIT.  Preferred Distributions shall not include
dividends or distributions: (a) paid or payable solely in Equity Interests
of identical class payable to holders of such class of Equity Interests; (b) paid
or payable to the Borrower or any of its Subsidiaries; or (c) constituting
or resulting in the redemption of Preferred Securities, other than scheduled
redemptions not constituting balloon, bullet or similar redemptions in full.


 


28

















 


Preferred
Securities.  With
respect to any Person, Equity Interests in such Person, which are entitled to
preference or priority over any other Equity Interest in such Person in respect
of the payment of dividends or distribution of assets upon liquidation, or both.


 


Prepayment
Period.  The period
from the date of this Agreement through and including December 11, 2008.


 


Pricing
Level.  Such term
shall have the meaning established within the definition of Applicable Margin.


 


Publicly Traded REIT.  A real
estate investment trust that complies with all requirements and applicable laws
and regulations necessary to maintain REIT Status and continues to receive REIT
Status, and whose common stock is listed for trading and traded on the New York
Stock Exchange or another national stock exchange approved by Agent.


 


Real
Estate.  All real property at any, including, without limitation, the Mortgaged
Properties, at the time of determination
then owned or leased (as lessee or sublessee) in whole or in part or
operated by REIT, the Borrower or any of their respective Subsidiaries, or an
Unconsolidated Affiliate of the Borrower and which is located in the United
States of America or the District of Columbia.


 


Record.  The grid attached to any Note, or the
continuation of such grid, or any other similar record, including computer
records, maintained by the Agent with respect to any Loan referred to in such
Note.


 


Recourse
Indebtedness.  As of any
date of determination, any Indebtedness (whether secured or unsecured) which is
recourse to REIT, the Borrower or any of their respective Subsidiaries.  Recourse Indebtedness shall not include Non-Recourse
Indebtedness.


 


Register.  See §18.2.


 


REIT.  Behringer Harvard REIT I, Inc., a
Maryland corporation.


 


REIT
Status.  With respect to a Person, its
status as a real estate investment trust as defined in §856(a) of the
Code.


 


Release.  Any releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, disposing or
dumping (other than the storing of materials in reasonable quantities to the
extent necessary for the operation of property in the ordinary course of
business, and in any event in compliance with all Environmental Laws) of
Hazardous Substances.


 


Rent
Roll.  A report prepared by the Borrower
showing for all Real Estate, including, without
limitation, each Mortgaged Property, owned or leased by the Borrower or its
Subsidiaries, its occupancy, lease expiration dates, lease rent and other
information in substantially the form presented to Agent prior to the date
hereof or in such other form as may be reasonably acceptable to the Agent.


 


29

















 


Required
Lenders.  As of any date, the Lender or
Lenders whose aggregate Commitment Percentage is equal to or greater than
sixty-six and 7/10 percent (66.7%) of the Total Commitment; provided that in
determining said percentage at any given time, all then existing Delinquent
Lenders will be disregarded and excluded and the Commitment Percentages of the
Lenders shall be redetermined for voting purposes only to exclude the
Commitment Percentages of such Delinquent Lenders.


 


Reserve
Percentage.  For any
Interest Period, that percentage which is specified three (3) Business
Days before the first day of such Interest Period by the Board of Governors of
the Federal Reserve System (or any successor) or any other governmental or
quasi-governmental authorityGovernmental Authority
with jurisdiction over Agent or any Lender for determining the maximum reserve
requirement (including, but not limited to, any marginal reserve requirement)
for Agent or any Lender with respect to liabilities constituting of or
including (among other liabilities) Eurocurrency liabilities in an amount equal
to that portion of the Loan affected by such Interest Period and with a
maturity equal to such Interest Period.


 


Revolving
Credit Base Rate Loans. 
Revolving Credit Loans bearing interest calculated by reference to the
Base Rate, including, without limitation, the
Swing Loans.


 


Revolving
Credit Commitment.  With
respect to each Revolving Credit Lender, the amount set forth on Schedule 1.1
hereto as the amount of such Revolving Credit Lender’s Revolving Credit Commitment
to make or maintain Revolving Credit Loans (other than Swing Loans) to the
Borrower, to participate in Letters of Credit for the account of the Borrower
and to participate in Swing Loans to the Borrower, as the same may be changed
from time to time in accordance with the terms of this Agreement.


 


Revolving
Credit Commitment Percentage.  With respect to each Revolving Credit Lender,
the percentage set forth on Schedule 1.1 hereto as such Revolving Credit
Lender’s percentage of the Total Revolving Credit Commitment, as the same may
be changed from time to time in accordance with the terms of this Agreement;
provided that if the Revolving Credit Commitments of the Revolving Credit
Lenders have been terminated as provided in this Agreement, then the Revolving
Credit Commitment of each Revolving Credit Lender shall be determined based on
the Revolving Credit Commitment Percentage of such Revolving Credit Lender
immediately prior to such termination and after giving effect to any subsequent
assignments made pursuant to the terms hereof.


 


Revolving
Credit Extension Request.  See
§2.12.2.11.


 


Revolving
Credit Lenders. 
Collectively, the Lenders which have a Revolving Credit Commitment, the
initial Revolving Credit Lenders being identified on Schedule 1.1
hereto.


 


Revolving
Credit LIBOR Rate Loans. 
Revolving Credit Loans bearing interest calculated by reference to
LIBOR.


 


Revolving
Credit Loan or Loans.  An
individual Revolving Credit Loan or the aggregate Revolving Credit Loans, as
the case may be, in the maximum principal amount of $300,000,000.00193,000,000.00 (subject to increase as provided
in §2.112.10) to be made by the 


 


30

















 


Revolving
Credit Lenders hereunder as more particularly described in §2.  Without limiting the foregoing, Revolving Credit
Loans shall also include Revolving Credit Loans made pursuant to §2.102.9(f).


 


Revolving
Credit Maturity Date.  December 11, 2010, as such date may be
extended as provided in §2.12, or such earlier date on which the Revolving Credit
Loans shall become due and payable pursuant to the terms hereof.


 


Revolving
Credit Notes.  See §2.1(b).


 


SEC.  The federal Securities and Exchange
Commission.


 


Secured
Debt.  With respect to REIT, the Borrower
or any of their respective Subsidiaries as of any given date, the aggregate
principal amount of all Indebtedness of such Persons on a Consolidated basis
outstanding at such date and that is secured in any manner by any Lien.


 


Security
Documents. 
Collectively, the Acknowledgements, the Joinder Agreements, the Pledge
Agreement, the Pledge of Distributions, the
Mortgages, the Assignments of Leases and Rents, the Indemnity Agreement, the
Guaranty, the UCC-1 financing statements and
any further collateral assignments to the Agent for the benefit of the Lenders.


 


Single
Asset Entity.  A
bankruptcy remote, single purpose entity which is a Subsidiary of the Borrower
and which is not a Subsidiary Guarantor which owns real property and related
assets which are security for Indebtedness of such entity, and which
Indebtedness does not constitute Indebtedness of any other Person except as
provided in the definition of Non-Recourse Indebtedness (except for Non-Recourse
Exclusions).


 


S&P.  Standard & Poor’s Ratings Group.


 


Stabilized
Property.  A completed
project that has achieved a Leased Rate of at least eighty-five percent (85%)
for a period of not less than thirty (30) consecutive days, provided that a
Development Property on which all improvements related to the development of
such Real Estate have been substantially completed (excluding tenants
improvements) for at least twelve (12) months shall constitute a Stabilized Property.  Once a project becomes a Stabilized Property
under this Agreement, it shall remain a Stabilized Property.


 


State.  A state of the United States of America and
the District of Columbia.


 


Subordination
of Advisory Agreement.  The Subordination
of Advisory Agreement dated as of the date hereof and entered into between
REIT, the Advisor and Behringer Harvard Real Estate Services, LLC, a Texas
limited liability company evidencing the subordination of the advisory fees
payable by REIT pursuant to the Advisory Agreement to the Obligations, as the
same may be amended, restated, supplemented or otherwise modified in accordance
with the terms hereof.


 


Subordination, Attornment and Non-Disturbance Agreement.  An agreement among the Agent, the Borrower or
a Subsidiary Guarantor and a tenant under a Lease pursuant to 


 


31

















 


which such tenant agrees to
subordinate its rights under the Lease to the applicable Mortgage and agrees to
recognize the Agent or its successor in interest as landlord under the Lease in
the event of a foreclosure under such Mortgage, and the Agent agrees to not
disturb the possession of such tenant, such agreement to be in form and
substance reasonably satisfactory to Agent.


 


Subsidiary.  For any Person, any corporation, partnership,
limited liability company or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership, limited
liability company or other entity (without regard to the occurrence of any
contingency) is at the time directly or indirectly owned or controlled by such
Person or one or more Subsidiaries of such Person or by such Person and one or
more Subsidiaries of such Person, and shall include all Persons the accounts of
which are consolidated with those of such Person pursuant to GAAP.


 


Subsidiary
Guarantors.  Initially,
those Persons described on Schedule 1.2 hereto and each Additional
Guarantor, including, without limitation, any Subsidiary
of Borrower that is the direct or indirect owner of a Mortgaged Property.  Upon any Additional Guarantor becoming a
Subsidiary Guarantor or upon the release of a Subsidiary Guarantor in
accordance with the terms of this Agreement, Agent may unilaterally amend Schedule
1.2.


 


Survey.  An instrument survey of
each parcel of Mortgaged Property prepared by a registered land surveyor which
shall show the location of all buildings, structures, easements and utility
lines on such property, shall be sufficient to remove the standard survey
exception from the Title Policy, shall show that all buildings and structures
are within the lot lines of the Mortgaged Property and shall not show any
encroachments by others (or to the extent any encroachments are shown, such
encroachments shall be acceptable to the Agent in its reasonable discretion),
shall show rights of way, adjoining sites, establish building lines and street
lines, the distance to and names of the nearest intersecting streets and such
other details as the Agent may reasonably require; and shall show whether or
not the Mortgaged Property is located in a flood hazard district as established
by the Federal Emergency Management Agency or any successor agency or is
located in any flood plain, flood hazard or wetland protection district
established under federal, state or local law and shall otherwise be in form
and substance reasonably satisfactory to the Agent.


 


Surveyor Certification.  With
respect to each parcel of Mortgaged Property, a certificate executed by the
surveyor who prepared the Survey with respect thereto, dated as of a recent
date prior to inclusion of such Mortgaged Property in the Borrowing Base and
containing such information relating to such parcel as the Agent or the Title
Insurance Company may reasonably require, such certificate to be reasonably
satisfactory to the Agent in form and substance.


 


Swing
Loan.  See §2.52.4(a).


 


Swing Loan Commitment.  The sum
of $25,000,000.00, as the same may be changed from time to time in accordance
with the terms of this Agreement.


 


32
















 


Swing
Loan Lender.  KeyBank, in
its capacity as Swing Loan Lender and any successor thereof.


 


Swing
Loan Commitment.  The
sum of $50,000,000.00, as the same may be changed from time to time in
accordance with the terms of this Agreement.


 


Swing
Loan Note.  See §2.5(b).2.4(b).


 


Taking.  The taking or
appropriation (including by deed in lieu of condemnation) of any Mortgaged
Property, or any part thereof or interest therein, whether permanently or
temporarily, for public or quasi-public use under the power of eminent domain,
by reason of any public improvement or condemnation proceeding, or in any other
manner or any damage or injury or diminution in value through condemnation,
inverse condemnation or other exercise of the power of eminent domain.


 


Tenant
In Common Asset.  Real Estate
jointly owned by more than one Person, the ownership of which is in the form of
undivided interests as tenants in common in such Real Estate, other than Real
Estate wholly owned by REIT, the Borrower and any of their respective Subsidiaries
individually or collectively as tenants in common.


 


Term
Base Rate Loans.  The
Term Loans bearing interest by reference to the Base Rate.


 


Term
LIBOR Rate Loans.  The
Term Loans bearing interest by reference to LIBOR.


 


Term
Loan or Term Loans.  An
individual Term Loan or the aggregate Term Loans, as the case may be, in the
maximum principal amount of $200,000,000.00 made by the Term Loan Lenders
hereunder.


 


Term
Loan Commitment.  As
to each Term Loan Lender, the amount equal to such Term Loan Lender’s Term Loan
Commitment Percentage of the aggregate principal amount of the Term Loans from
time to time outstanding to the Borrower.


 


Term
Loan Commitment Percentage.  With respect to each Term Loan Lender, the
percentage set forth on Schedule 1.1 hereto as such Term Loan Lender’s
percentage of the aggregate Term Loan to the Borrower, as the same may be
changed from time to time in accordance with the terms of this Agreement.


 


Term
Loan Extension Request.  See §2.13(a).


 


Term
Loan Lenders.  Collectively,
the Lenders which have a Term Loan Commitment, the initial Term Loan Lenders
being identified on Schedule 1.1 hereto.


 


Term
Loan Maturity Date.  December 11,
2010, as such date may be extended as provided in §2.13, or such earlier date
on which the Term Loans shall become due and payable pursuant to the terms
hereof.


 


33

















 


Term
Loan Note.  A promissory
note made by the Borrower in favor of a Term Loan Lender in the principal face
amount equal to such Term Loan Lender’s Term Loan Commitment, in substantially
the form of Exhibit C hereto.


 


Three Eldridge Place.  The Real
Estate located at 737 Eldridge Parkway, Houston, Texas.


 


Three Eldridge Place Owner. 
Behringer Harvard Eldridge Land LP, a Texas limited partnership, and its
successors and assigns.


 


Titled
Agents.  The Arranger, and any
co-syndication agents or documentation agent.


 


Title Insurance Company.  Chicago
Title Company and/or any other title insurance company or companies approved by
the Agent and the Borrower.


 


Title Policy.  With respect to
each parcel of Mortgaged Property, an ALTA standard form title insurance policy
(or, if such form is not available, an equivalent, legally promulgated form of
mortgagee title insurance policy reasonably acceptable to the Agent) issued by
a Title Insurance Company (with such reinsurance as the Agent may reasonably
require, any such reinsurance to be with direct access endorsements to the
extent available under applicable law) in an amount as the Agent may reasonably
require based upon the fair market value of the applicable Mortgaged Property
insuring the priority of the Mortgage thereon and that the Borrower or a
Subsidiary Guarantor, as applicable, holds marketable or indefeasible (with
respect to Texas) fee simple title to such parcel, subject only to the
encumbrances acceptable to Agent in its reasonable discretion and which shall
not contain standard exceptions for mechanics liens, persons in occupancy
(other than tenants as tenants only under Leases) or matters which would be
shown by a survey, shall not insure over any matter except to the extent that
any such affirmative insurance is acceptable to the Agent in its reasonable
discretion, and shall contain (a) a revolving credit endorsement and (b) such
other endorsements and affirmative insurance as the Agent may reasonably
require and is available in the State in which the Mortgaged Property is
located, including but not limited to (i) a comprehensive endorsement, (ii) a
variable rate of interest endorsement, (iii) a usury endorsement, (iv) a
doing business endorsement, (v) an ALTA form 3.1 zoning endorsement, (vi) a
“tie-in” endorsement relating to all Title Policies issued by such Title
Insurance Company in respect of other Mortgaged Property, (vii) “first
loss” and “last dollar” endorsements, and (viii) a utility location
endorsement.


 


Total
Commitment.  The sum of
the Commitments of the Lenders, as in effect from time to time.  As of the date of this Agreement, the Total
Commitment is Five Hundred Million and No/100 Dollars ($500,000,000.00).  The Total Commitment may increase in
accordance with §2.11.Total Revolving Credit Commitment.  The sum of the Revolving Credit Commitments
of the Revolving Credit Lenders, as in effect from time to time.  As of the date of this Agreement, the Total
Revolving Credit Commitment is Three HundredOne
Hundred Ninety-Three Million and No/100 Dollars ($300,000,000.00193,000,000.00).  The Total Revolving Credit Commitment
may increase in accordance with §2.11.2.10.


 


34

















 


Type.  As to any Loan, its nature as a Revolving Credit Base Rate Loan or a Revolving Credit LIBOR Rate Loan.


 


Unconsolidated
Affiliate.  In respect
of any Person, any other Person in whom such Person holds an Investment, (a) which
Investment is accounted for in the financial statements of such Person on an
equity basis of accounting and whose financial results would not be
consolidated under GAAP with the financial results of such first Person on the
consolidated financial statements of such first Person, or (b) which is
not a Subsidiary of such first Person.


 


Unhedged
Variable Rate Debt.  Any
Indebtedness with respect to which the interest is not fixed (or hedged to a
fixed rate) for the entire term of such Indebtedness to maturity.


 


Unrestricted
Cash and Cash Equivalents.  As
of any date of determination, the sum of (a) the aggregate amount of
Unrestricted cash and (b) the aggregate amount of Unrestricted Cash
Equivalents (valued at fair market value). 
As used in this definition, “Unrestricted” means the specified asset is readily
available for the satisfaction of any and all obligations of such Person.


 


Unsecured
Debt.  Indebtedness of REIT, the
Borrower and their respective Subsidiaries outstanding at any time which is not
Secured Indebtedness.


 


Westway One.  The Real Estate
located at 11210 Equity Drive, Houston, Texas.


 


Wholly
Owned Subsidiary.  As to the Borrower,
any Subsidiary of Borrower that is directly or indirectly owned 100% by the
Borrower.


 


§1.2         Rules of
Interpretation.


 


(a)           A reference to any
document or agreement shall include such document or agreement as amended,
modified or supplemented from time to time in accordance with its terms and the
terms of this Agreement.


 


(b)           The singular
includes the plural and the plural includes the singular.


 


(c)           A reference to any
law includes any amendment or modification of such law.


 


(d)           A reference to any
Person includes its permitted successors and permitted assigns.


 


(e)           Accounting terms not
otherwise defined herein have the meanings assigned to them by GAAP applied on
a consistent basis by the accounting entity to which they refer.


 


(f)            The words “include”,
“includes” and “including” are not limiting.


 


35

















 


(g)           The words “approval”
and “approved”, as the context requires, means an approval in writing given to
the party seeking approval after full and fair disclosure to the party giving
approval of all material facts necessary in order to determine whether approval
should be granted.


 


(h)           All terms not
specifically defined herein or by GAAP, which terms are defined in the Uniform
Commercial Code as in effect in the State of New York, have the meanings
assigned to them therein.


 


(i)            Reference to a
particular “§”, refers to that section of this Agreement unless otherwise
indicated.


 


(j)            The words “herein”,
“hereof”, “hereunder” and words of like import shall refer to this Agreement as
a whole and not to any particular section or subdivision of this Agreement.


 


(k)           In the event of any
change in GAAP after the date hereof or any other change in accounting
procedures pursuant to §7.3 which would affect the computation of any financial
covenant, ratio or other requirement set forth in any Loan Document, then upon
the request of the Borrower or Agent, the Borrower, the Guarantors, the Agent
and the Lenders shall negotiate promptly, diligently and in good faith in order
to amend the provisions of the Loan Documents such that such financial
covenant, ratio or other requirement shall continue to provide substantially
the same financial tests or restrictions of the Borrower and the Guarantors as
in effect prior to such accounting change, as determined by the Required
Lenders in their good faith judgment. 
Until such time as such amendment shall have been executed and delivered
by the Borrower, the Guarantors, the Agent and the Required Lenders, such
financial covenants, ratio and other requirements, and all financial statements
and other documents required to be delivered under the Loan Documents, shall be
calculated and reported as if such change had not occurred.


 


(l)            Notwithstanding
anything to the contrary in this Agreement, except for the purposes of the
financial statements required to be delivered under §§7.4(a) and (b),
wherever a reference is made in this Agreement to a matter being Consolidated
in accordance with GAAP or a similar phrase, in lieu of being Consolidated in
accordance with GAAP such matter (including any requirement that a calculation
of any limitation or covenant be made in accordance with GAAP) shall be presented
or calculated, as applicable, based on the pro rata share of the ownership
interests of any Person held by REIT, the Borrower and their respective
Subsidiaries, such pro rata share of such ownership interests to be based on
the right of REIT, the Borrower and their respective Subsidiaries, as
applicable, to receive cash flow and other distributions, as reasonably approved
by the Agent.


 


§2.           THE CREDIT FACILITY.


 


§2.1         Revolving Credit
Loans.


 


(a)           Subject to the terms
and conditions set forth in this Agreement, each of the Revolving Credit Lenders
severally agrees to lend to the Borrower, and the Borrower may borrow (and
repay and reborrow) from time to time between the Closing Date and the Revolving



 


36

















 


Credit
Maturity Date upon notice by the Borrower to the Agent given in
accordance with §2.7,2.6, such sums
as are requested by the Borrower for the purposes set forth in §2.92.8 up to a maximum aggregate principal amount
outstanding (after giving effect to all amounts requested) at any one time
equal to the lesser of (i) such Revolving Credit Lender’s Revolving
Credit Commitment and (ii) such Revolving Credit Lender’s Revolving
CreditLender’s Commitment Percentage of
the sum of (A) the Borrowing Base
Availability minus (B) the sum of (1) the amount of all
outstanding Revolving Credit Loans and Swing Loans, and (2) the aggregate
amount of Letter of Credit Liabilities; provided, that, in all events no
Default or Event of Default shall have occurred and be continuing; and provided,
further, that the outstanding principal amount of the Revolving Credit
Loans (after giving effect to all amounts requested), Swing Loans and Letter of
Credit Liabilities shall not at any time exceed the Total Revolving Credit Commitment
and the outstanding principal amount of the Revolving Credit Loans (after
giving effect to all amounts requested), Swing Loans, Term Loans and
Letter of Credit Liabilities shall not at any time exceed the Total Commitment. or cause a violation of the covenant set forth in
§9.1.  The Revolving Credit Loans
shall be made pro  rata in accordance with each Revolving
Credit Lender’s Revolving Credit Commitment Percentage.  Each request for a Revolving Credit Loan
hereunder shall constitute a representation and warranty by the Borrower that
all of the conditions required of the Borrower set forth in §10 and §11 have
been satisfied on the date of such request. 
The Agent may assume that the conditions in §10 and §11 have been
satisfied unless it receives prior written notice from a Revolving Credit Lender
that such conditions have not been satisfied. 
No Revolving Credit Lender shall have any obligation to make
Revolving Credit Loans to the Borrower in the maximum aggregate principal
outstanding balance of more than the principal face amount of its Revolving
Credit Note.


 


(b)           The Revolving Credit
Loans shall be evidenced by separate promissory notes of the Borrower in
substantially the form of Exhibit A hereto (collectively, the “Revolving
Credit Notes”), dated of even date with this Agreement (except as otherwise
provided in §18.3) and completed with appropriate insertions.  One Revolving Credit Note shall be payable to
the order of each Revolving Credit Lender in the principal amount equal
to such Revolving Credit Lender’s Revolving Credit Commitment or,
if less, the outstanding amount of all Revolving Credit Loans made by such Revolving
Credit Lender, plus interest accrued thereon, as set forth below.  The Borrower irrevocably authorizes Agent to
make or cause to be made, at or about the time of the Drawdown Date of any
Revolving Credit Loan or the time of receipt of any payment of principal
thereof, an appropriate notation on Agent’s Record reflecting the making of
such Revolving Credit Loan or (as the case may be) the receipt of such
payment.  The outstanding amount of the
Revolving Credit Loans set forth on Agent’s Record shall be prima  facie
evidence of the principal amount thereof owing and unpaid to each Revolving
Credit Lender, but the failure to record, or any error in so recording, any
such amount on Agent’s Record shall not limit or otherwise affect the
obligations of the Borrower hereunder or under any Revolving Credit Note to
make payments of principal of or interest on any Revolving Credit Note when
due.


 


§Commitment to
Lend Term Loan.  Subject to the terms
and conditions set forth in this Agreement, each of the Term Loan Lenders severally
agrees to lend to the Borrower on the Closing Date such Term Loan Lender’s Term
Loan Commitment, which Term Loans shall be evidenced by the Term Loan Notes.


 


37

















 


§2.2         Facility Unused Fee.  The Borrower agrees to pay to the Agent for
the account of the Revolving Credit Lenders in accordance with their
respective Revolving Credit Commitment Percentages a facility unused fee
calculated in accordance with §4.4 at the rate per annum as set forth below on
the average daily amount by which the Total Revolving Credit Commitment
exceeds the outstanding principal amount of Revolving Credit Loans, Swing Loans
and the face amount of Letters of Credit Outstanding during each calendar
quarter or portion thereof commencing on the date hereof and ending on the Revolving
Credit Maturity Date.  The facility
unused fee shall be calculated for each day based on the ratio (expressed as a
percentage) of (a) the average daily amount of the outstanding principal
amount of the Revolving Credit Loans and Swing Loans and the face amount of Letters
of Credit Outstanding during such quarter to (b) the Total Revolving
Credit Commitment, and if such ratio is less than or equal to fifty percent
(50%), the facility unused fee shall be payable at the rate of 0.20%, and if
such ratio is greater than fifty percent (50%), the facility unused fee shall
be payable at the rate of 0.15%.  The
facility unused fee shall be payable quarterly in arrears on the first (1st) day of each calendar quarter for the immediately
preceding calendar quarter or portion thereof, and on any earlier date on which
the Revolving Credit Commitments shall be reduced or shall terminate as
provided in §2.4,2.3, with a final
payment on the Revolving Credit Maturity Date.


 


§2.3         Reduction and Termination of the Revolving
Credit Commitments.  The Borrower
shall have the right at any time and from time to time upon five (5) Business
Days’ prior written notice to the Agent to reduce by $5,000,000.00 or an
integral multiple of $1,000,000.00 in excess thereof (provided that in
no event shall the Total Revolving Credit Commitment be reduced in such
manner to an amount less than $100,000,000.00) or to terminate entirely the Revolving
Credit Commitments, whereupon the Revolving Credit Commitments of
the Revolving Credit Lenders shall be reduced pro rata in accordance
with their respective Revolving Credit Commitment Percentages of the
amount specified in such notice or, as the case may be, terminated, any such
termination or reduction to be without penalty except as otherwise set forth in
§4.8; provided, however, that no such termination or reduction
shall be permitted if, after giving effect thereto, the sum of Outstanding
Revolving Credit Loans, the Outstanding Swing Loans and the Letter of Credit Liabilities
would exceed the Revolving Credit Commitments of the Revolving Credit
Lenders as so terminated or reduced. 
Promptly after receiving any notice from the Borrower delivered pursuant
to this §2.4,2.3, the Agent will
notify the Revolving Credit Lenders of the substance thereof.  The Total
Commitment shall also be reduced as provided in §5.4 and §7.7.  Any reduction of the Revolving Credit Commitments
shall also result in a proportionate reduction (rounded to the next lowest
integral multiple of $100,000.00) in the maximum amount of Swing Loans and
Letters of Credit.  Upon the effective
date of any such reduction or termination, the Borrower shall pay to the Agent
for the respective accounts of the Revolving Credit Lenders the full
amount of any facility fee under §2.32.2
then accrued on the amount of the reduction. 
No reduction or termination of the Revolving Credit Commitments
may be reinstated.


 


§2.4         Swing Loan
Commitment.


 


(a)           Subject to the terms and conditions
set forth in this Agreement, Swing Loan Lender agrees to lend to the Borrower
(the “Swing Loans”), and the Borrower may borrow (and repay and reborrow) from
time to time between the Closing Date and the date which is five (5) Business
Days prior to the Revolving Credit Maturity Date upon notice by the
Borrower to 


 


38

















 


the Swing Loan Lender
given in accordance with this §2.5, such sums as are requested by the Borrower
for the purposes set forth in §2.92.8
in an aggregate principal amount at any one time outstanding not exceeding the
Swing Loan Commitment; provided that in all events (i) no Default
or Event of Default shall have occurred and be continuing; (ii) no Revolving
Credit Lender shall be a Delinquent Lender (provided Swing Loan Lender may,
in its sole discretion, be entitled to waive this condition); (iii) the
outstanding principal amount of the Revolving Credit Loans and Swing Loans (after
giving effect to all amounts requested) plus Letter of Credit Liabilities
shall not at any time exceed the lesser of (A) the
Total Revolving Credit Commitment; and (iv) the outstanding principal
amount of the Revolving Credit Loans, Term Loans and Swing Loans (after giving
effect to all amounts requested), plus Letter of Credit Liabilities shall not
at any time exceed the Total Commitment.Commitment
or (B) the Borrowing Base Availability, or cause a violation of the
covenant set forth in §9.1.  Swing
Loans shall constitute “Revolving Credit Loans” for all purposes
hereunder.  The funding of a Swing Loan
hereunder shall constitute a representation and warranty by the Borrower that
all of the conditions set forth in §10 and §11 have been satisfied on the date
of such funding.  The Swing Loan Lender
may assume that the conditions in §10 and §11 have been satisfied unless Swing
Loan Lender has received written notice from a Revolving Credit Lender
that such conditions have not been satisfied. 
Each Swing Loan shall be due and payable within five (5) Business
Days of the date such Swing Loan was provided and the Borrower hereby agrees
(to the extent not repaid as contemplated by §2.52.4(d) below) to repay each Swing Loan on or before the date
that is five (5) Business Days from the date such Swing Loan was provided.


 


(b)           The Swing Loans shall be evidenced by
a separate promissory note of the Borrower in substantially the form of Exhibit B
hereto (the “Swing Note”), dated the date of this Agreement and completed with
appropriate insertions.  The Swing Loan
Note shall be payable to the order of the Swing Loan Lender in the principal
face amount equal to the Swing Loan Commitment and shall be payable as set
forth below.  The Borrower irrevocably
authorizes the Swing Loan Lender to make or cause to be made, at or about the
time of the Drawdown Date of any Swing Loan or at the time of receipt of any
payment of principal thereof, an appropriate notation on the Swing Loan Lender’s
Record reflecting the making of such Swing Loan or (as the case may be) the
receipt of such payment.  The outstanding
amount of the Swing Loans set forth on the Swing Loan Lender’s Record shall be prima
facie evidence of the principal amount thereof owing and unpaid to the
Swing Loan Lender, but the failure to record, or any error in so recording, any
such amount on the Swing Loan Lender’s Record shall not limit or otherwise
affect the obligations of the Borrower hereunder or under the Swing Loan Note
to make payments of principal of or interest on any Swing Loan Note when due.


 


(c)           The Borrower shall request a Swing
Loan by delivering to the Swing Loan Lender a Loan Request executed by an
Authorized Officer no later than 11:00 a.m. (Cleveland time) on the
requested Drawdown Date specifying the amount of the requested Swing Loan
(which shall be in the minimum amount of $1,000,000.00) and providing the wire
instructions for the delivery of the Swing Loan proceeds.  The Loan Request shall also contain the
statements and certifications required by §2.72.6(i) and (ii).  Each
such Loan Request shall be irrevocable and binding on the Borrower and shall
obligate the Borrower to accept such Swing Loan on the Drawdown Date.  Notwithstanding anything herein to the
contrary, a Swing Loan shall be a Revolving
Credit Base Rate Loan and shall bear interest at the Base Rate plus the
Applicable Margin for Revolving Credit Base Rate Loansfifty (50) basis points (0.5%). 
The proceeds of the 


 


39

















 


Swing Loan will be disbursed
by wire by the Swing Loan Lender to the Borrower no later than 1:00 p.m.
(Cleveland time).


 


(d)           The Swing Loan Lender shall, within two
(2) Business Days after the Drawdown Date with respect to such Swing Loan,
request each Revolving Credit Lender, including the Swing Loan Lender,
to make a Revolving Credit Loan pursuant to §2.1 in an amount equal to such Revolving
Credit Lender’s Revolving Credit Commitment Percentage of the amount
of the Swing Loan outstanding on the date such notice is given.  In the event that the Borrower does not
notify the Agent in writing otherwise on or before noon (Cleveland Time) on the
second (2nd) Business Day after the Drawdown Date
with respect to such Swing Loan, Agent shall notify the Revolving Credit Lenders
that such Revolving Credit Loan shall be a Revolving Credit LIBOR Rate Loan with
an Interest Period of one (1) month, provided that the making of such
Revolving Credit LIBOR Rate Loan will not be in contravention of any other
provision of this Agreement, or if the making of a Revolving Credit LIBOR Rate
Loan would be in contravention of this Agreement, then such notice shall
indicate that such loan shall be a Revolving Credit Base Rate Loan.  The Borrower hereby irrevocably authorizes
and directs the Swing Loan Lender to so act on its behalf, and agrees that any
amount advanced to the Agent for the benefit of the Swing Loan Lender pursuant
to this §2.52.4(d) shall be
considered a Revolving Credit Loan pursuant to §2.1.  Unless any of the events described in
paragraph (h), (i) or (j) of §12.1 shall have occurred (in which
event the procedures of §2.52.4(e) shall
apply), each Revolving Credit Lender shall make the proceeds of its
Revolving Credit Loan available to the Swing Loan Lender for the account of the
Swing Loan Lender at the Agent’s Head Office prior to 12:00 noon (Cleveland
time) in funds immediately available no later than the third (3rd) Business Day
after the date such notice is given just as if the Revolving Credit Lenders
were funding directly to the Borrower, so that thereafter such Obligations
shall be evidenced by the Revolving Credit Notes.  The proceeds of such Revolving Credit Loan
shall be immediately applied to repay the Swing Loans.


 


(e)           If for any reason a Swing Loan cannot
be refinanced by a Revolving Credit Loan pursuant to §2.52.4(d), each Revolving Credit Lender
will, on the date such Revolving Credit Loan pursuant to §2.52.4(d) was to have been made, purchase an
undivided participation interest in the Swing Loan in an amount equal to its Revolving
Credit Commitment Percentage of such Swing Loan.  Each Revolving Credit Lender will
immediately transfer to the Swing Loan Lender in immediately available funds
the amount of its participation and upon receipt thereof the Swing Loan Lender
will deliver to such Revolving Credit Lender a Swing Loan participation
certificate dated the date of receipt of such funds and in such amount.


 


(f)            Whenever at any time after the Swing
Loan Lender has received from any Revolving Credit Lender such Revolving
Credit Lender’s participation interest in a Swing Loan, the Swing Loan
Lender receives any payment on account thereof, the Swing Loan Lender will
distribute to such Revolving Credit Lender its participation interest in
such amount (appropriately adjusted in the case of interest payments to reflect
the period of time during which such Revolving Credit Lender’s
participating interest was outstanding and funded); provided, however,
that in the event that such payment received by the Swing Loan Lender is
required to be returned, such Revolving Credit Lender will return to the
Swing Loan Lender any portion thereof previously distributed by the Swing Loan
Lender to it.


 


40

















 


(g)           Each Revolving Credit Lender’s
obligation to fund a Revolving Credit Loan as provided in §2.52.4(d) or to purchase participation
interests pursuant to §2.52.4(e) shall
be absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any setoff, counterclaim, recoupment,
defense or other right which such Revolving Credit Lender or the
Borrower may have against the Swing Loan Lender, the Borrower or anyone else
for any reason whatsoever; (ii) the occurrence or continuance of a Default
or an Event of Default; (iii) any adverse change in the condition
(financial or otherwise) of REIT, the Borrower or any of their respective
Subsidiaries; (iv) any breach of this Agreement or any of the other Loan
Documents by the Borrower or any Guarantor or any Lender; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.  Any portions of a Swing
Loan not so purchased or converted may be treated by the Agent and Swing Loan
Lender as against such Revolving Credit Lender as a Revolving Credit
Loan which was not funded by the non-purchasing Revolving Credit Lender
as contemplated by §2.82.7 and §12.5,
and shall have such rights and remedies against such Revolving Credit Lender
as are set forth in §§2.8,2.7, 12.5
and 14.5.  Each Swing Loan, once so sold
or converted, shall cease to be a Swing Loan for the purposes of this
Agreement, but shall be a Revolving Credit Loan made by each Revolving
Credit Lender under its Revolving Credit Commitment.


 


§2.5         Interest on Loans.


 


(a)           Each Revolving Credit Base Rate Loan
shall bear interest for the period commencing with the Drawdown Date thereof
and ending on, but excluding, the date on which such Revolving Credit Base Rate
Loan is repaid or converted to a Revolving Credit LIBOR Rate Loan at the rate
per annum equal to the sum of the Base Rate plus the Applicable Margin for
Base Rate Loansfifty (50) basis points
(0.5%).


 


(b)           Each Revolving Credit LIBOR Rate Loan
shall bear interest for the period commencing with the Drawdown Date thereof
and ending on the last day of each Interest Period with respect thereto at the
rate per annum equal to the sum of LIBOR determined for such Interest Period
plus the Applicable Margin for LIBOR Rate Loanstwo hundred seventy-five (275) basis points (2.75%).


 


(c)           Each Term Base Rate Loan shall bear
interest for the period commencing with the Drawdown Date thereof and ending on,
but excluding, the date on which such Term Base Rate Loan is repaid or is
converted to a Term LIBOR Rate Loan at a rate per annum equal to the sum of the
Applicable Margin for Base Rate Loans plus the Base Rate.


 


(d)           Each Term LIBOR Rate Loan shall bear
interest for the period commencing with the Drawdown Date thereof and ending on
the last day of each Interest Period with respect thereto at the rate per annum
equal to the sum of LIBOR determined for such Interest Period plus the
Applicable Margin for LIBOR Rate Loans.


 


(c)           (e) The Borrower promises to pay interest on each Loan in
arrears on each Interest Payment Date with respect thereto.


 


(d)           (f) Revolving
Credit Base Rate
Loans and Revolving Credit LIBOR Rate Loans
may be converted to Loans of the other Type as provided in §4.1.


 


41
















 


§2.6                          Requests for Revolving Credit Loans. 
Except with respect to the initial Revolving Credit Loan on the Closing
Date, the Borrower shall give to the Agent written notice executed by an
Authorized Officer in the form of Exhibit EG hereto (or telephonic notice confirmed in writing in the form of Exhibit
EG hereto) of each Revolving
Credit Loan requested hereunder (a “Loan Request”) by 11:00 a.m. (Cleveland
time) one (1) Business Day prior to the proposed Drawdown Date with respect to
Revolving Credit Base Rate Loans and three (3) Business Days prior to the
proposed Drawdown Date with respect to Revolving Credit LIBOR Rate Loans.  Each such notice shall specify with respect
to the requested Revolving Credit Loan the proposed principal amount of such
Revolving Credit Loan, the Type of Revolving Credit Loan, the initial Interest
Period (if applicable) for such Revolving Credit Loan and the Drawdown
Date.  Each such notice shall also
contain (i) a general statement as to the purpose for which such advance shall
be used (which purpose shall be in accordance with the terms of §2.92.8) and (ii) a certification by the chief
financial officer or chief accounting officer of the Borrower that the Borrower
and Guarantors are and will be in compliance with all covenants under the Loan
Documents after giving effect to the making of such Revolving Credit Loan.  Promptly upon receipt of any such notice, the
Agent shall notify each of the Revolving Credit Lenders thereof.  Each such Loan Request shall be irrevocable
and binding on the Borrower and shall obligate the Borrower to accept the
Revolving Credit Loan requested from the Revolving Credit Lenders on the
proposed Drawdown Date.  Nothing herein
shall prevent the Borrower from seeking recourse against any Revolving
Credit Lender that fails to advance its proportionate share of a requested
Revolving Credit Loan as required by this Agreement.  Each Loan Request shall be (a) for a
Revolving Credit Base Rate Loan in a minimum aggregate amount of $1,000,000.00  or an integral multiple of $100,000.00  in
excess thereof; or (b) for a Revolving Credit LIBOR Rate Loan in a minimum
aggregate amount of $1,000,000.00 or an integral multiple of $250,000.00 in
excess thereof; provided, however, that there shall be no more
than six (6) Revolving Credit LIBOR Rate Loans outstanding at any one time.


 


§2.7                          Funds for Loans.


 


(a)                                  Not later than 1:00 p.m. (Cleveland time)
on the proposed Drawdown Date of any Revolving Credit Loans or Term Loans,
each of the Revolving Credit Lenders or Term Loan Lenders, as
applicable, will make available to the Agent, at the Agent’s Head Office,
in immediately available funds, the amount of such Lender’s Commitment
Percentage of the amount of the requested Loans which may be disbursed pursuant
to §2.1 or §2.2.2.1.  Upon receipt from each such Revolving
Credit Lender or Term Loan Lender, as applicable, of such amount,
and upon receipt of the documents required by §10 and §11 and the satisfaction
of the other conditions set forth therein, to the extent applicable, the Agent
will make available to the Borrower the aggregate amount of such Revolving
Credit Loans or Term Loans made available to the Agent by the Revolving
Credit Lenders or Term Loan Lenders, as applicable, by crediting
such amount to the account of the Borrower maintained at the Agent’s Head
Office.  The failure or refusal of any Revolving
Credit Lender or Term Loan Lender to make available to the Agent at the
aforesaid time and place on any Drawdown Date the amount of its Commitment
Percentage of the requested Loans shall not relieve any other Revolving
Credit Lender or Term Loan Lender from its several obligation hereunder to
make available to the Agent the amount of such other Lender’s Commitment
Percentage of any requested Loans, including any additional Revolving Credit
Loans that may be requested subject to the terms and conditions hereof to
provide funds to replace those not advanced by the Lender so failing or
refusing.  In the event of 


 


42

















 


any such failure or
refusal, the Lenders not so failing or refusing shall be entitled to a priority
secured position as against the Lender or Lenders so failing or refusing to
make available to the Borrower the amount of its or their Commitment Percentage
for such Loans as provided in §12.5.


 


(b)                                 Unless the Agent shall have been notified
by any Lender prior to the applicable Drawdown Date that such Lender will not
make available to Agent such Lender’s Commitment Percentage of a proposed Loan,
Agent may in its discretion assume that such Lender has made such Loan
available to Agent in accordance with the provisions of this Agreement and the
Agent may, if it chooses, in reliance upon such assumption make such Loan
available to the Borrower, and such Lender shall be liable to the Agent for the
amount of such advance.  If such Lender
does not pay such corresponding amount upon the Agent’s demand therefor, the
Agent will promptly notify the Borrower, and the Borrower shall promptly pay
such corresponding amount to the Agent. 
The Agent shall also be entitled to recover from the Lender or the
Borrower, as the case may be, interest on such corresponding amount in respect
of each day from the date such corresponding amount was made available by the
Agent to the Borrower to the date such corresponding amount is recovered by the
Agent at a per annum rate equal to (i) from the Borrower at the applicable rate
for such Loan or (ii) from a Lender at the Federal Funds Effective Rate.


 


§2.8                          Use of Proceeds. 
The Borrower will use the proceeds of the Loans and the Letters of
Credit solely for general corporate and working capital purposes.


 


§2.9                          Letters of Credit.


 


(a)                                  Subject to the terms and conditions set
forth in this Agreement, at any time and from time to time from the Closing Date
through the day that is ninety (90) days prior to the Revolving Credit Maturity
Date, the Issuing Lender shall issue such Letters of Credit as the Borrower may
request upon the delivery of a written request in the form of Exhibit FH hereto (a “Letter of Credit Request”) to the
Issuing Lender, provided that (i) no Default or Event of Default shall
have occurred and be continuing, (ii) upon issuance of such Letter of Credit,
the Letter of Credit Liabilities shall not exceed Fifty Million Dollars ($50,000,000.00),
(iii) in no event shall the sum of (A) the Revolving Credit Loans Outstanding, (B)
 the Swing Loans Outstanding and (C) the
amount of Letter of Credit Liabilities (after giving effect to all Letters of
Credit requested) exceed the Total Revolving Credit Commitment, (iv) in
no event shall the outstanding principal amount of the Revolving Credit Loans,
Swing Loans, Letters and Letter of
Credit Liabilities and Term Loans (after giving effect to any requested
Letters of Credit) exceed the lesser of the
Total Commitment, or the Borrowing Base
Availability or cause a violation of the covenant set forth in §9.1, (v) the
conditions set forth in §§10 and 11 shall have been satisfied, (vi) no Revolving
Credit Lender is a Delinquent Lender (provided Issuing Lender may, in its
sole discretion, be entitled to waive this condition), and (vii) in no event
shall any amount drawn under a Letter of Credit be available for reinstatement
or a subsequent drawing under such Letter of Credit.  The Issuing Lender may assume that the
conditions in §10 and §11 have been satisfied unless it receives written notice
from a Revolving Credit Lender that such conditions have not been
satisfied.  Each Letter of Credit Request
shall be executed by an Authorized Officer of the Borrower.  The Issuing Lender shall be entitled to
conclusively rely on such Person’s authority to request a Letter of Credit on
behalf of the Borrower.  The Issuing
Lender 


 


43

















 


shall have no duty to
verify the authenticity of any signature appearing on a Letter of Credit
Request.  The Borrower assumes all risks
with respect to the use of the Letters of Credit.  Unless the Issuing Lender and the Majority
Revolving CreditRequired Lenders
otherwise consent, the term of any Letter of Credit shall not exceed a period
of time commencing on the issuance of the Letter of Credit and ending one year
after the date of issuance thereof, subject to extension pursuant to an “evergreen”
clause acceptable to Agent and Issuing Lender (but in any event the term shall
not extend beyond the Revolving Credit Maturity Date).  The amount available to be drawn under any
Letter of Credit shall reduce on a dollar-for-dollar basis the amount available
to be drawn under the Total Revolving Credit Commitment as a Revolving
Credit Loan. 
Schedule 2.9 attached hereto reflects all Letters of Credit outstanding
as of the First Amendment Date.


 


(b)                                 Each Letter of Credit Request shall be
submitted to the Issuing Lender at least five (5) Business Days (or such
shorter period as the Issuing Lender may approve) prior to the date upon which
the requested Letter of Credit is to be issued. 
Each such Letter of Credit Request shall contain (i) a statement as to
the purpose for which such Letter of Credit shall be used (which purpose shall
be in accordance with the terms of this Agreement), and (ii) a certification by
the chief financial or chief accounting officer of the Borrower that the
Borrower and Guarantors are and will be in compliance with all covenants under
the Loan Documents after giving effect to the issuance of such Letter of Credit.   The Borrower shall
further deliver to the Issuing Lender such additional applications (which
application as of the date hereof is in the form of Exhibit IL attached hereto) and documents as the
Issuing Lender may require, in conformity with the then standard practices of
its letter of credit department, in connection with the issuance of such Letter
of Credit; provided that in the event of any conflict, the terms of this
Agreement shall control.


 


(c)                                  The Issuing Lender shall, subject to the
conditions set forth in this Agreement, issue the Letter of Credit on or before
five (5) Business Days following receipt of the documents last due pursuant to
§2.102.9(b).  Each Letter of Credit shall be in form and
substance reasonably satisfactory to the Issuing Lender in its reasonable
discretion.


 


(d)                                 Upon the issuance of a Letter of Credit,
each Revolving Credit Lender shall be deemed to have purchased a
participation therein from Issuing Lender in an amount equal to its respective
Commitment Percentage of the amount of such Letter of Credit.  No Revolving Credit Lender’s
obligation to participate in a Letter of Credit shall be affected by any other Revolving
Credit Lender’s failure to perform as required herein with respect to such
Letter of Credit or any other Letter of Credit.


 


(e)                                  Upon the issuance of each Letter of
Credit, the Borrower shall pay to the Issuing Lender (i) for its own account, a
Letter of Credit fronting fee calculated at the rate set forth in the Agreement
Regarding Fees, and (ii) for the accounts of the Revolving Credit Lenders
(including the Issuing Lender) in accordance with their respective percentage
shares of participation in such Letter of Credit, a Letter of Credit fee
calculated at the rate per annum equal to the Applicable Margin then
applicable to LIBOR Rate Loanstwo hundred seventy-five
(275) basis points (2.75%) on the amount available to be drawn under such
Letter of Credit.  Such fees shall be
payable in quarterly installments in arrears with respect to each Letter of
Credit on the first day of each calendar quarter following the date of issuance
and continuing on each quarter or portion thereof thereafter, as applicable, or
on any earlier date on which the Commitments 


 


44

















 


shall terminate and on
the expiration or return of any Letter of Credit.  In addition, the Borrower shall pay to
Issuing Lender for its own account within five (5) days of demand of Issuing
Lender the standard issuance, documentation and service charges for Letters of
Credit issued from time to time by Issuing Lender.


 


(f)                                    In the event that any amount is drawn
under a Letter of Credit by the beneficiary thereof, the Borrower shall reimburse
the Issuing Lender by having such amount drawn treated as an outstanding
Revolving Credit Base Rate Loan under this Agreement (the Borrower being deemed
to have requested a Revolving Credit Base Rate Loan on such date in an amount
equal to the amount of such drawing and such amount drawn shall be treated as
an outstanding Revolving Credit Base Rate Loan under this Agreement) and the
Agent shall promptly notify each Revolving Credit Lender by telex,
telecopy, telegram, telephone (confirmed in writing) or other similar means of
transmission, and each Revolving Credit Lender shall promptly and
unconditionally pay to the Agent, for the Issuing Lender’s own account, an
amount equal to such Revolving Credit Lender’s Revolving Credit Commitment
Percentage of such Letter of Credit (to the extent of the amount drawn).  The Borrower further hereby irrevocably
authorizes and directs Agent to notify the Revolving Credit Lenders of the
Borrower’s intent to convert such Revolving Credit Base Rate Loan to a
Revolving Credit LIBOR Rate Loan with an Interest Period of one (1) month on
the third (3rd) Business Day following the funding by
the Revolving Credit Lenders of their advance under this §2.102.9(f), provided that the making of such
Revolving Credit LIBOR Rate Loan shall not be a contravention of any provision
of this Agreement.  If and to the extent
any Revolving Credit Lender shall not make such amount available on the
Business Day on which such draw is funded, such Revolving Credit Lender
agrees to pay such amount to the Agent forthwith on demand, together with
interest thereon, for each day from the date on which such draw was funded
until the date on which such amount is paid to the Agent, at the Federal Funds
Effective Rate until three (3) days after the date on which the Agent gives
notice of such draw and at the Federal Funds Effective Rate plus one percent (1.0%)
for each day thereafter.  Further, such Revolving
Credit Lender shall be deemed to have assigned any and all payments made of
principal and interest on its Revolving Credit Loans, amounts due with respect
to its participations in Letters of Credit and any other amounts due to it
hereunder to the Agent to fund the amount of any drawn Letter of Credit which
such Revolving Credit Lender was required to fund pursuant to this §2.102.9(f) until such amount has been funded (as a
result of such assignment or otherwise). 
In the event of any such failure or refusal, the Revolving Credit Lenders
not so failing or refusing shall be entitled to a priority secured position for
such amounts as provided in §12.5.  The
failure of any Revolving Credit Lender to make funds available to the
Agent in such amount shall not relieve any other Revolving Credit Lender
of its obligation hereunder to make funds available to the Agent pursuant to
this §2.102.9(f).


 


(g)                                 If after the issuance of a Letter of
Credit pursuant to §2.102.9(c) by
the Issuing Lender, but prior to the funding of any portion thereof by a Revolving
Credit Lender, for any reason a drawing under a Letter of Credit cannot be
refinanced as a Revolving Credit Loan, each Revolving Credit Lender
will, on the date such Revolving Credit Loan pursuant to §2.102.9(f) was to have been made, purchase an
undivided participation interest in the Letter of Credit in an amount equal to
its Revolving Credit Commitment Percentage of the amount of such Letter
of Credit.  Each Revolving Credit Lender
will immediately transfer to the Issuing Lender in immediately available funds
the amount of its participation and upon receipt thereof the 


 


45

















 


Issuing Lender will
deliver to such Revolving Credit Lender a Letter of Credit participation
certificate dated the date of receipt of such funds and in such amount.


 


(h)                                 Whenever at any time after the Issuing
Lender has received from any Revolving Credit Lender any such Revolving
Credit Lender’s payment of funds under a Letter of Credit and thereafter
the Issuing Lender receives any payment on account thereof, then the Issuing
Lender will distribute to such Revolving Credit Lender its participation
interest in such amount (appropriately adjusted in the case of interest
payments to reflect the period of time during which such Revolving Credit Lender’s
participation interest was outstanding and funded); provided, however,
that in the event that such payment received by the Issuing Lender is required
to be returned, such Revolving Credit Lender will return to the Issuing
Lender any portion thereof previously distributed by the Issuing Lender to it.


 


(i)                                     The issuance of any supplement,
modification, amendment, renewal or extension to or of any Letter of Credit
shall be treated in all respects the same as the issuance of a new Letter of
Credit.


 


(j)                                     The Borrower assumes all risks of the
acts, omissions, or misuse of any Letter of Credit by the beneficiary
thereof.  Neither Agent, Issuing Lender
nor any Lender will be responsible for (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any Letter of Credit or any document
submitted by any party in connection with the issuance of any Letter of Credit,
even if such document should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (ii) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) failure
of any beneficiary of any Letter of Credit to comply fully with the conditions
required in order to demand payment under a Letter of Credit; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise; (v) errors in interpretation of
technical terms; (vi) any loss or delay in the transmission or otherwise of any
document or draft required by or from a beneficiary in order to make a
disbursement under a Letter of Credit or the proceeds thereof; (vii) for the
misapplication by the beneficiary of any Letter of Credit of the proceeds of
any drawing under such Letter of Credit; and (viii) for any consequences
arising from causes beyond the control of Agent or any Lender.  None of the foregoing will affect, impair or
prevent the vesting of any of the rights or powers granted to Agent, Issuing
Lender or the Lenders hereunder.  In
furtherance and extension and not in limitation or derogation of any of the
foregoing, any act taken or omitted to be taken by Agent, Issuing Lender or the
other Lenders in good faith will be binding on the Borrower and will not put
Agent, Issuing Lender or the other Lenders under any resulting liability to the
Borrower; provided nothing contained herein shall relieve Issuing Lender
for liability to the Borrower arising as a result of the gross negligence or
willful misconduct of Issuing Lender as determined by a court of competent
jurisdiction after the exhaustion of all applicable appeal periods.


 


§2.10                    Increase in Total Revolving Credit Commitment.


 


(a)                                  Provided that no Default or Event of
Default has occurred and is continuing, subject to the terms and conditions set
forth in this §2.11,2.10, the
Borrower shall 


 


46

















 


have the option at any
time and from time to time before the date that is ninety (90) days prior to
the Revolving Credit Maturity Date (or the extended maturity date if the
Borrower exercises its extension option pursuant to §2.12) to request an
increase in the Total Revolving Credit Commitment to not more than $600,000,000.00300,000,000.00 by giving written notice to the
Agent (an “Increase Notice”; and the amount of such requested increase is the “Commitment
Increase”), provided that any such individual increase must be in a
minimum amount of $25,000,000.00.  Upon
receipt of any Increase Notice, the Agent shall consult with Arranger and shall
notify the Borrower of the amount of facility fees to be paid to any Revolving
Credit Lenders who provide an additional Revolving Credit Commitment
in connection with such increase in the Total Revolving Credit Commitment
(which shall be in addition to the fees to be paid to Agent or Arranger
pursuant to the Agreement Regarding Fees). 
If the Borrower agrees to pay the facility fees so determined, then the
Agent shall send a notice to all Revolving Credit Lenders (the “Additional
Commitment Request Notice”) informing them of the Borrower’s request to
increase the Total Revolving Credit Commitment and of the facility fees
to be paid with respect thereto.  Each Revolving
Credit Lender who desires to provide an additional Revolving Credit Commitment
upon such terms shall provide Agent with a written commitment letter specifying
the amount of the additional Revolving Credit Commitment by which it is
willing to provide prior to such deadline as may be specified in the Additional
Commitment Request Notice.  If the
requested increase is oversubscribed then the Agent and the Arranger shall
allocate the Commitment Increase among the Revolving Credit Lenders who
provide such commitment letters on such basis as the Agent and the Arranger
shall determine in their sole discretion. 
If the additional Revolving Credit Commitments so provided are
not sufficient to provide the full amount of the Commitment Increase requested
by the Borrower, then the Agent, Arranger or the Borrower may, but shall not be
obligated to, invite one or more banks or lending institutions (which banks or
lending institutions shall be acceptable to Agent, Arranger and the Borrower)
to become a Revolving Credit Lender and provide an additional Revolving
Credit Commitment.  The Agent shall
provide all Revolving Credit Lenders with a notice setting forth the
amount, if any, of the additional Revolving Credit Commitment to be
provided by each Revolving Credit Lender and the revised Revolving
Credit Commitment Percentages which shall be applicable after the effective
date of the Commitment Increase specified therein (the “Commitment Increase
Date”).  In no event shall any Revolving
Credit Lender be obligated to provide an additional Revolving Credit Commitment.


 


(b)                                 On any Commitment Increase Date the
outstanding principal balance of the Revolving Credit Loans shall be
reallocated among the Revolving Credit Lenders such that after the
applicable Commitment Increase Date the outstanding principal amount of Revolving
Credit Loans owed to each Revolving Credit Lender shall be equal to such
Revolving Credit Lender’s Revolving Credit Commitment Percentage
(as in effect after the applicable Commitment Increase Date) of the outstanding
principal amount of all Revolving Credit Loans. 
The participation interests of the Revolving Credit Lenders in
Swing Loans and Letters of Credit shall be similarly adjusted.  On any Commitment Increase Date those Revolving
Credit Lenders whose Revolving Credit Commitment Percentage is
increasing shall advance the funds to the Agent and the funds so advanced shall
be distributed among the Revolving Credit Lenders whose Revolving
Credit Commitment Percentage is decreasing as necessary to accomplish the
required reallocation of the outstanding Revolving Credit Loans.  The funds so advanced shall be Revolving
Credit Base Rate Loans until converted to Revolving Credit LIBOR Rate Loans 


 


47

















 


which are allocated among
all Revolving Credit Lenders based on their Revolving Credit Commitment
Percentages.


 


(c)                                  Upon the effective date of each increase
in the Total Revolving Credit Commitment pursuant to this §2.112.10 the Agent may unilaterally revise Schedule
1.1 and the Borrower shall execute and deliver to the Agent new Revolving
Credit Notes for each Revolving Credit Lender whose Revolving Credit Commitment
has changed so that the principal amount of such Revolving Credit Lender’s
Revolving Credit Note shall equal its Revolving Credit Commitment.  The Agent shall deliver such replacement
Revolving Credit Notes to the respective Revolving Credit Lenders in
exchange for the Revolving Credit Notes replaced thereby which shall be
surrendered by such Revolving Credit Lenders.  Such new Revolving Credit Notes shall provide
that they are replacements for the surrendered Revolving Credit Notes and that
they do not constitute a novation, shall be dated as of the Commitment Increase
Date and shall otherwise be in substantially the form of the replaced Revolving
Credit Notes.  Within five (5) days of
issuance of any new Revolving Credit Notes pursuant to this §2.112.10(c), the Borrower shall deliver an opinion
of counsel, addressed to the Revolving Credit Lenders and the Agent,
relating to the due authorization, execution and delivery of such new Revolving
Credit Notes and the enforceability thereof, in form and substance
substantially similar to the opinion delivered in connection with the first
disbursement under this Agreement. The surrendered Revolving Credit Notes shall
be canceled and returned to the Borrower.


 


(d)                                 Notwithstanding anything to the contrary
contained herein, the obligation of the Agent and the Revolving Credit Lenders
to increase the Total Revolving Credit Commitment pursuant to this §2.112.10 shall be conditioned upon satisfaction of
the following conditions precedent which must be satisfied prior to the
effectiveness of any increase of the Total Commitment:


 


(i)                                     Payment of Activation Fee. 
The Borrower shall pay (A) to the Agent those fees described in and
contemplated by the Agreement Regarding Fees with respect to the applicable
Commitment Increase, and (B) to the Arranger such facility fees as the Revolving
Credit Lenders who are providing an additional Revolving Credit Commitment
may require to increase the aggregate Revolving Credit Commitment, which
fees shall, when paid, be fully earned and non-refundable under any
circumstances.  The Arranger shall pay to
the Revolving Credit Lenders acquiring the increased Revolving Credit
Commitment certain fees pursuant to their separate agreement; and


 


(ii)                                  No Default.  On the date
any Increase Notice is given and on the date such increase becomes effective,
both immediately before and after the Total Revolving Credit Commitment
is increased, there shall exist no Default or Event of Default; and


 


(iii)                               Representations True. 
The representations and warranties made by the Borrower and Guarantors
in the Loan Documents or otherwise made by or on behalf of the Borrower or the
Guarantors in connection therewith or after the date thereof shall have been
true and correct in all material respects when made and shall also be true and
correct in all material respects on the date of such Increase Notice and on the
date the Total Revolving Credit Commitment is increased, both
immediately before and after the Total Revolving Credit Commitment is
increased, except to the extent of changes resulting from transactions permitted



 


48

















 


by the Loan Documents and
except as previously disclosed in writing by the Borrower to Agent and approved
by the Agent in writing (which disclosures shall be deemed to amend the
Schedules and other disclosures delivered as contemplated in this Agreement) (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct
only as of such specified date); and


 


(iv)                              Additional Documents and Expenses.  The
Borrower and the Subsidiary Guarantors
shall execute and deliver to Agent and the Revolving Credit Lenders such
additional documents (including, without limitation, amendments to the Security
Documents), instruments, certifications and opinions as the Agent may
reasonably require in its sole and absolute discretion,  (including, without limitation, in the case of the Borrower, a Compliance
Certificate, demonstrating compliance with all covenants, representations and
warranties set forth in the Loan Documents after giving effect to the increase) and the Borrower shall pay the cost of any
mortgagee’s title insurance policy or any endorsement or update thereto or any
updated UCC searches, all recording costs and fees, and any and all intangible
taxes or other documentary or mortgage taxes, assessments or charges or any
similar fees, taxes or expenses which are required to be paid in connection
with such increase; and


 


(v)                                 Other.  The Borrower
shall satisfy such other conditions to such increase as Agent may require in
its reasonable discretion.


 


§2.11                    Extension of Revolving Credit Maturity
Date.  The Borrower shall have the one-time right
and option to extend the Revolving Credit Maturity Date to December 11,
2011, upon satisfaction of the following conditions precedent, which must be
satisfied prior to the effectiveness of any extension of the Revolving
Credit Maturity Date:


 


(a)                                  Extension Request. 
The Borrower shall deliver written notice of such request (the “Revolving
Credit Extension Request”) to the Agent not earlier than the date which is one
hundred twenty (120) days and not later than the date which is sixty (60) days
prior to the Revolving Credit Maturity Date (as determined without
regard to such extension).  Any such
Extension Request shall be irrevocable and binding on the Borrower.


 


(b)                                 Payment of Extension Fee. 
The Borrower shall pay to the Agent for the pro  rata
accounts of the Revolving Credit Lenders in accordance with their
respective Revolving Credit Commitments an extension fee in an amount
equal to fifteen (15) basis points on the Total Revolving Credit Commitment
in effect on the Revolving Credit Maturity Date (as determined without
regard to such extension), which fee shall, when paid, be fully earned and
non-refundable under any circumstances.


 


(c)                                  No Default.  On the date
the Revolving Credit Extension Request is given and on the Revolving Credit Maturity
Date (as determined without regard to such extension) there shall exist no
Default or Event of Default.


 


(d)                                 Representations and Warranties. 
The representations and warranties made by the Borrower and the
Guarantors in the Loan Documents or otherwise made by or on behalf of the
Borrower and the Guarantors in connection therewith or after the date thereof
shall have been true and correct in all material respects when made and shall
also be true and correct in all 


 


49

















 


material respects on the
date the Revolving Credit Extension Request is given and on the Revolving
Credit Maturity Date (as determined without regard to such extension),
except to the extent of changes resulting from transactions permitted by the
Loan Documents and except as previously disclosed in writing by the Borrower to
Agent and approved by the Agent in writing (which disclosures shall be deemed
to amend the Schedules and other disclosures delivered as contemplated in this
Agreement) (it being understood and agreed that any representation or warranty
which by its terms is made as of a specified date shall be required to be true
and correct only as of such specified date).


 


§Extension of
Term Loan Maturity Date.  The
Borrower shall have the one-time right and option to extend the Term Loan
Maturity Date to December 11, 2011, upon satisfaction of the following
conditions precedent, which must be satisfied prior to the effectiveness of any
extension of the Term Loan Maturity Date:


 


(a)                                  Extension Request. 
The Borrower shall deliver written notice of such request (the “Term
Loan Extension Request”) to the Agent not earlier than the date which is one
hundred twenty (120) days and not later than the date which is sixty (60) days
prior to the Term Loan Maturity Date (as determined without regard to such
extension).  Any such Term Loan Extension
Request shall be irrevocable and binding on the Borrower.


 


(b)                                 Payment of Extension Fee. 
The Borrower shall pay to the Agent for the pro  rata
accounts of the Term Loan Lenders in accordance with their respective Term Loan
Commitment Percentages an extension fee in an amount equal to ten (10) basis
points on the Term Loans Outstanding as of the Term Loan Maturity Date (as
determined without regard to such extension), which fee shall, when paid, be
fully earned and non-refundable under any circumstances.


 


(c)                                  No Default. 
On the date the Term Loan Extension Request is given and on the Term
Loan Maturity Date (as determined without regard to such extension) there shall
exist no Default or Event of Default.


 


(d)                                 Representations and Warranties. 
The representations and warranties made by the Borrower and the
Guarantors in the Loan Documents or otherwise made by or on behalf of the
Borrower and the Guarantors in connection therewith or after the date thereof
shall have been true and correct in all material respects when made and shall
also be true and correct in all material respects on the date the Term Loan Extension
Request is given and on the Term Loan Maturity Date (as determined without
regard to such extension), except to the extent of changes resulting from
transactions permitted by the Loan Documents and except as previously disclosed
in writing by the Borrower to Agent and approved by the Agent in writing (which
disclosures shall be deemed to amend the Schedules and other disclosures
delivered as contemplated in this Agreement) (it being understood and agreed
that any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct only as of such
specified date).


 


(e)           Pro Forma Covenant Compliance.  Borrower shall have delivered to Agent
evidence reasonably satisfactory to Agent that Borrower will be in pro forma
compliance with the covenant set forth in §9.1 immediately after giving effect
to the extension.


 


50
















 


(f)                                    Appraisal
of Three Eldridge Place.  Agent at its
option shall have obtained at Borrower’s expense a new Appraisal or an update
to the existing Appraisal of Three Eldridge Place and determined the current
Appraised Value of Three Eldridge Place.


 


§3.                                REPAYMENT OF THE LOANS.


 


§3.1                          Stated Maturity. 
The Borrower promises to pay on the Revolving Credit Maturity
Date and there shall become absolutely due and payable on the Revolving
Credit Maturity Date all of the Revolving Credit Loans, Swing Loans and other
Letter of Credit Liabilities outstanding on such date, together with any and
all accrued and unpaid interest thereon. 
The Borrower promises to pay on the Term Loan Maturity Date and there
shall become absolutely due and payable on the Term Loan Maturity Date all of
the Term Loans outstanding on such date, together with any and all accrued and
unpaid interest thereon.


 


§3.2                          Mandatory Prepayments. 
If at any time the sum of the aggregate outstanding principal amount of
the Revolving Credit Loans, the Swing Loans and the Letter of Credit Liabilities
exceeds the (a) Total Revolving Credit Commitment or (b) the Borrowing Base Availability, then
the Borrower shall, within five (5) Business Days of such occurrence, pay the amount of such excess to the Agent
for the respective accounts of the Revolving Credit Lenders, as
applicable, for application to the Revolving Credit Loans as provided in §3.4,
together with any additional amounts payable pursuant to §4.8, except that the
amount of any Swing Loans shall be paid solely to the Swing Loan Lender.  In the
event there shall have occurred a casualty with respect to any Mortgaged
Property and the Borrower is required to repay the Loans pursuant to a Mortgage
or §7.7 or a Taking and the Borrower is required to repay the Loans pursuant to
a Mortgage or §7.7, the Borrower shall prepay the Loans within two (2) Business
Days of the date of receipt by the Borrower or the Agent of any Insurance
Proceeds or Condemnation Proceeds in respect of such casualty or Taking, as
applicable, in the amount required pursuant to the relevant provisions of §7.7
or such Mortgage.


 


§3.3                          Optional Prepayments.


 


(a)                                  The Borrower shall have the right, at its
election, to prepay the outstanding amount of the Revolving Credit Loans and
Swing Loans, as a whole or in part, at any time without penalty or premium; provided,
that if any prepayment of the outstanding amount of any Revolving Credit LIBOR
Rate Loans pursuant to this §3.3 is made on a date that is not the last day of
the Interest Period relating thereto, such prepayment shall be accompanied by
the payment of any amounts due pursuant to §4.8.


 


(b)                                 The Borrower shall have the right, at its
election, to prepay the outstanding amount of the Term Loans, as a whole or in
part, at any time without penalty or premium except as otherwise provided
herein.  In connection with any
prepayment of the Term Loan permitted hereunder (or accepted with the approval
of the Term Loan Lenders) during the Prepayment Period, the Borrower shall pay
Agent for the account of the Term Loan Lenders any sums that may be due under
§4.8 and a prepayment fee in an amount equal to one half of one percent (0.5%)
of the amount of the Term Loans prepaid if prepayment occurs prior to the
expiration of the Prepayment Period.  No
prepayment fees shall be due on prepayments made after the expiration of the Prepayment
Period.  Under any and all circumstances
where all or any portion 


 


51

















 


of the Term Loans is paid prior to the expiration of
the Prepayment Period, whether such prepayment is voluntary or involuntary,
even if such prepayment results from Agent’s or the Lenders’ exercise of its
rights upon the occurrence of an Event of Default and acceleration of the
Revolving Credit Maturity Date or the Term Loan Maturity Date (irrespective of
whether foreclosure proceedings have been commenced), the Borrower shall to the
extent permitted by applicable law pay to the Lenders the prepayment fee
calculated as provided above, which prepayment fee shall be in addition to any
other sums due hereunder or under any of the other Loan Documents.  No tender of a prepayment of the Term Loans
with respect to which a prepayment fee is due shall be effective unless such
prepayment is accompanied by the prepayment fee.


 


(b)                                 (c) The Borrower shall give the Agent, no later than 10:00
a.m. (Cleveland time) at least three (3) days prior written notice of any
prepayment pursuant to this §3.3, in each case specifying the proposed date of
prepayment of the Loans and the principal amount to be prepaid (provided that
any such notice may be revoked or modified upon one (1) day’s prior notice to
the Agent).  Notwithstanding the
foregoing, no prior notice shall be required for the prepayment of any Swing
Loan.


 


§3.4                          Partial Prepayments. 
Each partial prepayment of the Loans under §3.3 shall be in a minimum
amount of $1,000,000.00 or an integral multiple of $100,000.00 in excess
thereof, shall be accompanied by the payment of accrued interest on the
principal prepaid to the date of payment. Each partial payment under §3.2 and
§3.3 shall be applied first to the principal of any Outstanding Swing Loans,
then, in the absence of instruction by the Borrower, to the principal of Revolving
Credit Loans and then to the principal of Term Loans (and with respect
to each category of Loans, first to the principal of Revolving Credit Base Rate Loans, and then to the principal of Revolving Credit LIBOR Rate Loans).


 


§3.5                          Effect of Prepayments. 
Amounts of the Revolving Credit Loans prepaid under §3.2 and §3.3 prior
to the Revolving Credit Maturity Date may be reborrowed as provided in
§2.  Any portion of the Term Loans
that is prepaid may not be reborrowed.


 


§4.                                CERTAIN GENERAL PROVISIONS.


 


§4.1                          Conversion Options.


 


(a)                                  The Borrower may elect from time to time
to convert any of its outstanding Revolving Credit Loans or Term Loans to
a Revolving Credit Loan or Term Loan of another Type and such Revolving
Credit Loans or Term Loans shall thereafter bear interest as a Revolving Credit Base Rate Loan or a Revolving Credit LIBOR Rate Loan, as
applicable; provided that (i) with respect to any such conversion of a Revolving Credit LIBOR Rate Loan to a Revolving Credit Base Rate Loan, the Borrower
shall give the Agent at least one (1) Business Day’s prior written notice of
such election, and such conversion shall only be made on the last day of the
Interest Period with respect to such Revolving
Credit LIBOR Rate Loan; (ii) with respect to any such conversion of a Revolving Credit Base Rate Loan to a Revolving Credit LIBOR Rate Loan, the Borrower
shall give the Agent at least three (3) LIBOR Business Days’ prior written
notice of such election and the Interest Period requested for such Loan, the
principal amount of the Loan so converted shall be in a minimum aggregate
amount of $1,000,000.00 or 


 


52

















 


an integral multiple of
$250,000.00 in excess thereof and, after giving effect to the making of such
Loan, there shall be no more than six (6) Revolving Credit LIBOR Rate Loans
and two (2) Term LIBOR Rate Loans outstanding at any one time; and (iii) no
Loan may be converted into a Revolving Credit LIBOR
Rate Loan when any Default or Event of Default has occurred and is
continuing.  All or any part of the outstanding
Revolving Credit Loans or Term Loans of any Type may be converted as
provided herein, provided that no partial conversion shall result in a
Revolving Credit Base Rate Loan or Term Base Rate Loan in a principal
amount of less than $1,000,000.00 or a Revolving Credit LIBOR Rate Loan or a
Term LIBOR Rate Loan in a principal amount of less than $1,000,000.00 or an
integral multiple of $250,000.00.  On the
date on which such conversion is being made, each Lender shall take such action
as is necessary to transfer its Commitment Percentage of such Loans to its
Domestic Lending Office or its LIBOR Lending Office, as the case may be.  Each Conversion/Continuation Request relating
to the conversion of a Revolving Credit Base
Rate Loan to a Revolving Credit LIBOR Rate
Loan shall be irrevocable by the Borrower.


 


(b)                                 Any Revolving
Credit LIBOR Rate Loan may be continued as such Type upon the expiration of
an Interest Period with respect thereto by compliance by the Borrower with the
terms of §4.1; provided that no Revolving
Credit LIBOR Rate Loan may be continued as such when any Default or Event
of Default has occurred and is continuing, but shall be automatically converted
to a Revolving Credit Base Rate Loan on the
last day of the Interest Period relating thereto ending during the continuance
of any Default or Event of Default.


 


(c)                                  In the event that the Borrower does not
notify the Agent of its election hereunder with respect to any Revolving Credit LIBOR Rate Loan, such Loan
shall be automatically converted at the end of the applicable Interest Period to
a Revolving Credit Base Rate Loan.


 


(d)                                 The Interest Periods in
effect immediately prior to the First Amendment Date shall be continued with
respect to and be applicable to the Revolving Credit LIBOR Rate Loans as of the
First Amendment Date.


 


§4.2                          Fees.  The Borrower
agrees to pay to KeyBank and Agent for their own account certain fees for
services rendered or to be rendered in connection with the Loans as provided
pursuant to a fee letter dated September 19, 2007 between the Borrower and
KeyBank (the “Agreement Regarding Fees”). 
All such fees shall be fully earned when paid and nonrefundable under
any circumstances.


 


§4.3                          Funds for Payments.


 


(a)                                  All payments of principal, interest,
facility fees, Letter of Credit fees, closing fees and any other amounts due
hereunder or under any of the other Loan Documents shall be made to the Agent,
for the respective accounts of the Lenders and the Agent, as the case may be,
at the Agent’s Head Office, not later than 2:00 p.m. (Cleveland time) on the
day when due, in each case in lawful money of the United States in immediately
available funds.  The Agent is hereby
authorized to charge the accounts of the Borrower with KeyBank set forth on Schedule
4.3, on the dates when the amount thereof shall become due and payable,
with the amounts of the principal of and interest on the Loans and all fees,
charges, expenses and other 


 


53

















 


amounts owing to the
Agent and/or the Lenders (including the Swing Loan Lender) under the Loan
Documents.  Subject to the foregoing, all
payments made to Agent on behalf of the Lenders, and actually received by
Agent, shall be deemed received by the Lenders on the date actually received by
Agent.


 


(b)                                 All payments by the Borrower hereunder
and under any of the other Loan Documents shall be made without setoff or
counterclaim and free and clear of and without deduction for any taxes (other
than income or franchise taxes imposed on any Lender), levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein
unless the Borrower is compelled by law to make such deduction or
withholding.  If any such obligation is
imposed upon the Borrower with respect to any amount payable by it hereunder or
under any of the other Loan Documents, the Borrower will pay to the Agent, for
the account of the Lenders (including the Swing Loan Lender) or (as the case
may be) the Agent, on the date on which such amount is due and payable
hereunder or under such other Loan Document, such additional amount in Dollars
as shall be necessary to enable the Lenders or the Agent to receive the same
net amount which the Lenders or the Agent would have received on such due date
had no such obligation been imposed upon the Borrower.  The Borrower will deliver promptly to the Agent
certificates or other valid vouchers for all taxes or other charges deducted
from or paid with respect to payments made by the Borrower hereunder or under
any other Loan Document.


 


(c)                                  Each Lender organized under the laws of a
jurisdiction outside the United States (but only so long as such Lender remains
lawfully able to do so), shall provide the Borrower with such duly executed
form(s) or statement(s) which may, from time to time, be prescribed by law and,
which, pursuant to applicable provisions of (i) an income tax treaty between
the United States and the country of residence of such Lender, (ii) the Code,
or (iii) any applicable rules or regulations in effect under (i) or (ii) above,
indicates the withholding status of such Lender; provided that nothing
herein (including without limitation the failure or inability to provide such
form or statement) shall relieve the Borrower of its obligations under §4.3(b).  In the event that the Borrower shall have
delivered the certificates or vouchers described above for any payments made by
the Borrower and such Lender receives a refund of any taxes paid by the
Borrower pursuant to §4.3(b), such Lender will pay to the Borrower the amount
of such refund promptly upon receipt thereof; provided that if at any
time thereafter such Lender is required to return such refund, the Borrower
shall promptly repay to such Lender the amount of such refund.


 


(d)                                 The obligations of the Borrower to the
Lenders under this Agreement with respect to Letters of Credit (and of the Revolving
Credit Lenders to make payments to the Issuing Lender with respect to
Letters of Credit and to the Swing Loan Lender with respect to Swing Loans)
shall be absolute, unconditional and irrevocable, and shall be paid and
performed strictly in accordance with the terms of this Agreement, under all
circumstances whatsoever, including, without limitation, the following
circumstances:  (i) any lack of validity
or enforceability of this Agreement, any Letter of Credit or any of the other
Loan Documents; (ii) any improper use which may be made of any Letter of Credit
or any improper acts or omissions of any beneficiary or transferee of any
Letter of Credit in connection therewith; (iii) the existence of any claim,
set-off, defense or any right which the Borrower or any of its Subsidiaries or
Affiliates may have at any time against any beneficiary or any transferee of
any Letter of Credit 


 


54

















 


(or persons or entities
for whom any such beneficiary or any such transferee may be acting) or the
Lenders (other than the defense of payment to the Lenders in accordance with
the terms of this Agreement) or any other person, whether in connection with
any Letter of Credit, this Agreement, any other Loan Document, or any unrelated
transaction; (iv) any draft, demand, certificate, statement or any other
documents presented under any Letter of Credit proving to be insufficient,
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect whatsoever; (v) any breach of any agreement
between the Borrower or any of its Subsidiaries or Affiliates and any
beneficiary or transferee of any Letter of Credit; (vi) any irregularity in the
transaction with respect to which any Letter of Credit is issued, including any
fraud by the beneficiary or any transferee of such Letter of Credit; (vii) payment
by the Issuing Lender under any Letter of Credit against presentation of a
sight draft, demand, certificate or other document which does not comply with
the terms of such Letter of Credit, provided that such payment shall not
have constituted gross negligence or willful misconduct on the part of the
Issuing Lender as determined by a court of competent jurisdiction after the
exhaustion of all applicable appeal periods; (viii) any non-application or
misapplication by the beneficiary of a Letter of Credit of the proceeds of such
Letter of Credit; (ix) the legality, validity, form, regularity or
enforceability of the Letter of Credit; (x) the failure of any payment by
Issuing Lender to conform to the terms of a Letter of Credit (if, in Issuing
Lender’s good faith judgment, such payment is determined to be appropriate);
(xi) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Loan Documents; (xii) the
occurrence of any Default or Event of Default; and (xiii) any other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing, provided that such other circumstances or happenings shall
not have been the result of gross negligence or willful misconduct on the part
of the Issuing Lender or the Swing Loan Lender, as applicable as determined by
a court of competent jurisdiction after the exhaustion of all applicable appeal
periods.


 


§4.4                          Computations. 
All computations of interest on the Loans and of other fees to the
extent applicable shall be based on a 360-day year (or a 365 day year in the
case of Revolving Credit Base Rate Loans)
and paid for the actual number of days elapsed. Except as otherwise provided in
the definition of the term “Interest Period” with respect to Revolving Credit LIBOR Rate Loans, whenever a
payment hereunder or under any of the other Loan Documents becomes due on a day
that is not a Business Day, the due date for such payment shall be extended to
the next succeeding Business Day, and interest shall accrue during such
extension.  The Outstanding Loans and
Letter of Credit Liabilities as reflected on the records of the Agent from time
to time shall be considered prima facie evidence of such amount absent manifest
error.


 


§4.5                          Suspension of Revolving
Credit LIBOR
Rate Loans.  In the event that, prior to the commencement
of any Interest Period relating to any Revolving
Credit LIBOR Rate Loan, the Agent shall determine that adequate and
reasonable methods do not exist for ascertaining LIBOR for such Interest
Period, or the Agent shall reasonably determine that LIBOR will not accurately
and fairly reflect the cost of the Lenders making or maintaining Revolving Credit LIBOR Rate Loans for such
Interest Period, the Agent shall forthwith give notice of such determination
(which shall be conclusive and binding on the Borrower and the Lenders absent
manifest error) to the Borrower and the Lenders.  In such event (a) any Loan Request with
respect to a Revolving Credit LIBOR Rate
Loan shall be automatically withdrawn and shall be deemed a request for a Revolving Credit Base Rate Loan and (b) each Revolving Credit LIBOR Rate Loan 


 


55

















 


will automatically, on
the last day of the then current Interest Period applicable thereto, become a Revolving Credit Base Rate Loan, and the
obligations of the Lenders to make Revolving
Credit LIBOR Rate Loans shall be suspended until the Agent determines that
the circumstances giving rise to such suspension no longer exist, whereupon the
Agent shall so notify the Borrower and the Lenders.


 


§4.6                          Illegality. 
Notwithstanding any other provisions herein, if any present or future
law, regulation, treaty or directive or the interpretation or application
thereof shall make it unlawful, or any central bank or other governmental
authorityGovernmental Authority having
jurisdiction over a Lender or its LIBOR Lending Office shall assert that it is
unlawful, for any Lender to make or maintain Revolving
Credit LIBOR Rate Loans, such Lender shall forthwith give notice of such
circumstances to the Agent and the Borrower and thereupon (a) the commitment of
the Lenders to make Revolving Credit LIBOR
Rate Loans shall forthwith be suspended and (b) the Revolving Credit LIBOR Rate Loans then outstanding shall be
converted automatically to Revolving Credit Base
Rate Loans on the last day of each Interest Period applicable to such Revolving Credit LIBOR Rate Loans or within
such earlier period as may be required by law. 
Notwithstanding the foregoing, before giving such notice, the applicable
Lender shall designate a different lending office if such designation will void
the need for giving such notice and will not, in the judgment of such Lender,
be otherwise materially disadvantageous to such Lender or increase any costs
payable by the Borrower hereunder.


 


§4.7                          Additional Interest. 
If any Revolving Credit LIBOR Rate
Loan or any portion thereof is repaid or is converted to a Revolving Credit Base Rate Loan for any reason on a date which is
prior to the last day of the Interest Period applicable to such Revolving Credit LIBOR Rate Loan, or if
repayment of the Loans has been accelerated as provided in §12.1, or if the
Borrower fails to draw down on the first day of the applicable Interest Period
any amount as to which Borrower has elected a Revolving
Credit LIBOR Rate Loan, the Borrower will pay to the Agent upon demand for
the account of the applicable Lenders in accordance with their respective
Commitment Percentages (or to the Swing Loan Lender with respect to a Swing
Loan), in addition to any amounts of interest otherwise payable hereunder, the
Breakage Costs.  The Borrower understands,
agrees and acknowledges the following:  (i)
no Lender has any obligation to purchase, sell and/or match funds in connection
with the use of LIBOR as a basis for calculating the rate of interest on a Revolving Credit LIBOR Rate Loan; (ii) LIBOR
is used merely as a reference in determining such rate; and (iii) the Borrower
has accepted LIBOR as a reasonable and fair basis for calculating such rate and
any Breakage Costs.  The Borrower further
agrees to pay the Breakage Costs, if any, whether or not a Lender elects to
purchase, sell and/or match funds.


 


§4.8                          Additional Costs, Etc. 
Notwithstanding anything herein to the contrary, if any present or
future applicable law, which expression, as used herein, includes statutes, rules
and regulations thereunder and interpretations thereof by any competent court
or by any governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time (or from time to time) hereafter made upon
or otherwise issued to any Lender or the Agent by any central bank or other
fiscal, monetary or other authority (whether or not having the force of law),
shall:


 


56

















 


(a)                                  subject any Lender or the Agent to any
tax, levy, impost, duty, charge, fee, deduction or withholding of any nature
with respect to this Agreement, the other Loan Documents, such Lender’s
Commitment, a Letter of Credit or the Loans (other than taxes based upon or
measured by the gross receipts, income or profits of such Lender or the Agent
or its franchise tax), or


 


(b)                                 materially change the basis of taxation
(except for changes in taxes on gross receipts, income or profits or its
franchise tax) of payments to any Lender of the principal of or the interest on
any Loans or any other amounts payable to any Lender under this Agreement or
the other Loan Documents, or


 


(c)                                  impose or increase or render applicable
any special deposit, reserve, assessment, liquidity, capital adequacy or other
similar requirements (whether or not having the force of law and which are not
already reflected in any amounts payable by the Borrower hereunder) against
assets held by, or deposits in or for the account of, or loans by, or
commitments of an office of any Lender, or


 


(d)                                 impose on any Lender or the Agent any
other conditions or requirements with respect to this Agreement, the other Loan
Documents, the Loans, such Lender’s Commitment, a Letter of Credit or any class
of loans or commitments of which any of the Loans or such Lender’s Commitment
forms a part; and the result of any of the foregoing is:


 


(i)                                     to increase the cost to any Lender of
making, funding, issuing, renewing, extending or maintaining any of the Loans,
the Letters of Credit or such Lender’s Commitment, or


 


(ii)                                  to reduce the amount of principal,
interest or other amount payable to any Lender or the Agent hereunder on
account of such Lender’s Commitment or any of the Loans or the Letters of
Credit, or


 


(iii)                               to require any Lender or the Agent to
make any payment or to forego any interest or other sum payable hereunder, the
amount of which payment or foregone interest or other sum is calculated by
reference to the gross amount of any sum receivable or deemed received by such
Lender or the Agent from the Borrower hereunder, then, and in each such case,
the Borrower will, within fifteen (15) days of demand made by such Lender or
(as the case may be) the Agent at any time and from time to time and as often
as the occasion therefor may arise, pay to such Lender or the Agent such
additional amounts as such Lender or the Agent shall determine in good faith to
be sufficient to compensate such Lender or the Agent for such additional cost,
reduction, payment or foregone interest or other sum.  Each Lender and the Agent in determining such
amounts may use any reasonable averaging and attribution methods generally
applied by such Lender or the Agent.


 


§4.9                          Capital Adequacy. 
If after the date hereof any Lender determines that (a) the adoption of
or change in any law, rule, regulation or guideline regarding capital requirements
for banks or bank holding companies or any change in the interpretation or
application thereof by any governmental authorityGovernmental Authority charged with the administration thereof, or (b)
compliance by such Lender or its parent bank holding company with any
guideline, request 


 


57

















 


or directive of any such
entity regarding capital adequacy (whether or not having the force of law), has
the effect of reducing the return on such Lender’s or such holding company’s
capital as a consequence of such Lender’s commitment to make Loans or
participate in Letters of Credit hereunder to a level below that which such
Lender or holding company could have achieved but for such adoption, change or
compliance (taking into consideration such Lender’s or such holding company’s
then existing policies with respect to capital adequacy and assuming the full
utilization of such entity’s capital) by any amount deemed by such Lender to be
material, then such Lender may notify the Borrower thereof.  The Borrower agrees to pay to such Lender the
amount of such reduction in the return on capital as and when such reduction is
determined, upon presentation by such Lender of a statement of the amount
setting forth the Lender’s calculation thereof. 
In determining such amount, such Lender may use any reasonable averaging
and attribution methods generally applied by such Lender.


 


§4.10                    Breakage Costs.  The
Borrower shall pay all Breakage Costs required to be paid by it pursuant to
this Agreement and incurred from time to time by any Lender upon demand within
fifteen (15) days from receipt of written notice from Agent, or such earlier
date as may be required by this Agreement.


 


§4.11                    Default Interest; Late Charge. 
Following the occurrence and during the continuance of any Event of
Default, and regardless of whether or not the Agent or the Lenders shall have
accelerated the maturity of the Loans, all Loans shall bear interest payable on
demand at a rate per annum equal to the sum of the
Base Rate plus fifty (50) basis points (0.5%) plus three percent (3.0%)
above the Base Rate (the “Default Rate”), until such amount shall be paid
in full (after as well as before judgment), and the fee payable with respect to
Letters of Credit shall be increased to a rate equal to three percent (3.0%)
above the Letter of Credit fee that would otherwise be applicable to such time,
or if any of such amounts shall exceed the maximum rate permitted by law, then
at the maximum rate permitted by law.  In
addition, the Borrower shall pay a late charge equal to four percent (4.0%) of
any amount of interest and/or principal payable on the Loans or any other
amounts payable hereunder or under the other Loan Documents, which is not paid
by the Borrower within five (5) Business Days of the date when due (or, in the
case of amounts due at the Revolving Credit Maturity Date or the Term
Loan Maturity Date, as applicable, within fifteen (15) Business Days of
such date).


 


§4.12                    Certificate. 
A certificate setting forth any amounts payable pursuant to §4.7, §4.8,
§4.9, §4.10 or §4.11 and a reasonably detailed explanation of such amounts
which are due, submitted by any Lender or the Agent to the Borrower, shall be prima facie evidence of the amount owed.  Any such Certificate setting forth any amounts
payable pursuant to §4.8 or §4.9 must be delivered to the Agent and the
Borrower within one hundred eighty (180) days after the affected Bank becomes
aware of the basis for any such claim; provided that if such Certificate is not
delivered to the Agent and the Borrower within one hundred eighty (180) days
after the affected Bank becomes aware of the basis for any such claim, such
Bank shall only be entitled to receive payment pursuant to §4.8 or §4.9, as
applicable, with respect to amounts which arose during the one hundred eighty
(180) day period prior to the date such Bank delivered such Certificate to the
Agent and the Borrower.


 


§4.13                    Limitation on Interest. 
Notwithstanding anything in this Agreement or the other Loan Documents
to the contrary, all agreements between or among the Borrower, the Lenders 


 


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and the Agent, whether
now existing or hereafter arising and whether written or oral, are hereby
limited so that in no contingency, whether by reason of acceleration of the
maturity of any of the Obligations or otherwise, shall the interest contracted
for, charged or received by the Lenders exceed the maximum amount permissible
under applicable law.  If, from any
circumstance whatsoever, interest would otherwise be payable to the Lenders in
excess of the maximum lawful amount, the interest payable to the Lenders shall
be reduced to the maximum amount permitted under applicable law; and if from
any circumstance the Lenders shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, an amount
equal to any excessive interest shall be applied to the reduction of the
principal balance of the Obligations and to the payment of interest or, if such
excessive interest exceeds the unpaid balance of principal of the Obligations,
such excess shall be refunded to the Borrower. 
All interest paid or agreed to be paid to the Lenders shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full period until payment in full of the principal of the
Obligations (including the period of any renewal or extension thereof) so that
the interest thereon for such full period shall not exceed the maximum amount
permitted by applicable law.  This Section
shall control all agreements between or among the Borrower, the Lenders and the
Agent.


 


§4.14                    Certain Provisions Relating to Increased
Costs and Non-Funding Lenders.  If a Lender
gives notice of the existence of the circumstances set forth in §4.8 or any
Lender requests compensation for any losses or costs to be reimbursed pursuant
to any one or more of the provisions of §4.3(b) (as a result of the imposition
of U.S. withholding taxes on amounts paid to such Lender under this Agreement),
§4.8 or §4.9, then, upon request of the Borrower, such Lender, as applicable,
shall use reasonable efforts in a manner consistent with such institution’s
practice in connection with loans like the Loan of such Lender to eliminate, mitigate
or reduce amounts that would otherwise be payable by the Borrower under the
foregoing provisions, provided that such action would not be otherwise
prejudicial to such Lender, including, without limitation, by designating
another of such Lender’s offices, branches or affiliates; the Borrower agreeing
to pay all reasonably incurred costs and expenses incurred by such Lender in
connection with any such action. 
Notwithstanding anything to the contrary contained herein, if no Default
or Event of Default shall have occurred and be continuing, and if any Lender (a)
has given notice of the existence of the circumstances set forth in §4.8 or has
requested payment or compensation for any losses or costs to be reimbursed
pursuant to any one or more of the provisions of §4.3(b) (as a result of the
imposition of U.S. withholding taxes on amounts paid to such Lender under this
Agreement), §4.8 or §4.9 and following the request of the Borrower has been
unable to take the steps described above to mitigate such amounts (each, an “Affected
Lender”) or (b) has failed to make available to Agent its pro rata share of any
Loan or participation in a Letter of Credit or Swing Loan and such failure has
not been cured (a “Non-Funding Lender”), then, within thirty (30) days after
such notice or request for payment or compensation or failure to fund, as
applicable, the Borrower shall have the one-time right as to such Affected
Lender or Non-Funding Lender, as applicable, to be exercised by delivery of
written notice delivered to the Agent and the Affected Lender or Non-Funding
Lender, as applicable, within thirty (30) days of receipt of such notice or
failure to fund, as applicable, to elect to cause the Affected Lender or
Non-Funding Lender, as applicable, to transfer its Commitment.  The Agent shall promptly notify the remaining
Lenders that each of such Lenders shall have the right, but not the obligation,
to acquire a portion of the Commitment, pro rata based upon their relevant
Commitment Percentages, of the Affected Lender or Non-Funding 


 


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Lender, as applicable (or
if any of such Lenders does not elect to purchase its pro rata share, then to
such remaining Lenders in such proportion as approved by the Agent).  In the event that the Lenders do not elect to
acquire all of the Affected Lender’s or Non-Funding Lender’s Commitment, then
the Agent shall endeavor to obtain a new Lender to acquire such remaining
Commitment.  Upon any such purchase of
the Commitment of the Affected Lender or Non-Funding Lender, as applicable, the
Affected Lender’s or Non-Funding Lender’s interest in the Obligations and its
rights hereunder and under the Loan Documents shall terminate at the date of
purchase, and the Affected Lender or Non-Funding Lender, as applicable, shall
promptly execute all documents reasonably requested to surrender and transfer
such interest.  The purchase price for
the Affected Lender’s or Non-Funding Lender’s Commitment shall equal any and
all amounts outstanding and owed by the Borrower to the Affected Lender or
Non-Funding Lender, as applicable, including principal, prepayment premium or
fee, and all accrued and unpaid interest or fees.


 


§5.                                COLLATERAL SECURITY; GUARANTORS.


 


§5.1                          Collateral.  The
Obligations shall be secured by a perfected first priority lien and security
interest to be held by the Agent for the benefit of the Lenders on the Collateral,
pursuant to the terms of the Security Documents.


 


§5.2                          Appraisals; Adjusted Value.


 


(a)                                  In the event that Borrower
elects to extend the Maturity Date as provided in §2.11, then the Agent may on
behalf of the Lenders (either in connection with any such extension or at any
time thereafter) obtain a current Appraisal of Three Eldridge Place.  Said Appraisal will be ordered by Agent and
reviewed and approved by the appraisal department of the Agent, in order to
determine the current Appraised Value of Three Eldridge Place, and the Borrower
shall pay to Agent within fifteen (15) days of demand all reasonable costs of
such Appraisal.


 


(b)                                 Notwithstanding the provisions
of §5.2(a), the Agent may obtain new Appraisals or an update to existing
Appraisals with respect to the Mortgaged Properties, or any of them, as the
Agent shall determine (i) at any time that the regulatory requirements of any
Lender generally applicable to real estate loans of the category made under
this Agreement as reasonably interpreted by such Lender shall require more
frequent Appraisals, or (ii) at any time during the continuance of an Event of
Default.  The expense of such Appraisals
and/or updates performed pursuant to this §5.2(b) shall be borne by the
Borrower and payable to Agent within fifteen (15) days of demand; provided the
Borrower shall not be obligated to pay for an Appraisal of a Mortgaged Property
obtained pursuant to this §5.2(b) more often than once in any period of twelve
(12) months.


 


(c)                                  The Borrower acknowledges
that the Agent has the right to approve any Appraisal performed pursuant to
this Agreement.  The Borrower further
agrees that the Lenders and Agent do not make any representations or warranties
with respect to any such Appraisal and shall have no liability as a result of
or in connection with any such Appraisal for statements contained in such
Appraisal, including without limitation, the accuracy and completeness of
information, estimates, conclusions and opinions contained in such Appraisal,
or variance of 


 


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such
Appraisal from the fair value of such property that is the subject of such
Appraisal given by the local tax assessor’s office, or the Borrower’s idea of
the value of such property.


 


§5.3                          Replacement or Addition of
Mortgaged Properties.


 


After the First Amendment Date, the Borrower shall
have the right, subject to the consent of the Agent and the Required Lenders
(which consent may be withheld in their sole and absolute discretion) and the
satisfaction by the Borrower of the conditions set forth in this §5.3, to add
Potential Collateral to the Collateral as part of the Borrowing Base or to
replace any Mortgaged Property which is Collateral in the Borrowing Base with
Potential Collateral.  The Borrower from
time to time after the First Amendment Date may also request that certain Real
Estate of one or more Subsidiary Guarantors (collectively, the “Guarantor
Collateral”) be included as a Mortgaged Property for the purpose of increasing
the Borrowing Base Value or replacing existing Collateral in the Borrowing Base.  In the event the Borrower desires to replace
Collateral or add additional Potential Collateral or Guarantor Collateral to
the Borrowing Base as aforesaid, the Borrower shall provide written notice to the
Agent of such request.  No Guarantor Collateral
or Potential Collateral shall be included as Collateral in the Borrowing Base
unless and until the following conditions precedent shall have been satisfied:


 


(a)                                  such Guarantor Collateral or
Potential Collateral shall be Eligible Real Estate;


 


(b)                                 the owner of any Guarantor
Collateral (and any Subsidiary of Borrower that is an indirect owner of such
Subsidiary Guarantor) shall have executed a Joinder Agreement and satisfied the
conditions of §5.5;


 


(c)                                  prior to or
contemporaneously with such addition, Borrower shall have submitted to Agent a
Compliance Certificate prepared using the financial statements of the Borrower
most recently provided or required to be provided to the Agent under §6.4 or §7.4
and a Borrowing Base Certificate, both prepared on a pro forma basis and
adjusted to give effect to such addition, and shall certify that after giving
effect to such addition, no Default or Event of Default shall exist;


 


(d)                                 the Borrower or the owner of
the Guarantor Collateral or Potential Collateral, as applicable, shall have
executed and delivered to the Agent all Eligible Real Estate Qualification
Documents (which may include a pledge agreement, pledge of distributions,  assignment of interests or an amendment to any
of the same with respect to any direct or indirect interests in the owner of
such Guarantor Collateral), all of which instruments, documents or agreements
shall be in form and substance reasonably satisfactory to the Agent;


 


(e)                                  after giving effect to the
inclusion of such Guarantor Collateral or Potential Collateral, each of the
representations and warranties made by or on behalf of the Borrower or the
Guarantors or any of their respective Subsidiaries contained in this Agreement,
the other Loan Documents or in any document or instrument delivered pursuant to
or in connection with this Agreement shall be true in all material respects
both as of the date as of which it was made and shall also be true as of the
time of the replacement or addition of Mortgaged Properties in the Borrowing
Base, with the same effect as if made at and as of that 


 


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time,
except to the extent of changes resulting from transactions permitted by the
Loan Documents and except as previously disclosed in writing by the Borrower to
Agent and approved by Agent in writing (which disclosures shall be deemed to
amend the schedules and other disclosures delivered as contemplated in this
Agreement (it being understood and agreed that any representation or warranty
which by its terms is made as of a specified date shall be required to be true
and correct only as of such specified date), and no Default or Event of Default
shall have occurred and be continuing (including, without limitation, any
Default under §9.1), and the Agent shall have received a certificate of the
Borrower to such effect; and


 


(f)                                    the
Agent shall have consented to, and Agent shall have received the prior written
consent of the Required Lenders to, the inclusion of such Real Estate as a
Mortgaged Property, which consent may be granted in their sole discretion.


 


Notwithstanding the foregoing, in the event such
Guarantor Collateral or Potential Collateral does not qualify as Eligible Real
Estate, so long as the conditions set forth in clauses (b), (c) and (d) of this
§5.3 have been satisfied, such Guarantor Collateral or Potential Collateral
shall be included as Collateral so long as the Agent shall have received the
prior written consent of each of the Required Lenders to the inclusion of such
Real Estate as a Mortgaged Property.


 


§5.4                          Release of Mortgaged
Property.  Provided no Default or Event
of Default shall have occurred hereunder and be continuing (or would exist
immediately after giving effect to the transactions contemplated by this §5.4),
the Agent shall release a Mortgaged Property from the lien or security title of
the Security Documents encumbering the same upon the request of the Borrower
subject to and upon the following terms and conditions:


 


(a)                                  the Borrower shall deliver
to the Agent written notice of its desire to obtain such release no later than
ten (10) days prior to the date on which such release is to be effected;


 


(b)                                 the Borrower shall submit to
the Agent with such request a Compliance Certificate prepared using the
financial statements of the Borrower most recently provided or required to be
provided to the Agent under §6.4 or §7.4 adjusted in the best good faith
estimate of the Borrower to give effect to the proposed release and
demonstrating that no Default or Event of Default with respect to the covenants
referred to therein shall exist after giving effect to such release;


 


(c)                                  all release documents to be
executed by the Agent shall be in form and substance reasonably satisfactory to
the Agent;


 


(d)                                 the Borrower shall pay all
reasonable costs and expenses of the Agent in connection with such release,
including without limitation, reasonable attorney’s fees;


 


(e)                                  the Borrower shall pay to
the Agent for the account of the Lenders a release price, which payment shall
be applied to reduce the outstanding principal balance of the Loans as provided
in §3.4, in an amount equal to the amount necessary to reduce the outstanding
principal balance of the Loans so that no violation of the covenant set forth
in §9.1 shall occur;


 


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(f)                                    without
limiting or affecting any other provision hereof, any release of a Mortgaged
Property will not cause the Borrower to be in violation of the covenants set
forth in §9; and


 


(g)                                 the Required Lenders shall
have approved such release in their sole discretion in writing; provided,
however, that Required Lender approval shall not be required so long as (i) no
Default or Event of Default exists under this Agreement immediately before such
release or would exist immediately after giving effect to such release, (ii) the
Total Commitment is reduced by 125% of the Allocated Loan Amount associated
with the Mortgaged Property or Mortgaged Properties to be released, and
notwithstanding the terms of §5.4(e), the Borrower shall pay to Agent for the
pro rata accounts of the Lenders, an amount necessary such that the amount of
the outstanding Loans and the Letter of Credit Liabilities do not exceed the
Total Commitment or the Borrowing Base Availability, and (iii) Borrower has
delivered to Agent evidence reasonably satisfactory to Agent that Borrower will
be in pro forma compliance with the covenants set forth in §9 immediately after
giving effect to such release.


 


§5.5                          Additional Guarantors. 
In the event that (i) any Subsidiary
of the Borrower shall satisfy the definition of “Material Subsidiary” after the
date hereof (other than any Subsidiary which is prohibited from guarantying
indebtedness by the express terms of its organizational documents or any
mortgage loan document to which such Subsidiary is party), or (ii) the Borrower shall request that certain Real Estate of a
Subsidiary of Borrower be included as a Mortgaged Property as contemplated by
§5.3 and such Real Estate is approved for inclusion as a Mortgaged Property in
accordance with the terms hereof, the Borrower shall cause each such
Subsidiary (and any entity having an interest
in such Subsidiary) to promptly, but in any event within fifteen (15) Business
Days (as such date may be extended by Agent in its discretion), execute and
deliver to Agent a Joinder Agreement, and such Subsidiary (and each Subsidiary of Borrower having an interest in such Subsidiary)
shall become a Guarantor hereunder and thereunder
(provided that any Subsidiary owning Real Estate to be included as a Mortgaged
Property (and any Subsidiary owning an interest therein) shall be required to
execute and deliver a Joinder Agreement as a condition precedent to such Real
Estate becoming a Mortgaged Property). 
Each such Subsidiary shall be specifically authorized, in accordance
with its respective organizational documents, to be a Guarantor hereunder and
thereunder and to execute the Contribution Agreement and, if such Subsidiary owns a Mortgaged Property or an interest in a
Subsidiary that owns a Mortgaged Property, such Security Documents as Agent
may require.  The Borrower shall further
cause all representations, covenants and agreements in the Loan Documents with
respect to Guarantors to be true and correct with respect to each such
Subsidiary.  In connection with the
delivery of such Joinder Agreement, the Borrower shall deliver to the Agent
such organizational agreements, resolutions, consents, opinions and other
documents and instruments as the Agent may reasonably require.


 


§5.6                          Additional Collateral. 
Promptly, but in any event within fifteen (15) Business Days (as such
date may be extended by Agent in its discretion), following the occurrence of: Intentionally
Omitted.


 


(a)                                  the acquisition of an asset,


 


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(b)                                 any acquisition or creation of a
Subsidiary by REIT or the Borrower (provided that such fifteen (15) Business Day
(as such date may be extended by Agent in its discretion) period shall not
commence unless and until such Subsidiary owns or acquires an asset), or


 


(c)                                  the refinancing, prepayment or repayment
of any indebtedness of any Subsidiary of REIT or the Borrower, whether or not
secured by any Real Estate, which permits, or removes or terminates (without
replacing) any prohibition on, the granting of any pledge of Equity Interests
or Distribution Interests (or any portion thereof) in any such Subsidiary,


 


the Borrower shall, and
shall cause each of its Subsidiaries to, execute and deliver such documents,
instruments, agreements and certificates as the Agent may reasonably request,
including any amendments to or additional Security Documents, in order to grant
to the Agent, for the benefit of the Lenders, the best possible first priority lien
and security interest in as much of such Equity Interests and/or Distribution
Interests (or such portion thereof) as may be granted by the Borrower and any
such Subsidiary (and the Borrower covenants and agrees to, on a commercially
reasonable best efforts basis, enter into loan documentation in connection with
any such refinancing that permits the best possible first priority lien and
security interest in as much of such Equity Interests and/or Distribution
Interests (or such portion thereof) in favor of the Agent and the Lenders).  In connection with the delivery of such documents,
instruments, agreements and certificates, the Borrower shall also deliver to
the Agent such loan documents, organizational agreements, UCC search results, resolutions,
consents, opinions and other documents and instruments as the Agent may
reasonably require.


 


§5.7                          Release of Collateral
(other than Mortgaged Properties); Release of Guarantor.


 


(a)                                  Upon the refinancing or repayment of the
Obligations in full and termination of the obligation to provide additional
Loans or Letters of Credit to the Borrower, then the Agent shall release the
Collateral from the lien and security interest of the Security Documents and to
release the Borrower.


 


(b)                                 Upon (i) the sale, transfer or other
disposition of all or substantially all of the assets of (or interests in) a
Subsidiary of the Borrower (other than a
Subsidiary directly or indirectly owning a Mortgaged Property), in
accordance with the terms of §8.8 or (ii) the incurrence or refinancing of any
Indebtedness of a Subsidiary of the Borrower, the Agent shall, if requested in
writing by the Borrower and provided no Default or Event of Default shall then
be in existence or would occur as a result thereof, release the Collateral
applicable to such Subsidiary from the lien and security interest of the Security
Documents so long as the Agent shall have received (A) documentation reasonably
requested by Agent evidencing such disposition or refinancing, (B) in
connection with any such disposition, evidence that the net cash proceeds from
such disposition are being distributed to the Borrower and (C) a Compliance
Certificate demonstrating that the Borrower is in compliance with the covenants
set forth in §9 immediately before and after giving effect to such release.  The Agent shall, within ten (10) Business
Days of receipt of such documentation and Compliance Certificate, execute and
deliver such documents, instruments and other agreements as may be reasonably
required to evidence and effect such release.  For the avoidance of doubt, this §5.7(b) shall
not apply to the release of a Mortgaged Property.


 


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(c)                                  The Borrower may request in writing that
the Agent release, and upon receipt of such request the Agent shall release
(subject to the terms hereof), a Guarantor from the Guaranty and the other Loan
Documents to which such Guarantor is a party so long as:  (i) no Default or Event of Default shall then
be in existence or would occur as a result of such release; (ii) the Agent
shall have received such written request at least ten (10) Business Days prior
to the requested date of release; (iii) the Borrower shall deliver to Agent
evidence reasonably satisfactory to Agent either that (A) such Guarantor and/or
the Borrower has disposed of or simultaneously with such release will dispose
of its entire interest in such Guarantor or in
the Real Estate of a Subsidiary owned by such Guarantor (provided that such
Subsidiary and such Guarantor promptly dissolves following such disposition of
Real Estate) or that all or substantially all of the assets of such
Guarantor will be disposed of in compliance with the terms of this Agreement,
and if such transaction involves the disposition by such Guarantor of all or
substantially all of its assets, the net cash proceeds from such disposition
are being distributed to the Borrower in connection with such disposition, or (B)
such Guarantor will be the borrower with respect to Secured Debt permitted
under this Agreement, which Indebtedness will be secured by a Lien on the
assets of such Guarantor; and (iv) if such Guarantor
directly or indirectly owns a Mortgaged Property, the terms of §5.4 with
respect to the release of such Mortgaged Property have been satisfied.  Delivery by the Borrower to the Agent of any
such request for a release shall constitute a representation by the Borrower
that the matters set forth in the preceding sentence (both as of the date of
the giving of such request and as of the date of the effectiveness of such
request) are true and correct with respect to such request.  Notwithstanding the foregoing, the provisions
of this §5.45.7(c) shall not apply
to REIT, which may not be released as a Guarantor.


 


§6.                                REPRESENTATIONS AND WARRANTIES.


 


The Borrower represents
and warrants to the Agent and the Lenders as follows.


 


§6.1                          Corporate Authority, Etc.


 


(a)                                  Incorporation; Good Standing.  REIT
is a Maryland corporation duly organized pursuant to articles of incorporation
filed with the Maryland Secretary of State, and is validly existing and in good
standing under the laws of Maryland. 
REIT conducts its business in a manner which enables it to qualify as a
real estate investment trust under, and to be entitled to the benefits of, §856
of the Code, and has elected to be treated as and is entitled to the benefits
of a real estate investment trust thereunder. 
The Borrower is a Texas limited partnership duly organized pursuant to
its certificate of limited partnership filed with the Texas Secretary of State,
and is validly existing and in good standing under the laws of Texas.  The Borrower (i) has all requisite power to
own its property and conduct its business as now conducted and as presently
contemplated, and (ii) is in good standing and is duly authorized to do
business in the jurisdiction of its organization,
in the jurisdictions where the Mortgaged Properties owned by it are located, if
any, and in each other jurisdiction where a failure to be so qualified in
such other jurisdiction could have a Material Adverse Effect.


 


(b)                                 Subsidiaries. 
Each of the Guarantors and each of the Subsidiaries of the Borrower and
the Guarantors (i) is a corporation, limited partnership, general partnership,
limited liability company or trust duly organized under the laws of its State
of organization and is validly 


 


65

















 


existing and in good
standing under the laws thereof, (ii) has all requisite power to own its
property and conduct its business as now conducted and as presently
contemplated and (iii) is in good standing and is duly authorized to do business
in each jurisdiction where it is organized and
where a Mortgaged Property owned by it is located (to the extent required by
applicable law)  and in each other
jurisdiction where a failure to be so qualified could have a Material Adverse
Effect.


 


(c)                                  Authorization. 
The execution, delivery and performance of this Agreement and the other
Loan Documents to which any of the Borrower or any Guarantor is a party and the
transactions contemplated hereby and thereby (i) are within the authority of such
Person, (ii) have been duly authorized by all necessary proceedings on the part
of such Person, (iii) do not and will not conflict with or result in any breach
or contravention of any provision of law, statute, rule or regulation to which such
Person is subject or any judgment, order, writ, injunction, license or permit
applicable to such Person, (iv) do not and will not conflict with or constitute
a default (whether with the passage of time or the giving of notice, or both)
under any provision of the partnership agreement, articles of incorporation or
other charter documents or bylaws of, or any agreement or other instrument
binding upon, such Person or any of its properties, (v) do not and will not
result in or require the imposition of any lien or other encumbrance on any of
the properties, assets or rights of such Person other than the liens and
encumbrances in favor of Agent contemplated by this Agreement and the other
Loan Documents, and (vi) do not, as of the date of execution and delivery
thereof, require the approval or consent of any Person other than those already
obtained and delivered to Agent.


 


(d)                                 Enforceability. 
The execution and delivery of this Agreement and the other Loan
Documents to which any of the Borrower or any Guarantor is a party are valid
and legally binding obligations of such Person enforceable in accordance with
the respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or affecting generally the enforcement of creditors’  rights and general principles of equity.


 


§6.2                          Governmental Approvals. 
The execution, delivery and performance of this Agreement and the other
Loan Documents to which the Borrower or any Guarantor is a party and the
transactions contemplated hereby and thereby do not require the approval or
consent of, or filing or registration with, or the giving of any notice to, any
court, department, board, governmental agency or authority other than those
already obtained, the filing of the Security Documents in the appropriate
records office with respect thereto, and filings after the date hereof of
disclosures with the SEC, or as may be required
hereafter with respect to tenant improvements, repairs or other work with
respect to any Real Estate.


 


§6.3                          Title to Properties.  Except
as indicated on Schedule 6.3 hereto or other adjustments that are not
material in amount, REIT, the Borrower and their respective Subsidiaries own or
lease all of the assets reflected in the consolidated balance sheet of REIT as
of the Balance Sheet Date or acquired or leased since that date (except
property and assets sold or otherwise disposed of in the ordinary course since
that date) subject to no rights of others, including any mortgages, leases
pursuant to which REIT, the Borrower or any of their respective Subsidiaries or
any of their respective Affiliates is the lessee, conditional sales agreements,
title retention agreements, liens or other encumbrances except Permitted Liens.


 


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§6.4                          Financial Statements.  TheAs of the First Amendment Date, (a) the
Borrower has furnished to Agent:  (ai) the consolidated balance sheet of REIT and
its Subsidiaries as of the Balance Sheet Date and the related consolidated
statement of income and cash flow for the calendar year then ended certified by
the chief financial or accounting officer of REIT, (b) as of the Closing
Date,ii) an unaudited statement of Consolidated
Net Operating Income for the period ending September 30, 2007March 31, 2009 reasonably satisfactory in form
to the Agent and certified by the chief financial or accounting officer of REIT
as fairly presenting the Consolidated Net Operating Income for such periods,
and (ciii) certain other financial
information relating to the Borrower, the Guarantors and the Collateral.  Such,
including, without limitation, the Mortgaged Properties; (b) the balance
sheet and statements referred to in clauses (a)(i)
and (a)(ii) have been prepared in accordance with generally accepted
accounting principles and fairly present the consolidated financial condition
of REIT and its Subsidiaries as of such dates and the consolidated results of
the operations of REIT and its Subsidiaries  for such
periods.  There; and (c) there are no liabilities, contingent
or otherwise, of REIT or any of its Subsidiaries involving material amounts not
disclosed in said financial statements and the related notes thereto.


 


§6.5                          No Material Changes. 
Since the Balance Sheet Date or the date of the most recent financial
statements delivered pursuant to §7.4, as applicable, there has occurred no
materially adverse change in the financial condition, prospects or business of REIT,
the Borrower, and their respective Subsidiaries taken as a whole as shown on or
reflected in the consolidated balance sheet of REIT as of the Balance Sheet
Date, or its consolidated statement of income or cash flows for the calendar
year then ended, other than changes in the ordinary course of business that have
not and could not reasonably be expected to have a Material Adverse
Effect.  As of the date hereof, except as
set forth on Schedule 6.5 hereto, there has occurred no materially
adverse change in the financial condition, prospects, operations or business activities
of REIT, the Borrower, or their respective Subsidiaries or any of the Mortgaged Properties from the
condition shown on the statements of income delivered to the Agent pursuant to
§6.4 other than changes in the ordinary course of business that have not had
any materially adverse effect either individually or in the aggregate on the
business, prospects, operation or financial condition of REIT, the Borrower,
and their respective Subsidiaries, considered as a whole, or of any of the Mortgaged Properties.


 


§6.6                          Franchises, Patents, Copyrights, Etc. 
The Borrower, the Guarantors and their respective Subsidiaries possess
all franchises, patents, copyrights, trademarks, trade names, service marks,
licenses and permits, and rights in respect of the foregoing, adequate for the
conduct of their business substantially as now conducted without known conflict
with any rights of others, except where such failure individually or in the
aggregate has not had and could not reasonably be expected to have a Material
Adverse Effect. 
Except as set forth on Schedule 6.6 hereto or in any Mortgage with
respect to any Mortgaged Property other than the Initial Mortgaged Properties,
none of the Mortgaged Properties is owned or operated by Borrower or its
Subsidiaries under or by reference to any trademark, trade name, service mark
or logo, and none of the trademarks, tradenames, service marks or logos are
registered or subject to any license or provision of law limiting their
assignability or use except as specifically set forth on Schedule 6.6 or in any
Mortgage accepted after the First Amendment Date.


 


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§6.7                          Litigation.  Except as
stated on Schedule 6.7, there are no actions, suits, proceedings or
investigations of any kind pending or to the knowledge of the Borrower
threatened against the Borrower, any Guarantor, any of their respective
Subsidiaries before any court, tribunal, arbitrator, mediator or administrative
agency or board which question the validity of this Agreement or any of the
other Loan Documents, any action taken or to be taken pursuant hereto or
thereto, the Collateral or any lien, security title or security interest
created or intended to be created pursuant hereto or thereto, or which if
adversely determined could reasonably be expected to have a Material Adverse
Effect.  Except as set forth on Schedule
6.7, there are no judgments, final orders or awards outstanding against or
affecting the Borrower, any Guarantor, any of their respective Subsidiaries or
any Collateral, individually or in the aggregate, in excess of $1,000,000.00.1,000,000.00, or against or affecting the
Mortgaged Property.


 


§6.8                          No
Material Adverse Contracts, Etc.  None of the Borrower, any Guarantor or any of their
respective Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation that has or is
expected in the future to have a Material Adverse Effect.  None of the Borrower, any Guarantor or any of
their respective Subsidiaries is a party to any contract or agreement that has
or could reasonably be expected to have a Material Adverse Effect.


 


§6.9                          Compliance with Other Instruments, Laws,
Etc.  None of the Borrower, any Guarantor or any of
their respective Subsidiaries is in violation of any provision of its charter
or other organizational documents, bylaws, or any agreement or instrument to
which it is subject or by which it or any of its properties is bound or any
decree, order, judgment, statute, license, rule or regulation, in any of the
foregoing cases in a manner that has had or could reasonably be expected to
have a Material Adverse Effect.


 


§6.10                    Tax Status.  Each of the
Borrower, the Guarantors and their respective Subsidiaries (a) has made or
filed all federal and state income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject or has
obtained an extension for filing, (b) has paid prior to delinquency all taxes
and other governmental assessments and charges shown or determined to be due on
such returns, reports and declarations, except those being contested in good
faith and by appropriate proceedings and (c) has set aside on its books
provisions reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations apply.  Except as set forth on Schedule 6.10, there
are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers or partners of such Person know
of no basis for any such claim.  There
are no audits pending or to the knowledge of the Borrower threatened with
respect to any tax returns filed by the Borrower, any Guarantor or their
respective Subsidiaries.  The taxpayer
identification number for REIT is 68-0509956 and for the Borrower is 14-183660.


 


§6.11                    No Event of Default. 
No Default or Event of Default has occurred and is continuing.


 


§6.12                    Investment Company Act. 
None of the Borrower, the Guarantors or any of their respective
Subsidiaries is an “investment company”, or an “affiliated company” or a “principal
underwriter” of an “investment company”, as such terms are defined in the
Investment Company Act of 1940.


 


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§6.13                    Intentionally Omitted.


 


§6.14                    Setoff, Etc. 
The Collateral and the rights of the Agent and the Lenders with respect
to the Collateral are not subject to any setoff, claims, withholdings or other
defenses by the Borrower or any of their Subsidiaries or Affiliates or, to the
best knowledge of the Borrower, any other Person other than Permitted Liens
described in §8.2(i)(A), (v) and (vi).


 


§6.15                    Certain Transactions. 
Except as disclosed on Schedule 6.146.15 hereto, none of the partners, officers, trustees, managers,
members, directors, or employees of the Borrower, any Guarantor or any of their
respective Subsidiaries is, nor shall any such Person become, a party to any
transaction with the Borrower, any Guarantor or any of their respective
Subsidiaries or Affiliates (other than for services as partners, managers,
members, employees, officers and directors), including any agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any partner, officer, trustee, director or such employee or, to the
knowledge of the Borrower, any corporation, partnership, trust or other entity
in which any partner, officer, trustee, director, or any such employee has a
substantial interest or is an officer, director, trustee or partner, which are
on terms less favorable to the Borrower, a Guarantor or any of their respective
Subsidiaries than those that would be obtained in a comparable arms-length
transaction.


 


§6.16                    Employee Benefit Plans.  The
Borrower, each Guarantor and each ERISA Affiliate has fulfilled its obligation,
if any, under the minimum funding standards of ERISA and the Code with respect
to each Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan
and is in compliance in all material respects with the presently applicable
provisions of ERISA and the Code with respect to each Employee Benefit Plan,
Multiemployer Plan or Guaranteed Pension Plan. 
Neither the Borrower, any Guarantor nor any ERISA Affiliate has (a) sought
a waiver of the minimum funding standard under §412 of the Code in respect of
any Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan, (b) failed
to make any contribution or payment to any Employee Benefit Plan, Multiemployer
Plan or Guaranteed Pension Plan, or made any amendment to any Employee Benefit
Plan, Multiemployer Plan or Guaranteed Pension Plan, which has resulted or
could result in the imposition of a Lien or the posting of a bond or other
security under ERISA or the Code, or (c) incurred any liability under Title IV
of ERISA other than a liability to the PBGC for premiums under §4007 of ERISA.  None of the assets of REIT, the Borrower or
any of their respective Subsidiaries,
including, without limitation, any Mortgaged Property, constitutes a “plan
asset” of any Employee Plan, Multiemployer Plan or Guaranteed Pension Plan.


 


§6.17                    Disclosure.  All of the
representations and warranties made by or on behalf of the Borrower, the
Guarantors and their respective Subsidiaries in this Agreement and the other
Loan Documents or any document or instrument delivered to the Agent or the
Lenders pursuant to or in connection with any of such Loan Documents are true
and correct in all material respects, and neither the Borrower nor any
Guarantor has failed to disclose such information as is necessary to make such
representations and warranties not misleading. 
All information contained in this Agreement, the other Loan Documents or
otherwise furnished to or made available to the Agent or the Lenders by or on
behalf of the Borrower, any Subsidiary or any Guarantor, as supplemented to
date, is and, when delivered, will be true and correct in all material respects
and, 


 


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as supplemented to date,
does not, and when delivered will not, contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
contained therein not misleading.  The
written information, reports and other papers and data with respect to the
Borrower, any Subsidiary, any Guarantor or the Collateral, including, without limitation, the Mortgaged Properties (other
than projections and estimates) furnished to the Agent or the Lenders in
connection with this Agreement or the obtaining of the Commitments of the
Lenders hereunder was, at the time so furnished, complete and correct in all
material respects, or has been subsequently supplemented by other written
information, reports or other papers or data, to the extent necessary to give
in all material respects a true and accurate knowledge of the subject matter in
all material respects; provided that such representation shall not apply
to (a) the accuracy of any appraisal, title commitment, survey, or engineering
and environmental reports prepared by third parties or legal conclusions or analysis
provided by the Borrower’s or Guarantor’s counsel (although the Borrower and
the Guarantors have no reason to believe that the Agent and the Lenders may not
rely on the accuracy thereof) or (b) budgets, projections and other
forward-looking speculative information prepared in good faith by the Borrower
(except to the extent the related assumptions were when made manifestly
unreasonable).


 


§6.18                    Place of Business. 
The principal place of business of the Borrower is 15601 Dallas Parkway,
Suite 600, Addison, Texas 75001-6206.


 


§6.19                    Regulations T, U and X. 
No portion of any Loan is to be used for the purpose of purchasing or
carrying any “margin security” or “margin stock” as such terms are used in
Regulations T, U and X of the Board of Governors of the Federal Reserve System,
12 C.F.R. Parts 220, 221 and 224.  Neither
the Borrower nor any Guarantor is engaged, nor will it engage, principally or
as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any “margin security” or “margin stock” as
such terms are used in Regulations T, U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Parts 220, 221 and 224.


 


§6.20                    Environmental Compliance. 
The Borrower has taken all commercially reasonable steps to investigate
the past and present conditions and usage of the Real Estate and the operations
conducted thereon and, to the best of Borrower’s knowledge and belief, except
as specifically set forth (i) in the written environmental site assessment
reports of an Environmental Engineer provided to the Agent (A) in the case of the Initial Mortgaged Properties, as of the First
Amendment Date, or (B) with respect to other Real Estate owned as of the date
hereof, on or before the date hereof, or in the case of Real Estate (other than the Initial Mortgaged Properties, if
any) acquired after the date hereof, the environmental site assessment
reports with respect thereto provided to the Agent, or (ii) on Schedule 6.196.20(c) or (d), makes the
following representations and warranties:


 


(a)                                  None of the Borrower, the Guarantors or
their respective Subsidiaries nor any operator of the Real Estate, nor any
tenant or operations thereon, is in violation, or alleged violation, of any
judgment, decree, order, law, license, rule or regulation pertaining to
environmental matters, including without limitation, those arising under any
Environmental Law, which violation (i) involves
Real Estate (other than the Mortgaged
Properties) and has had or could reasonably be expected to have a Material
Adverse Effect or (ii) involves a Mortgaged
Property.


 


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(b)                                 None of the Borrower, the Guarantors nor
any of their respective Subsidiaries has received written notice from any third
party including, without limitation, any federal, state or local
governmental authorityGovernmental Authority,
(i) that it has been identified by the United States Environmental Protection
Agency (“EPA”) as a potentially responsible party under CERCLA with respect to
a site listed on the National Priorities List, 40 C.F.R. Part 300 Appendix B
(1986); (ii) that any Hazardous Substance(s) which it has generated,
transported or disposed of have been found at any site at which a federal,
state or local agency or other third party has conducted or has ordered that
the Borrower, any Guarantor or any of their respective Subsidiaries conduct a
remedial investigation, removal or other response action pursuant to any
Environmental Law; or (iii) that it is or shall be a named party to any claim,
action, cause of action, complaint, or legal or administrative proceeding (in
each case, contingent or otherwise) arising out of any third party’s incurrence
of costs, expenses, losses or damages of any kind whatsoever in connection with
the release of Hazardous Substances, which in any case (i) involves Real Estate (other than
the Mortgaged Properties) and has had or could reasonably be expected to
have a Material Adverse Effect or (ii) involves
a Mortgaged Property.


 


(c)                                  (i) no portion of the Real Estate has
been used for the handling, processing, storage or disposal of Hazardous
Substances except in accordance with applicable Environmental Laws, and no
underground tank or other underground storage receptacle for Hazardous
Substances is located on any portion of the Real Estate except those which are
being operated and maintained in compliance with Environmental Laws; (ii) in
the course of any activities conducted by the Borrower, the Guarantors, their
respective Subsidiaries or the tenants and operators of their properties, no
Hazardous Substances have been generated or are being used on the Real Estate
except in the ordinary course of Borrower’s, the Guarantors’ and their
respective Subsidiaries’ respective businesses and in accordance with
applicable Environmental Laws; (iii) there has been no past or present Release
or threatened Release of Hazardous Substances on, upon, into or from the Real
Estate, which Release would have a material adverse effect on the value of such
Real Estate or adjacent properties, which Release has had or could reasonably
be expected to have a Material Adverse Effect; (iv) there have been no Releases
on, upon, from or into any real property in the vicinity of any of the Real
Estate which, through soil or groundwater contamination, may have come to be
located on, and which could be reasonably anticipated to have a material adverse
effect on the value of, the Real Estate; and (v) any Hazardous Substances that
have been generated on any of the Real Estate have been transported off-site in
accordance with all applicable Environmental Laws (except with respect to the
foregoing in this §6.196.20(c) as to
any Real Estate (other than the Mortgaged
Properties) where the foregoing has not had or could not reasonably be
expected to have a Material Adverse Effect).


 


(d)                                 none of the Borrower, the Guarantors,
their respective Subsidiaries nor the Real Estate is subject to any applicable
Environmental Law requiring the performance of Hazardous Substances site
assessments, or the removal or remediation of Hazardous Substances, or the
giving of notice to any governmental agency or the recording or delivery to
other Persons of an environmental disclosure document or statement in each case
by virtue of the transactions set forth herein and contemplated hereby, or as a
condition to the recording of the Mortgages or
to the effectiveness of any other transactions contemplated hereby except
for such matters that shall be complied with as of the ClosingFirst Amendment Date.


 


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(e)                                  There are no existing or closed sanitary
landfills, solid waste disposal sites, or hazardous waste treatment, storage or
disposal facilities (i) on or affecting the
Real Estate (other than the Mortgaged
Properties) except where such existence has not had or could not be
reasonably be expected to have a Material Adverse Effect, or (ii) on or affecting a Mortgaged Property.


 


(f)                                    The Borrower has not received any written
notice of any claim by any party that any use, operation, or condition of the
Real Estate has caused any nuisance or any other liability or adverse condition
on any other property which as to any Real Estate (other than the Mortgaged Properties) has had or could reasonably be
expected to have a Material Adverse Effect, nor is there any basis for such a
claim.


 


§6.21                    Subsidiaries; Organizational Structure.  Schedule
6.206.21(a) sets forth,
as of the date hereof, all of the Subsidiaries of REIT, the form and
jurisdiction of organization of each of the Subsidiaries, and REIT’s direct and
indirect ownership interests therein.  Schedule
6.206.21(b) sets forth,
as of the date hereof, all of the Unconsolidated Affiliates of REIT and its
Subsidiaries, the form and jurisdiction of organization of each of the Unconsolidated
Affiliates, REIT’s or its Subsidiary’s ownership interest therein and the other
owners of the applicable Unconsolidated Affiliate.  No Person owns any legal, equitable or
beneficial interest in any of the Persons set forth on Schedules 6.206.21(a) and 6.206.21(b) except as set forth on such
Schedules.


 


§6.22                    Leases. 
The Borrower has delivered to the Agent true copies of the Leases and
any amendments thereto relating to each Mortgaged Property required to be
delivered as a part of the Eligible Real Estate Qualification Documents as of
the date hereof.  An accurate and complete
Rent Roll as of the date of inclusion of each Mortgaged Property in the
Borrowing Base with respect to all Leases of any portion of the Mortgaged
Property has been provided to the Agent. 
The Leases reflected on such Rent Roll constitute as of the date thereof
the sole agreements relating to leasing or licensing of space at such Mortgaged
Property and in the Building relating thereto, other than subleases entered
into by the tenants under such Leases.  Except
as reflected on such Rent Roll or on Schedule 6.22 or in any applicable Lease (except
with respect to rent credits or rent abatements in effect as of the First
Amendment Date), no tenant under any Lease is entitled to any free rent,
partial rent, rebate of rent payments, credit, offset or deduction in rent,
including, without limitation, lease support payments, lease buy-outs or
abatements or credits due to defaults under such Lease or the occurrence of any
other event under such Lease.  Except as
set forth in Schedule 6.22, the Leases reflected therein are, as of the date of
inclusion of the applicable Mortgaged Property in the Borrowing Base, in full
force and effect in accordance with their respective terms, without any payment
default or any other material default thereunder, nor are there any defenses,
counterclaims, offsets, concessions or rebates available to any tenant
thereunder, and, except as reflected in Schedule 6.22, neither the Borrower nor
any Guarantor has given or made, any notice of any payment or other material
default, or any claim, which remains uncured or unsatisfied, with respect to
any of the Leases, and to the best of the knowledge and belief of the Borrower,
there is no basis for any such claim or notice of default by any tenant.  Except as reflected in Schedule 6.22, no
property, other than the Mortgaged Property which is the subject of the
applicable Lease, is necessary to comply with the requirements (including,
without limitation, parking requirements) contained in such Lease.


 


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§6.23                    Property.  Subject to Schedule
6.21, (i6.23, (i) all of the
Mortgaged Properties, and all major building systems located thereon, are (or
with respect to Three Eldridge Place, upon completion of construction will be) structurally
sound, in good condition and working order and free from material defects,
subject to ordinary wear and tear, (ii) all of the other Real Estate of the Borrower, the Guarantors and their
respective Subsidiaries is structurally sound, in good condition and working
order, subject to ordinary wear and tear, except for such portion of such Real
Estate which is not occupied by any tenant and where such defects have not had
and could not reasonably be expected to have a Material Adverse Effect, (iiiii) the Real Estate, and the use and
operation thereof, is in material compliance with all applicable federal and
state law and governmental regulations and any local ordinances, orders or
regulations, including without limitation, laws, regulations and ordinances
relating to zoning, building codes, subdivision, fire protection, health,
safety, handicapped access, historic preservation and protection, wetlands and tidelands
(but excluding for purposes of this §6.21,6.23,
Environmental Laws) except where a failure to so comply as to Real Estate other than the Mortgaged Properties has not and
could not reasonably be expected to have a Material Adverse Effect, (iiiiv) all water, sewer, electric, gas, telephone and
other utilities necessary for the use and operation of the Mortgaged Properties
are installed to the property lines of the Mortgaged Properties through
dedicated public rights of way or through perpetual private easements approved
by the Agent with respect to which the applicable Mortgage creates a valid and
enforceable first lien and, except in the case of drainage facilities, are
connected to the Building located thereon with valid permits and are adequate
to service the Building in compliance with applicable law, (v) the streets
abutting the Mortgaged Properties are dedicated and accepted public roads, to
which the Mortgaged Properties have direct access by trucks and other motor
vehicles and by foot, or are perpetual private ways (with direct access by
trucks and other motor vehicles and by foot to public roads) to which the
Mortgaged Properties have direct access approved by the Agent and with respect
to which the applicable Mortgage creates a valid and enforceable first lien, (vi)
sufficient private ways providing access to the Mortgaged Properties are zoned
in a manner which will permit access to the Building over such ways by trucks
and other commercial and industrial vehicles, (vii) there are no unpaid or
outstanding real estate or other taxes or assessments on or against any of the
Real Estate which are payable by the Borrower, any Guarantor or any of their
respective Subsidiaries (except only real estate or other taxes or assessments,
that are not yet delinquent or are being protested as permitted by this
Agreement), (ivviii) each Real
Estate asset is separately assessed for purposes of real estate tax assessment and
payment, (vix) there are no unpaid
or outstanding real estate or other taxes or assessments on or against any
other property of the Borrower, the Guarantors or any of their respective
Subsidiaries which are payable by any of such Persons in any material amount
(except only real estate or other taxes or assessments, that are not yet
delinquent or are being protested as permitted by this Agreement), (vix) there are no pending, or to the knowledge
of the Borrower, threatened or contemplated, eminent domain proceedings against
any Mortgaged Property or any material portion
of any other Real Estate, (viixi)
none of the Mortgaged Property or any material
portion of any other Real Estate is now damaged as a result of any fire,
explosion, accident, flood or other casualty, (viiixii) none of the Borrower, the Guarantors or any of their respective
Subsidiaries has received any outstanding notice from any insurer or its agent
requiring performance of any work with respect to any of the Real Estate or
canceling or threatening to cancel any policy of insurance, and each of the
Real Estate assets complies with the
material requirements of all of the Borrower’s, Guarantors’ and their
respective Subsidiaries’ insurance carriers and, (ixxiii) no person or
entity has any right or 


 


73

















 


option to acquire any
Real Estate or any Building thereon or any portion thereof or interest therein,
except for certain tenants of such Real Estate not
constituting Mortgaged Properties pursuant to the terms of their Leases and
tenants in common under applicable tenant in common agreements, (xiv) neither the Borrower nor any Subsidiary
Guarantor is a party to any Management Agreements for any of the Mortgaged
Properties, (xv) to the best knowledge of the Borrower and any Subsidiary
Guarantors, there are no material claims or any bases for material claims in
respect of any Mortgaged Property or its operation by any party to any service
agreement or Management Agreement, and (xvi) there are no material agreements
pertaining to any Mortgaged Property, any Building thereon or the operation or
maintenance of either thereof other than as described in this Agreement
(including the Schedules hereto) or the Title Policies.


 


§6.24                    Brokers.  None of REIT,
the Borrower nor any of their respective Subsidiaries has engaged or otherwise
dealt with any broker, finder or similar entity in connection with this
Agreement or the Loans contemplated hereunder.


 


§6.25                    Other Debt.  As of the date
hereof,First Amendment Date, (a) none
of the Borrower, any Guarantor nor any of their respective Subsidiaries is in
default of (i) the payment of any Recourse Indebtedness or, (ii) the payment of any Indebtedness that individually
or in the aggregate has an outstanding principal balance in excess of
$30,000,00.00, or (iii) the performance of any material obligation under
any related agreement, mortgage, deed of trust, security agreement, financing
agreement or indenture to which any of them is a party, and (b) no Indebtedness of the Borrower, any Guarantor or any of their
respective Subsidiaries has been accelerated.  Neither the Borrower nor any Guarantor is a
party to or bound by any agreement, instrument or indenture that may require
the subordination in right or time or payment of any of the Obligations to any
other indebtedness or obligation of the Borrower or any Guarantor.  Schedule 6.236.25 hereto sets forth all agreements,
mortgages, deeds of trust, financing agreements or other material agreements
binding upon the Borrower and each Guarantor or their respective properties and
entered into by the Borrower and/or such Guarantor as of the date of this
AgreementFirst Amendment Date with
respect to any Indebtedness of the Borrower or any Guarantor in an amount
greater than $1,000,000.00, and the Borrower has provided the Agent with such
true, correct and complete copies thereof as Agent has requested.


 


§6.26                    Solvency.  As of the ClosingFirst Amendment Date and after giving effect
to the transactions contemplated by this Agreement and the other Loan
Documents, including all Loans made or to be made hereunder, neither the
Borrower nor any Guarantor is insolvent on a balance sheet basis such that the
sum of such Person’s assets exceeds the sum of such Person’s liabilities, the Borrower
and each Guarantor is able to pay its debts as they become due, and the
Borrower and each Guarantor has sufficient capital to carry on its business.


 


§6.27                    No Bankruptcy Filing.  Neither
the Borrower nor any Guarantor is contemplating either the filing of a petition
by it under any state or federal bankruptcy or insolvency laws or for the liquidation of its assets or property,
and the Borrower has no knowledge of any Person contemplating the filing of any
such petition against it.


 


§6.28                    No Fraudulent Intent. 
Neither the execution and delivery of this Agreement or any of the other
Loan Documents nor the performance of any actions required hereunder or
thereunder is being undertaken by the Borrower, any Guarantor or any of their
respective 


 


74

















 


Subsidiaries with or as a
result of any actual intent by any of such Persons to hinder, delay or defraud
any entity to which any of such Persons is now or will hereafter become
indebted.


 


§6.29                    Transaction in Best Interests of Borrower
and Guarantors; Consideration.  The
transaction evidenced by this Agreement and the other Loan Documents is in the
best interests of the Borrower, each Guarantor and their respective
Subsidiaries.  The direct and indirect
benefits to inure to the Borrower, each Guarantor and their respective
Subsidiaries pursuant to this Agreement and the other Loan Documents constitute
more than “reasonably equivalent value” (as such term is used in §548 of the
Bankruptcy Code) and “valuable consideration,” “fair value,” and “fair
consideration,” (as such terms are used in any applicable state fraudulent
conveyance law), in exchange for the benefits to be provided by the Borrower,
the Guarantors and their respective Subsidiaries pursuant to this Agreement and
the other Loan Documents, and but for the willingness of each Guarantor to guaranty
the Loan, the Borrower would be unable to obtain the financing contemplated
hereunder which financing will enable the Borrower, each Guarantor and their
respective Subsidiaries to have available financing to conduct and expand their
business.


 


§6.30                    Contribution Agreement. 
The Borrower and the Guarantors have executed and delivered the
Contribution Agreement, and the Contribution Agreement constitutes the valid
and legally binding obligations of such parties enforceable against them in
accordance with the terms and provisions thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors’ rights and
except to the extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding therefor may be brought.


 


§6.31                    Representations and Warranties of
Guarantors.  Borrower has no knowledge
that any of the representations or warranties of the Guarantors contained in
the Mortgages, the Assignments of Leases and Rents or any other Loan Document
are untrue or inaccurate in any material respect.


 


§6.32                    OFAC.  None of the
Borrower or the Guarantors (i) is (or will be) a person with whom any Lender is
restricted from doing business under OFAC (including, those Persons named on
OFAC’s Specially Designated and Blocked Persons list) or under any statute,
executive order (including the September 24, 2001 Executive Order Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism), or other governmental action or (ii) is engaged
(or will engage) in any dealings or transactions or otherwise be associated
with such persons.  In addition, the Borrower
hereby agrees to provide to the Lenders any additional information that a
Lender reasonably deems necessary from time to time in order to ensure compliance
with all applicable laws concerning money laundering and similar activities.


 


§6.33                    Three Eldridge Place.  The only work to be performed under the
Eldridge Construction Contract is the Construction of the Improvements.  As of the First Amendment Date, the costs
remaining to be incurred in connection with the completion of the Improvements
under the Eldridge Construction Contract, including the disbursement of any
retainage, is $15,880,132.00.


 


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§7.                                AFFIRMATIVE COVENANTS.


 


The Borrower covenants
and agrees that, so long as any Loan, Note or Letter of Credit is outstanding
or any Lender has any obligation to make any Loans or issue Letters of Credit:


 


§7.1                          Punctual Payment. 
The Borrower will duly and punctually pay or cause to be paid the
principal and interest on the Loans and all interest and fees provided for in
this Agreement, all in accordance with the terms of this Agreement and the
Notes, as well as all other sums owing pursuant to the Loan Documents.


 


§7.2                          Maintenance of Office. 
The Borrower and each Guarantor will maintain their respective chief
executive office at 15601 Dallas Parkway, Suite 600, Addison, Texas 75001-6206,
or at such other place in the United States of America as the Borrower or any
Guarantor shall designate upon thirty (30) days prior written notice to the
Agent and the Lenders, where notices, presentations and demands to or upon the
Borrower or such Guarantor in respect of the Loan Documents may be given or
made.


 


§7.3                          Records and Accounts. 
The Borrower and each Guarantor will (a) keep, and cause each of their
respective Subsidiaries to keep true and accurate records and books of account
in which full, true and correct entries will be made in accordance with GAAP
and (b) maintain adequate accounts and reserves for all taxes (including income
taxes), depreciation and amortization of its properties and the properties of
their respective Subsidiaries, contingencies and other reserves.  Neither the Borrower, any Guarantor nor any
of their respective Subsidiaries shall, without the prior written consent of
the Agent, (x) except as may be required by GAAP or by law, make any material
change to the accounting policies/principles used by such Person in preparing
the financial statements and other information described in §6.4 or §7.4, or (y)
change its fiscal year.  Agent and the
Lenders acknowledge that REIT’s fiscal year is a calendar year.


 


§7.4                          Financial Statements, Certificates and
Information.  The Borrower will deliver or cause to be
delivered to the Agent with sufficient copies for each of the Lenders:


 


(a)                                  (i) within fifteen (15) days of the
filing of REIT’s Form 10-K with the SEC, but in any event not later than one
hundred twenty (120) days after the end of each calendar year, the audited
Consolidated balance sheet of REIT and its Subsidiaries at the end of such
year, and the related audited consolidated statements of income, changes in
capital and cash flows for such year, setting forth in comparative form the
figures for the previous fiscal year and all such statements to be in
reasonable detail, prepared in accordance with GAAP, together with a
certification by the chief financial officer or accounting officer of REIT, on
its behalf, that the information contained in such financial statements fairly
presents the financial position of REIT and its Subsidiaries, and accompanied
by an auditor’s report prepared without qualification as to the scope of the
audit by a nationally recognized accounting firm reasonably approved by Agent,
and (ii) within a reasonable period of time following request therefor, any
other information the Lenders may reasonably request to complete a financial
analysis of REIT and its Subsidiaries;


 


(b)                                 within fifteen (15) days of the filing of
REIT’s Form 10-Q with the SEC, if applicable, but in any event not later than sixty
(60) days after the end of each calendar quarter of each year, copies of the
unaudited consolidated balance sheet of REIT and its Subsidiaries, as 


 


76

















 


at the end of such
quarter, and the related unaudited consolidated statements of income and cash
flows for the portion of REIT’s fiscal year then elapsed, all in reasonable
detail and prepared in accordance with GAAP, together with a certification by
the chief financial officer or accounting officer of REIT, on its behalf, that
the information contained in such financial statements fairly presents the
financial position of REIT and its Subsidiaries on the date thereof (subject to
year-end adjustments);


 


(c)                                  simultaneously with the delivery of the
financial statements referred to in subsections (a) and (b) above, a statement
(a “Compliance Certificate”) certified by the chief financial officer or chief
accounting officer of REIT, on its behalf, in the form of Exhibit GJ hereto (or in such other form as the Agent
may approve from time to time) setting forth in reasonable detail computations
evidencing compliance or non-compliance (as the case may be) with the covenants
contained in §9 and the other covenants described in such certificate and (if
applicable) setting forth reconciliations to reflect changes in GAAP since the
Balance Sheet Date.  Borrower shall submit with the Compliance Certificate a Borrowing Base
Certificate in the form of Exhibit I attached hereto (a “Borrowing Base
Certificate”) pursuant to which the Borrower shall calculate the amount of the
Borrowing Base Value and the Borrowing Base Availability as of the end of the
immediately preceding calendar quarter.  All
income, expense and value associated with Real Estate or other Investments
disposed of during any quarter will be eliminated from calculations, where
applicable.  The Compliance Certificate
shall be accompanied by copies of the statements of Funds from Operations and Net
Operating Income for such calendar quarter, including,
without limitation, Net Operating Income for each of the Mortgaged Properties, prepared
on a basis consistent with the statements furnished to the Agent prior to the
date hereof and otherwise in form and substance reasonably satisfactory to the
Agent, together with a certification by the chief financial officer or chief
accounting officer of REIT, on its behalf, that the information contained in
such statement fairly presents the Funds from Operations and Net Operating
Income, including, without limitation, the Net
Operating Income of each of the Mortgaged Properties, for such periods;


 


(d)                                 simultaneously with the delivery of the
financial statements referred to in clause (a) above, the statement of all contingent
liabilities involving amounts of $1,000,000.00 or more of the REIT and its
Subsidiaries which are not reflected in such financial statements or referred
to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent
obligations in respect of the indebtedness of others, and obligations to
reimburse the issuer in respect of any letters of credit);


 


(e)                                  simultaneously with the
delivery of the financial statements referred to in subsections (a) and (b) above,
(i) a Rent Roll for each of the Mortgaged Properties and a summary thereof in
form satisfactory to Agent as of the end of each calendar quarter (including
the fourth calendar quarter in each year), together with a listing of each
tenant that has taken occupancy of such Mortgaged Property during each calendar
quarter (including the fourth calendar quarter in each year), (ii) an operating
statement for each of the Mortgaged Properties for each such calendar quarter
and year to date and a consolidated operating statement for the Mortgaged
Properties for each such calendar quarter and year to date (such statements and
reports to be in form reasonably satisfactory to Agent), and (iii) a copy of
each Lease or amendment to any Lease entered into with respect to a Mortgaged
Property during such calendar quarter (including the fourth calendar quarter in
each year);


 


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(f)                                    (e) promptly following a request by the Agent, as of such
date or for such period or periods of time as Agent may reasonably request, (i)
a Rent Roll for each Real Estate asset (other
than the Mortgaged Properties) and a summary thereof in form satisfactory
to Agent, together with a listing of each tenant that has taken occupancy of
such Real Estate, (ii) an operating statement for each Real Estate asset (other than the Mortgaged Properties) and a
consolidated operating statement for thesuch
Real Estate assets (such statements and reports to be in form reasonably
satisfactory to Agent), and (iii) a copy of each Lease or amendment to any
Lease entered into with respect to a Real Estate asset (other than the Mortgaged Properties);


 


(g)                                 (f) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a statement (i) listing
the Real Estate owned by REIT, the Borrower and their respective Subsidiaries
(or in which REIT, the Borrower or any of their respective Subsidiaries owns an
interest) and stating the location thereof, the date acquired and the
acquisition cost, (ii) listing the Indebtedness of REIT, the Borrower and their
respective Subsidiaries (excluding Indebtedness of the type described in
§8.1(b)-(e)), which statement shall include, without limitation, a statement of
the original principal amount of such Indebtedness and the current amount
outstanding, the holder thereof, the maturity date and any extension options,
the interest rate, the collateral provided for such Indebtedness and whether
such Indebtedness is Recourse Indebtedness or Non-Recourse Indebtedness, (iii) listing
the properties of REIT, the Borrower and their Subsidiaries which are Development
Properties and providing a brief summary of the status of such development, and
(iv) attaching copies of any new material mortgage loan documents and amendments
to existing mortgage loan documents entered into by any Company subsequent to
the date of this Agreement or the last statement delivered pursuant to this
§7.4(fg), whichever is later;


 


(h)                                 (g) contemporaneously with the filing or mailing thereof, copies
of all material of a financial nature, reports or proxy statements sent to the owners
of the Borrower or REIT;


 


(i)                                     (h) promptly following
Agent’s request, after they are filed with the Internal Revenue Service,
copies of all annual federal income tax returns and amendments thereto of the
Borrower and REIT;


 


(j)                                     (i) promptly upon the filing hereof, copies of any
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and any annual, quarterly or monthly
reports and other statements and reports which the Borrower or REIT shall file
with the SEC;


 


(k)                                  (j) notice of any audits pending or threatened in writing with
respect to any tax returns filed by the Borrower or REIT promptly following notice
of such audit;


 


(l)                                     evidence
reasonably satisfactory to Agent of the timely payment of all real estate taxes
for the Mortgaged Properties;


 


(m)                               (k) within seven (7) Business Days of notice or receipt,
copies of any and all notices of default under any of the organizational
agreements of any Company in which the 


 


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Borrower or a Pledgor is
a member, shareholder or partner or of any failure by the Borrower or such
Pledgor to perform any obligation under any of such organizational agreements;


 


(n)                                 (l) promptly upon receipt thereof, copies of any and all
notices of default under any loan document securing or evidencing a mortgage
loan made to the Borrower or any of its Subsidiaries secured by a Lien on Real
Estate, if such mortgage loan (i) constitutes
Recourse Indebtedness, (ii) constitutes Indebtedness and individually or in the
aggregate has an outstanding principal balance in excess of $30,000,000.00, or (iii)
has been accelerated;


 


(o)                                 (m) within five (5) Business Days of becoming aware of the
occurrence thereof, notice of and a description of any material reduction,
dilution or diminution of any interest of the Borrower or a Pledgor in any of
the Companies;


 


(p)                                 (n) not later than January 31 of each year, a budget and
business plan for the Borrower and its Subsidiarieseach Mortgaged Property for the then-current calendar year; and


 


(q)                                 (o) from time to time such other financial data and
information in the possession of REIT, the Borrower or their respective
Subsidiaries (including without limitation auditors’ management letters, status
of litigation or investigations against REIT, the Borrower or any of their
respective Subsidiaries and any settlement discussions relating thereto (to the
extent that disclosure of any such letters, litigation or investigation status
or settlement discussions would not waive any applicable privilege), property
inspection and environmental reports and information as to zoning and other
legal and regulatory changes affecting the Borrower or any of its Subsidiaries)
as the Agent may reasonably request; and


 


(r)                                    on or
before the fifth (5th) day of each month (until the Eldridge Reserve has been
released as provided in §7.24(b)), a date down endorsement to the Title Policy
for Three Eldridge Place in form and substance reasonably satisfactory to Agent.


 


Any material to be delivered pursuant to this §7.4 may
be delivered electronically directly to Agent and the Lenders provided that
such material is in a format reasonably acceptable to Agent, and such material
shall be deemed to have been delivered to Agent and the Lenders upon Agent’s
receipt thereof.  Upon the request of
Agent, the Borrower shall deliver paper copies thereof to Agent and the
Lenders.  The Borrower authorizes Agent and
Arranger to disseminate any such materials through the use of Intralinks,
SyndTrak or any other electronic information dissemination system, and the
Borrower releases Agent and the Lenders from any liability in connection
therewith.  Unless otherwise requested by
Agent, any materials to be delivered pursuant to §7.4(gh) or (ij)
may be delivered to Agent by posting such materials to the Borrower’s website
(at www.berhingerharvardbehringerharvard.com)
or on EDGAR (www.sec.gov/edgar) and simultaneously notifying the Agent of the
availability of such materials at such website (or such other website as the
Borrower may designate in writing to the Agent).


 


§7.5                          Notices.


 


(a)                                  Defaults.  The Borrower
will promptly upon becoming aware of same notify the Agent in writing of the
occurrence of any Default or Event of Default, which notice 


 


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shall describe such
occurrence with reasonable specificity and shall state that such notice is a “notice
of default”.  If any Person shall give
any notice of the existence of a claimed default or take any other action in
respect of a claimed default (whether or not constituting an Event of Default)
under this Agreement or under any note, evidence of indebtedness, indenture or
other obligation to which or with respect to which the Borrower, any Guarantor
or any of their respective Subsidiaries is a party or obligor, whether as
principal or surety, and such default would permit the holder of such note or
obligation or other evidence of indebtedness to accelerate the maturity
thereof, which acceleration would either cause a Default or have a Material
Adverse Effect, the Borrower shall forthwith give written notice thereof to the
Agent and each of the Lenders, describing the notice or action and the nature
of the claimed default.


 


(b)                                 Environmental Events. 
The Borrower will give notice to the Agent within five (5) Business Days
of becoming aware of (i) any potential or known Release, or threat of Release,
of any Hazardous Substances in violation of any applicable Environmental Law; (ii)
any violation of any Environmental Law that the Borrower, any Guarantor or any
of their respective Subsidiaries reports in writing or is reportable by such
Person in writing (or for which any written report supplemental to any oral
report is made) to any federal, state or local environmental agency or (iii) any
inquiry, proceeding, investigation, or other action, including a written notice
from any agency of potential environmental liability, of any federal, state or
local environmental agency or board, that in any case involves (A) a Mortgaged Property, (B) any other Real Estate and could reasonably be
expected to have a Material Adverse Effect, or (BC) or the Agent’s liens or security
title on the Collateral pursuant to the Security Documents.


 


(c)                                  Notification of Claims Against Collateral. 
The Borrower will give notice to the Agent in writing within seven (7) Business
Days of becoming aware of any material setoff, claims (including, with respect to the Mortgaged Property, environmental
claims), withholdings or other defenses to which any of the Collateral, or
the rights of the Agent or the Lenders with respect to the Collateral, are
subject.


 


(d)                                 Notice of Litigation and Judgments. 
The Borrower will give notice to the Agent in writing within five (5) Business
Days of becoming aware of any litigation or proceedings threatened in writing
or any pending litigation and proceedings affecting the Borrower, any Guarantor
or any of their respective Subsidiaries or to which the Borrower, any Guarantor
or any of their respective Subsidiaries is or is to become a party involving an
uninsured claim against the Borrower, any Guarantor or any of their respective
Subsidiaries that could either reasonably be expected to cause a Default or
could reasonably be expected to have a Material Adverse Effect and stating the
nature and status of such litigation or proceedings.  The Borrower will give notice to the Agent,
in writing, in form and detail reasonably satisfactory to the Agent and each of
the Lenders, within ten (10) days of any judgment not covered by insurance,
whether final or otherwise, against the Borrower or any of their respective
Subsidiaries in an amount in excess of $10,000,000.00.


 


(e)                                  ERISA.  The Borrower
will give notice to the Agent within five (5) Business Days after the Borrower
or any ERISA Affiliate (i) gives or is required to give notice to the PBGC of
any “reportable event” (as defined in §4043 of ERISA) with respect to any
Guaranteed Pension Plan, Multiemployer Plan or Employee Benefit Plan, or knows
that the plan administrator of any such plan has given or is required to give
notice of any such reportable 


 


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event; (ii) gives a
copy of any notice of complete or partial withdrawal liability under Title IV
of ERISA; or (iii) receives any notice from the PBGC under Title IV or
ERISA of an intent to terminate or appoint a trustee to administer any such
plan.


 


(f)                                    Notification of Lenders. 
Within five (5) Business Days after receiving any notice under this
§7.5, the Agent will forward a copy thereof to each of the Lenders, together
with copies of any certificates or other written information that accompanied
such notice.


 


§7.6                          Existence; Maintenance of Properties.


 


(a)                                  Except as permitted under §7.15, §8.4 and §8.8, the Borrower and each
Guarantor will and will cause each of their respective Subsidiaries to preserve
and keep in full force and effect their legal existence in the jurisdiction of
its incorporation or formation.  The
Borrower and each Guarantor will preserve and keep in full force all of their
rights and franchises and those of their Subsidiaries, the preservation of
which is necessary to the conduct of their business and the failure to have
which could reasonably be expected to have a Material Adverse Effect.  REIT shall at all times comply with all
requirements and applicable laws and regulations necessary to maintain REIT Status
and shall continue to receive REIT Status. 
From and after the IPO Event, the common stock of REIT shall at all
times be listed for trading and be traded on the New York Stock Exchange or
another national exchange approved by Agent, unless otherwise consented to by
the Required Lenders.


 


(b)                                 The Borrower and each Guarantor (i) will
cause all of its properties and those of its Subsidiaries used or useful in the
conduct of its business or the business of its Subsidiaries to be maintained
and kept in good condition, repair and working order (ordinary wear and tear
excepted) and supplied with all necessary equipment, and (ii) will cause
to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof in all cases in which the failure so to do would have a
material adverse effect on the condition of any Real Estate or would cause a
Material Adverse Effect.  Without
limitation of the obligations of the Borrower and the Guarantors under this
Agreement with respect to the maintenance of the Real Estate, the Borrower and
the Guarantors shall promptly and diligently comply with the recommendations of
the Environmental Engineer retained by Agent or Borrower, Guarantors or their
respective Subsidiaries concerning the maintenance, operation or upkeep of the
Real Estate contained in the building inspection and environmental reports
delivered to the Agent or otherwise obtained by the Borrower or any Guarantor
with respect to the Real Estate.


 


§7.7                          Insurance;
Condemnation.


 


(a)                                  The Borrower and each Subsidiary
Guarantor that owns a Mortgaged Property will, at its expense, procure and
maintain for the benefit of the Borrower, each such Subsidiary Guarantor and
the Agent, insurance policies issued by such insurance companies, in such
amounts, in such form and substance, and with such coverages, endorsements,
deductibles and expiration dates as are acceptable to the Agent, providing the
following types of insurance covering each Mortgaged Property:


 


(i)                                     “All
Risks” property insurance (including broad form flood, broad form earthquake,
coverage from loss or damage arising from acts of terrorism, and 


 


81

















 


comprehensive
boiler and machinery coverages) on each Building and the contents therein of
the Borrower and its Subsidiaries in an amount not less than one hundred
percent (100%) of the full replacement cost of each Building and the contents
therein of the Borrower and its Subsidiaries or such other amount as the Agent
may approve, with deductibles not to exceed $25,000.00 (except that the
windstorm damage deductible of 2% of total insured value with respect to Three
Eldridge Place, One Briarlake Plaza and Westway One, the windstorm damage deductible
of 5% of total insured value with respect to 5104 Eisenhower Boulevard, the hail
or windstorm damage deductible of $100,000.00 with respect to Mortgaged
Properties located in the State of Texas, and the flood damage deductible of
$100,000.00 with respect to One Briarlake Plaza, Westway One, Centreport Office
Center and Three Eldridge Place are hereby approved) for any one occurrence,
with a replacement cost coverage endorsement, an agreed amount endorsement,
and, if requested by the Agent, a contingent liability from operation of
building laws endorsement in such amounts as the Agent may require.  Full replacement cost as used herein means
the cost of replacing the Building (exclusive of the cost of excavations,
foundations and footings below the lowest basement floor) and the contents
therein of the Borrower and its Subsidiaries without deduction for physical
depreciation thereof;


 


(ii)                                  During the course of
construction or repair of any Building, the insurance required by clause (i) above
shall be written on a builders risk, completed value, non-reporting form,
meeting all of the terms required by clause (i) above, covering the total
value of work performed, materials, equipment, machinery and supplies
furnished, existing structures, and temporary structures being erected on or
near the Mortgaged Property, including coverage against collapse and damage
during transit or while being stored off-site, and containing a soft costs
(including loss of rents) coverage endorsement and a permission to occupy
endorsement;


 


(iii)                               Flood insurance if at any
time any Building is located in any federally designated “special hazard area”
(including any area having special flood, mudslide and/or flood-related erosion
hazards, and shown on a Flood Hazard Boundary Map or a Flood Insurance Rate Map
published by the Federal Emergency Management Agency as Zone A, AO, Al-30, AE,
A99, AH, VO, V1-30, VE, V, M or E) and the broad form flood coverage required
by clause (i) above is not available, in an amount equal to the full
replacement cost or the maximum amount then available under the National Flood
Insurance Program;


 


(iv)                              Rent loss insurance in an
amount sufficient to recover at least the total estimated gross receipts from
all sources of income, including without limitation, rental income, for the
Mortgaged Property for a twelve (12) month period;


 


(v)                                 Commercial general liability
insurance against claims for personal injury (to include, without limitation,
bodily injury and personal and advertising injury) and property damage
liability, all on an occurrence basis, if commercially available, with such
coverages as the Agent may reasonably request (including, without limitation,
contractual liability coverage, and coverages equivalent to an ISO broad form
endorsement), with a general aggregate limit of not less than $5,000,000.00, a
completed operations aggregate limit of not less than $5,000,000.00, and a
combined single “per occurrence” limit of not less than $2,000,000.00 for
bodily injury and property damage;


 


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(vi)                              During the course of
construction or repair of any improvements on the Mortgaged Property, the
general contractor selected to oversee such improvements shall provide
commercial general liability insurance (including completed operations
coverage) naming Borrower as an additional insured, or in lieu thereof, may
provide for such coverage by way of an owner’s contingent or protective
liability insurance covering claims not covered by or under the terms or
provisions of the insurance required by clause (v) above;


 


(vii)                           Employer’s liability
insurance with respect to the Borrower’s employees;


 


(viii)                        Umbrella liability insurance with limits
of not less than $25,000,000.00 to be in excess of the limits of the insurance
required by clauses (v) and (vii) above, with coverage at least as
broad as the primary coverages of the insurance required by clauses (v) and
(vii) above, with any excess liability insurance to be at least as broad
as the coverages of the lead umbrella policy. 
All such policies shall be endorsed to provide defense coverage
obligations;


 


(ix)                                Workers’ compensation
insurance for all employees of the Borrower or its Subsidiaries engaged on or
with respect to the Mortgaged Property with limits as required by applicable
law; and


 


(x)                                   Such other insurance in such
form and in such amounts as may from time to time be reasonably required by the
Agent against other insurable hazards and casualties which at the time are
commonly insured against in the case of properties of similar character and
location to the Mortgaged Property.


 


The Borrower shall pay all premiums on insurance
policies.  The insurance policies with
respect to all Mortgaged Property provided for in clauses (v), (vi) and (viii) above
shall name the Agent and each Lender as an additional insured and shall contain
a cross liability/severability endorsement. 
The insurance policies provided for in clauses (i), (ii), (iii), (iv) and
(vi) above shall name the Agent as mortgagee and loss payee, shall be
first payable in case of loss to the Agent, and shall contain mortgage clauses
and lender’s loss payable endorsements in form and substance acceptable to the
Agent.  The Borrower shall deliver certificates
of insurance evidencing all such policies to the Agent, and the Borrower shall
promptly furnish to the Agent all renewal notices and evidence that all
premiums or portions thereof then due and payable have been paid.  Not less than ten (10) days prior to the
expiration date of the policies, as the same may be reduced by Agent, the
Borrower shall deliver to the Agent evidence of continued coverage, as may be
satisfactory to the Agent, and within five (5) Business Days after the
renewal date of such policies, the Borrower shall deliver a certificate of
insurance to Agent, in form and substance satisfactory to the Agent.


 


(b)                                 All policies of insurance
required by this Agreement shall contain clauses or endorsements to the effect
that (i) no act or omission of the Borrower or any Subsidiary or anyone
acting for the Borrower or any Subsidiary (including, without limitation, any
representations made in the procurement of such insurance), which might
otherwise result in a forfeiture of such insurance or any part thereof, no
occupancy or use of the Real Estate for purposes more hazardous than permitted
by the terms of the policy, and no foreclosure or any 


 


83

















 


other
change in title to the Real Estate or any part thereof, shall affect the
validity or enforceability of such insurance insofar as the Agent is concerned,
(ii) the insurer waives any right of set off, counterclaim, subrogation,
or any deduction in respect of any liability of the Borrower or any Subsidiary
and the Agent, (iii) such insurance is primary and without right of
contribution from any other insurance which may be available, (iv) such
policies shall not be modified so as to reduce or in any way negatively affect
insurance coverage on any Mortgaged Property, canceled or terminated prior to
the scheduled expiration date thereof without the insurer thereunder giving at
least thirty (30) days prior written notice to the Agent by mail; provided,
however, that only ten (10) days prior written notice to Agent shall be
required if such cancellation or termination is due to non-payment of any
insurance premium, and (v) that the Agent or the Lenders shall not be
liable for any premiums thereon or subject to any assessments thereunder, and
shall in all events be in amounts sufficient to avoid any coinsurance
liability.


 


(c)                                  The insurance required by
this Agreement may be effected through a blanket policy or policies covering
additional locations and property of the Borrower and other Persons not
included in the Mortgage Property, provided that such blanket policy or
policies comply with all of the terms and provisions of this §7.7 and contain
endorsements or clauses assuring that any claim recovery will not be less than
that which a separate policy would provide, including, without limitation, a
priority claim provision with respect to property insurance and an aggregate
limits of insurance endorsement in the case of liability insurance.


 


(d)                                 All policies of insurance
required by this Agreement shall be issued by companies licensed to do business
in the State where the policy is issued and also in the States where the Real
Estate is located and shall be issued by companies having a rating in Best’s
Key Rating Guide of at least “A” and a financial size category of at least “X”.  Notwithstanding the foregoing, not less than
eighty percent (80%) of excess liability insurance shall be issued by companies
having a rating in Best’s Key Rating Guide of at least “A” and a financial size
category of at least “X”; provided, however, that not less than one hundred
percent (100%) of such excess liability insurance shall be issued by companies
with a rating in Best’s Key Rating Guide of at least “A” and a financial size
category of at least “VIII”.


 


(e)                                  Neither the Borrower nor any
Subsidiary shall carry separate insurance, concurrent in kind or form or
contributing in the event of loss, with any insurance required under this
Agreement unless such insurance complies with the terms and provisions of this
§7.7.


 


(f)                                    In the
event of any loss or damage to any Mortgaged Property, the Borrower or the
applicable Guarantor shall give prompt written notice to the insurance carrier
and the Agent.  Each of the Borrower and
the Guarantors hereby irrevocably authorizes and empowers the Agent, at the
Agent’s option and in the Agent’s sole discretion or at the request of the
Required Lenders in their sole discretion, as its attorney in fact, to make
proof of such loss, to adjust and compromise any claim under insurance
policies, to appear in and prosecute any action arising from such insurance
policies, to collect and receive Insurance Proceeds and Condemnation Proceeds,
and to deduct therefrom the Agent’s reasonable expenses incurred in the
collection of such Insurance Proceeds; provided, however, that so long as no
Default or Event of Default has occurred and is continuing and so long as the
Borrower or any Guarantor shall in good faith diligently pursue such claim, the
Borrower or such Guarantor may make proof of loss and appear in any proceedings
or negotiations with respect to the adjustment of such 


 


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claim,
except that the Borrower or such Guarantor may not settle, adjust or compromise
any such claim without the prior written consent of the Agent, which consent
shall not be unreasonably withheld or delayed; provided, further, that the
Borrower or such Guarantor may make proof of loss and adjust and compromise any
claim under casualty insurance policies which is in an amount less than $2,000,000.00
so long as no Default or Event of Default has occurred and is continuing and so
long as the Borrower or such Guarantor shall in good faith diligently pursue
such claim.  The Borrower and each
Guarantor further authorize the Agent, at the Agent’s option, to (i) apply
the balance of such Insurance Proceeds and Condemnation Proceeds to the payment
of the Obligations whether or not then due, or (ii) if the Agent shall
require the reconstruction or repair of the Mortgaged Property, to hold the
balance of such proceeds as trustee to be used to pay taxes, charges, sewer use
fees, water rates and assessments which may be imposed on the Mortgaged Property
and the Mortgaged Property’s allocable share of interest on the Obligations as
they become due during the course of reconstruction or repair of the Mortgaged
Property and to reimburse the Borrower or such Guarantor, in accordance with
such commercially reasonable terms and conditions as the Agent may prescribe,
for, or to pay directly, the costs of reconstruction or repair of the Mortgaged
Property, and upon completion of such reconstruction or repair to pay any
excess Insurance Proceeds to the Borrower, provided that (i) upon
completion of such reconstruction or repair, such Mortgaged Property is in
compliance with all applicable state, federal and local laws, ordinances and
regulations, including, without limitation, all building and zoning laws,
ordinances and regulations and (ii) no Defaults or Events of Default exist
or are continuing under this Agreement on the date of such payment to the
Borrower.


 


(g)                                 Notwithstanding the
foregoing or anything to the contrary contained in the Mortgages, the Agent
shall make net Insurance Proceeds and Condemnation Proceeds available to the
Borrower or such Guarantor to reconstruct and repair the Mortgaged Property, in
accordance with such terms and conditions as the Agent may prescribe in the
Agent’s discretion for the disbursement of the proceeds, provided that (i) the
cost of such reconstruction or repair is not estimated by the Agent to exceed
thirty-five percent (35%) of the replacement cost of the damaged Building (as
reasonably estimated by the Agent), (ii) no Default or Event of Default
shall have occurred and be continuing, (iii) the Borrower or such
Guarantor shall have provided to the Agent additional cash security in an
amount equal to the amount reasonably estimated by the Agent to be the amount
in excess of such proceeds which will be required to complete such repair or
restoration, (iv) the Agent shall have approved the plans and
specifications, construction budget, construction contracts, and construction
schedule for such repair or restoration and reasonably determined that the
repaired or restored Mortgaged Property will provide the Agent with adequate
security for the Obligations (provided that the Agent shall not disapprove such
plans and specifications if the Building is to be restored to substantially its
condition immediately prior to such damage), (v) the Borrower or such
Guarantor shall have delivered to the Agent written agreements binding upon the
Major Tenants and not less than eighty percent (80%) of the remaining tenants
or other parties having present or future rights to possession of any portion
of the affected Mortgaged Property or having any right to require repair,
restoration or completion of the Mortgaged Property or any portion thereof
(determined by reference to those tenants that are not Major Tenants and that
in the aggregate occupy or have rights to occupy not less than eighty percent
(80%) of the Net Rentable Area of the Building so damaged, excluding the
portion leased by the Major Tenants), agreeing upon a date for delivery of
possession of the Mortgaged Property or their respective portions thereof, to
permit time 


 


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which
is sufficient in the judgment of the Agent for such repair or restoration and
approving the plans and specifications for such repair or restoration, or other
evidence satisfactory to the Agent that none of such tenants or other parties
may terminate their Leases as a result of such casualty or as a result of
having a right to approve the plans and specifications for such repair or
restoration, (vi) the Agent shall reasonably determine that such repair or
reconstruction can be completed prior to the Maturity Date, (vii) the
Agent shall receive evidence reasonably satisfactory to it that any such
restoration, repair or rebuilding complies in all respects with any and all
applicable state, federal and local laws, ordinances and regulations, including
without limitation, zoning laws, ordinances and regulations, and that all
required permits, licenses and approvals relative thereto have been or will be
issued in a manner so as not to materially impede the progress of restoration, (viii) the
Agent shall receive evidence reasonably satisfactory to it that the insurer
under such policies of fire or other casualty insurance does not assert any
defense to payment under such policies against the Borrower, any Guarantor or
the Agent, and (ix) with respect to any Taking, Agent shall determine that
following such repair or restoration there shall be no more than the lesser of (i) a
twenty-five percent (25%) reduction in occupancy or rental income from the
Mortgaged Property so affected by such specific condemnation or taking
(excluding any proceeds from rental loss insurance or proceeds from such award
allocable to rent) or (ii) a fifteen percent (15%) reduction in occupancy
or in rental income from all of the Mortgaged Properties (excluding any
proceeds from rental loss insurance or proceeds of such award allocable to
rent), after giving effect to the current condemnation or taking and any
previous condemnations or takings which may have occurred.  Notwithstanding the foregoing, so long as no
Default or Event of Default exists or is continuing under this Agreement at the
time of loss or damage to a Mortgaged Property, Borrower shall have the option
to obtain the release of such Mortgaged Property from the Borrowing Base by (i) complying
with the provisions of § 5.4, (ii) reducing the Total Commitment by 125%
of the Allocated Loan Amount associated with the Mortgaged Property or Mortgaged
Properties to be released, (iii) notwithstanding the terms of §5.4(e), by
paying to Agent for the pro rata accounts of the Lenders, an amount necessary such
that the amount of the outstanding Loans and Letter of Credit Liabilities do
not exceed the Total Commitment or the Borrowing Base Availability (which
payment may be netted out of Insurance Proceeds and Condemnation Proceeds being
held by Agent), and (iv) delivering to Agent evidence reasonably
satisfactory to Agent that Borrower will be in pro forma compliance with the
covenants set forth in §9 immediately after giving effect to such release, in
which case Agent shall make net Insurance Proceeds and Condemnation Proceeds
available to the Borrower or to the Guarantor that owns such Mortgaged
Property.  Any excess Insurance Proceeds
shall be paid to the Borrower, or if an Event of Default has occurred and is
continuing, such proceeds shall be applied to the payment of the Obligations,
unless in either case by the terms of the applicable insurance policy the
excess proceeds are required to be returned to such insurer.  Any excess Condemnation Proceeds shall be
applied to the payment of the Obligations. 
In no event shall the provisions of this section be construed to extend
the Maturity Date or to limit in any way any right or remedy of the Agent upon
the occurrence of an Event of Default hereunder.  If the Mortgaged Property is sold or the
Mortgaged Property is acquired by the Agent, all right, title and interest of the
Borrower and any Guarantor in and to any insurance policies to the extent that
they relate to Mortgaged Properties and unearned premiums thereon and in and to
the proceeds thereof resulting from loss or damage to the Mortgaged Property
prior to the sale or acquisition shall pass to the Agent or any other successor
in interest to the Borrower or purchaser of the Mortgaged Property.


 


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(h)                                 The Borrower, the Guarantors and their respective
Subsidiaries (as applicable) will, at their expense, procure and maintain insurance
covering such Person and its properties and assetsthe Borrower, the Guarantors and their respective Subsidiaries (as
applicable) and the Real Estate other than the Mortgaged Property in such
amounts and against such risks and casualties as are customary for properties
and assets of similar character and location, due regard being given to the
type of improvements thereon, their construction, location, use and occupancy.


 


(i)                                     The
Borrower and the Guarantors will provide to the Agent for the benefit of the
Lenders Title Policies for all of the Mortgaged Properties of such Person.


 


§7.8                          Taxes; Liens. 
The Borrower and the Guarantors will, and will cause their respective
Subsidiaries to, duly pay and discharge, or cause to be paid and discharged,
before the same shall become delinquent, all taxes, assessments and other
governmental charges imposed upon them or upon their propertiesthe Mortgaged Properties or the other Real Estate,
sales and activities, or any part thereof, or upon the income or profits
therefrom as well as all claims for labor, materials or supplies that if unpaid
might by law become a lien or charge upon any of its property or other Liens
affecting any of the Collateral or other property of the Borrower, the
Guarantors or their respective Subsidiaries, provided that any such tax,
assessment, charge or levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
which shall suspend the collection thereof with respect to such property,
neither such property nor any portion thereof or interest therein would be in
any danger of sale, forfeiture or loss by reason of such proceeding and the
Borrower, such Guarantor or any such Subsidiary shall have set aside on its
books adequate reserves in accordance with GAAP; and provided, further,
that forthwith upon the commencement of proceedings to foreclose any lien that
may have attached as security therefor, the Borrower, such Guarantor or any
such Subsidiary either (i) will provide a bond issued by a surety
reasonably acceptable to the Agent and sufficient to stay all such proceedings
or (ii) if no such bond is provided, will pay each such tax, assessment,
charge or levy.


 


§7.9                          Inspection of Properties and Books. 
The Borrower and the Guarantors will, and will cause their respective
Subsidiaries to, permit the Agent and the Lenders, at the Borrower’s expense (to
the extent provided for below) and upon reasonable prior notice, to visit and
inspect any of the properties of the Borrower, each Guarantor or any of their
respective Subsidiaries (subject to the rights of tenants under their Leases),
to examine the books of account of the Borrower, any Guarantor and their
respective Subsidiaries (and to make copies thereof and extracts therefrom) and
to discuss the affairs, finances and accounts of the Borrower, any Guarantor
and their respective Subsidiaries with, and to be advised as to the same by,
their respective officers, partners or members, all at such reasonable times
and intervals as the Agent or any Lender may reasonably request, provided
that so long as no Event of Default shall have occurred and be continuing, the
Borrower shall not be required to pay for such visits and inspections.  The Lenders shall use good faith efforts to
coordinate such visits and inspections so as to minimize the interference with
and disruption to the normal business operations of such Persons.


 


§7.10                    Compliance with Laws, Contracts,
Licenses, and Permits.  The Borrower and the Guarantors
will, and will cause each of their respective Subsidiaries to, comply in all
respects 


 


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with (i) all applicable laws and regulations now
or hereafter in effect wherever its business is conducted, including all
Environmental Laws, (ii) the provisions of its corporate charter,
partnership agreement, limited liability company agreement or declaration of
trust, as the case may be, and other charter documents and bylaws, (iii) all
agreements and instruments to which it is a party or by which it or any of its
properties may be bound, (iv) all applicable decrees, orders, and
judgments, and (v) all licenses and permits required by applicable laws
and regulations for the conduct of its business or the ownership, use or
operation of its properties, except where a failure to so comply with any of
clauses (i) through (v) could not reasonably be expected to have a
Material Adverse Effect.  If any
authorization, consent, approval, permit or license from any officer, agency or
instrumentality of any government shall become necessary or required in order
that the Borrower, any Guarantor or their respective Subsidiaries may fulfill
any of its obligations hereunder, the Borrower, such Guarantor or such
Subsidiary will promptly take or cause to be taken all steps necessary to
obtain such authorization, consent, approval, permit or license and furnish the
Agent and the Lenders with evidence thereof. 
The Borrower shall develop and implement such programs, policies and
procedures as are necessary to comply with the Patriot Act and shall promptly
advise Agent in writing in the event that the Borrower shall determine that any
investors in the Borrower are in violation of such act.


 


§7.11                    Further Assurances. 
The Borrower and each Guarantor will and will cause each of their
respective Subsidiaries to, cooperate with the Agent and the Lenders and
execute such further instruments and documents as the Lenders or the Agent
shall reasonably request to carry out to their satisfaction the transactions
contemplated by this Agreement and the other Loan Documents.


 


§7.12                    Management.  The Borrower shall not and shall not permit
any Guarantor to enter into any Management Agreement with a third party manager
after the date hereof for any Mortgaged Property without the prior written
consent of the Agent (which shall not be unreasonably withheld).  Agent may condition any approval of a new
manager engaged by Borrower or a Subsidiary with respect to a Mortgaged
Property upon the execution and delivery to Agent of a collateral assignment of
such Management Agreement to Agent and a subordination of the manager’s rights
thereunder to the rights of the Agent and the Lenders under the Loan Documents
in a form substantially in the form of Exhibit M attached hereto.  Borrower shall not and shall not permit any
Guaranty or other Subsidiary to increase any management fee payable under a Management
Agreement after the date the applicable Real Estate becomes a Mortgaged
Property without the prior written consent of the Required Lenders.


 


§7.13                    Leases
of the Property.  The Borrower and each
Guarantor will give notice to the Agent of any proposed new Lease that covers
25,000 square feet or more of any Mortgaged Property for the lease of space
therein and shall provide to the Agent a copy of the proposed Lease and any and
all agreements or documents related thereto, current financial information for
the proposed tenant and any guarantor of the proposed Lease and such other
information as the Agent may reasonably request (the “Lease Notice”).  Neither the Borrower nor any Guarantor will
lease all or any portion of a Mortgaged Property or amend, supplement or
otherwise modify, terminate or cancel, or accept the surrender of, or (if
Borrower’s or such Guarantor’s consent is required under the terms of such
Lease) consent to the assignment or subletting of, or grant any concessions to
or waive the performance of any obligations of any tenant, lessee or licensee
under, any now existing or future Lease without the prior written consent of
the Agent; provided, 


 


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however, with
respect to (a) any Lease which covers less than 25,000 square feet of a
Mortgaged Property, the Borrower or any Guarantor may enter into any such
Lease, or amend, supplement or otherwise modify, terminate or cancel, or accept
the surrender of, or consent to the assignment or subletting of, or granting
concessions to or waive the performance of any obligations of any tenant,
lessee or licensee under, any such Lease, in each case in the ordinary course
of business consistent with sound leasing and management practices for similar
properties.  To the extent the Agent’s
approval or consent is required pursuant to this Section 7.13, Agent’s
approval shall be deemed granted in the event the Agent fails to respond to the
Borrower’s request within ten (10) Business Days if (A) Borrower has
delivered to Agent the applicable documents, with the notation “IMMEDIATE
RESPONSE REQUIRED, FAILURE TO RESPOND TO THIS APPROVAL REQUEST WITHIN TEN (10) BUSINESS
DAYS FROM RECEIPT SHALL BE DEEMED TO BE LENDER’S APPROVAL” prominently
displayed in bold, all caps and fourteen (14) point or larger font in the
transmittal letter requesting approval and (B) Agent does not approve or
reject (with a reasonable explanation) the applicable request within ten (10) Business
Days from the date Agent receives the request as evidenced by a certified mail
return receipt or confirmation by a reputable national overnight delivery
service (e.g., federal express) that the same has been delivered.


 


§7.14                    Business Operations. 
REIT, the Borrower and their respective Subsidiaries shall operate their
respective businesses in substantially the same manner and in substantially the
same fields and lines of business as such business is now conducted and in
compliance with the terms and conditions of this Agreement and the Loan
Documents.  Neither REIT nor the
Borrowers will, and will not permit any Subsidiary to, directly or indirectly,
engage in any line of business other than the ownership, operation and
development of office properties, non-office properties and other activities
and businesses to the extent permitted under §8.3, or businesses incidental
thereto.


 


§7.15                    Subordination of Advisory Fees.  The
Borrower shall cause the advisory fees payable to the Advisor under the Advisory
Agreement and any and all other similar agreements, whether written or oral, to
be subordinated to the prior payment in full of the Obligations on terms and
conditions reasonably satisfactory to the Agent.   Neither Borrower nor REIT shall (i) amend,
supplement or otherwise modify in any material respect the Advisory Agreement to
impose additional obligations on the REIT without the prior written consent of
the Agent (which consent shall not be unreasonably withheld) or (ii) enter
into any agreement in replacement of the Advisory Agreement with an advisor without
the prior written consent of the Agent (which consent shall not be unreasonably
withheld), and after such approval, no such replacement management agreement
shall be amended, supplemented or otherwise modified in any material respect
without Agent’s prior written approval, such approval not to be unreasonably withheld, or if any such amendment, modification or
supplement under (i) or (ii) would increase the fees payable under
the Advisory Agreement or any replacement without the prior written consent of
the Required Lenders (which consent shall not be unreasonably withheld) (it
being understood that neither the Advisor’s waiver of the payment of all or any
portion of the fees payable under the Advisory Agreement or any replacement,
nor the termination of any such waiver, shall require the consent of Agent or
any Lender); provided, however notwithstanding anything to the contrary
contained herein, Agent and the Lenders hereby waive all right of prior notice,
consent and approval to the Internalization (subject to the terms of the
definition thereof).  Agent may
condition any approval of a new advisor upon the execution and delivery to
Agent of a 


 


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subordination of the advisor’s rights thereunder to
the rights of the Agent and the Lenders under the Loan Documents in
substantially the form of the Subordination of Advisory Fees executed in
connection with the closing.  The Advisor
shall be permitted to delegate any of its responsibilities under the Advisory
Agreement to other Affiliates of Advisor (who shall also be the “Advisor” under
this Agreement), provided that such other Person acknowledges and agrees that
its rights to compensation under the Advisory Agreement are subject to, and
agrees to be bound by, the Subordination of Advisory Agreement.  The Borrower shall provide prompt written
notice to Agent of each such delegation together with evidence that such
delegation was in compliance with the preceding sentence.


 


§7.16                    Registered
Servicemark.  Without prior written
notice to the Agent, except with respect to the trademarks, tradenames,
servicemarks or logos listed on Schedule 6.6 hereto or in any Mortgage with
respect to any Mortgaged Property other than the Initial Mortgaged Properties, none
of the Mortgaged Properties shall be owned or operated by the Borrower or any
Guarantor under any trademark, tradename, servicemark or logo.  In the event any of the Mortgaged Properties
shall be owned or operated under any tradename, trademark, servicemark or logo,
not listed on Schedule 6.6 hereto or in any Mortgage with respect to any
Mortgaged Property other than the Initial Mortgaged Properties, Borrower or the
applicable Guarantor shall enter into such agreements with Agent in form and
substance reasonably satisfactory to Agent, as Agent may reasonably require to
grant Agent a perfected first priority security interest therein and to grant to
Agent or any successful bidder at a foreclosure sale of such Mortgaged Property
the right and/or license to continue operating such Mortgaged Property under
such tradename, trademark, servicemark or logo as determined by Agent.


 


§7.17                    Ownership of Real Estate. 
Without the prior written consent of Agent, all Real Estate and all
interests (whether direct or indirect) of REIT or the Borrower in any Real Estate
assets now owned or leased or acquired or leased after the date hereof shall be
owned or leased directly by REIT, the Borrower or a Wholly Owned Subsidiary of
the Borrower; provided, however that REIT and the Borrower shall
be permitted to own or lease interests in Real Estate through non-Wholly Owned
Subsidiaries and Unconsolidated Affiliates as permitted by §8.3.


 


§7.18                    Distributions of Income to Borrower. 
The Borrower shall cause all of its Subsidiaries (subject to applicable
law, the terms of any loan documents under which such Subsidiary is the
borrower, and the terms of any organizational documents of a joint venture with
a Person that is not an Affiliate of REIT or Borrower entered into in the
ordinary course of business) to promptly distribute to the Borrower (but not
less frequently than once each calendar quarter, unless otherwise approved by
the Agent), whether in the form of dividends, distributions or otherwise, all
profits, proceeds or other income relating to or arising from its Subsidiaries’
use, operation, financing, refinancing, sale or other disposition of their
respective assets and properties after (a) the payment by each Subsidiary
of its debt service, operating expenses, capital improvements and leasing
commissions for such quarter and (b) the establishment of reasonable
reserves for the payment of operating expenses not paid on at least a quarterly
basis and capital improvements and tenant improvements to be made to such
Subsidiary’s assets and properties approved by such Subsidiary in the course of
its business consistent with its past practices.


 


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§7.19                    Plan Assets.  The Borrower, the Guarantors and each of
their respective Subsidiaries will do, or cause to be done, all things
necessary to ensure that none of its Real Estate will be deemed to be Plan
Assets at any time.


 


§7.20                    Construction of Improvements on Three Eldridge
Place.  The Borrower and Three Eldridge
Place Owner shall cause the Improvements to be constructed and fully equipped
in a good and workmanlike manner with materials of high quality, strictly in
accordance with the Plans and Specifications (or in accordance with any changes
therein that may be approved in writing by Agent or as to which Agent’s
approval is not required), and such construction and equipping will be
prosecuted with due diligence and continuity and fully completed not later than
the Completion Date.


 


§7.21                    Inspection by Agent or any Lender of Construction
at Three Eldridge Place.  The Borrower
and Three Eldridge Place Owner shall permit the Lenders, through the Agent or
any representative designated by the Agent, and not more than one (1) consultant
of Lender or Agent, at the Borrower’s expense, to visit and inspect Three
Eldridge Place and all materials to be used in the construction thereof and
will cooperate with the Agent and any construction inspector during such inspections
(including making available working drawings of the Plans and Specifications);
provided that this provision shall not be deemed to impose on the Lender, the
Agent or such consultant of Agent or any Lender any obligation to undertake
such inspections.  Borrower and Three
Eldridge Place Owner shall, upon the request of the consultant of Agent or any
Lender, correct any material defect in the Improvements or any failure of the
Improvements or the construction thereof to comply with the Plans and Specifications
in any material respect.


 


§7.22                    Mechanics’ Liens and Contest Thereof.  Notwithstanding any provision in the Loan
Documents to the contrary, neither Borrower nor Three Eldridge Place Owner will
suffer or permit any mechanics’ lien claims to be filed or otherwise asserted
against Three Eldridge Place or any funds due to the general contractor, and
will promptly discharge the same in case of the filing of any claims for lien
or proceedings for the enforcement thereof, provided, however, that Borrower or
Three Eldridge Place Owner, as applicable, shall have the right to contest in
good faith and with reasonable diligence the validity of any such lien or claim
provided that Borrower or Three Eldridge Place Owner, as applicable, posts a
statutory lien bond which removes such lien from title to Three Eldridge Place
within twenty-five (25) days of the filing of the lien.


 


§7.23                    Settlement of Mechanics’ Lien Claims.  If Borrower or Three Eldridge Place Owner
shall fail promptly either (i) to discharge any such lien, or (ii) post
a statutory lien bond, Agent may, at its election (but shall not be required
to), procure the release and discharge of any such claim and any judgment or
decree thereon and, further, may in its sole discretion effect any settlement or
compromise of the same, or may furnish such security or indemnity to the Title Insurance
Company, and any amounts so expended by Lender, including premiums paid or
security furnished in connection with the issuance of any surety company bonds,
shall be deemed to constitute disbursement of the proceeds of the Loan
hereunder.  In settling, compromising or
discharging any claims for lien, Agent shall not be required to inquire into
the validity or amount of any such claim.


 


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§7.24                    Eldridge Reserve.


 


(a)                                  Notwithstanding anything in this Agreement to the contrary, Borrower
shall not be entitled to obtain any advance of the Loans or issuance of any
Letter of Credit, and the Lenders shall have no obligation to advance any of
the Loans or issue any Letters of Credit, in an amount equal to the Eldridge
Reserve, which shall be reserved from the Borrowing Base Availability as
provided in this section.  Not more
frequently than one time each calendar quarter, Borrower may submit to Agent
evidence reasonably satisfactory to Agent of (i) costs expended to
complete the Improvements, and (ii) the remaining cost to complete the
Improvements (including the amount of any retainage), which evidence shall
include, without limitation, executed lien waivers relating to previous
payments, a certification from Three Eldridge Place Owner regarding changes to
the Plans and Specifications and the remaining cost to complete, and date down
endorsements to the Title Policy for Three Eldridge Place indicating the
absence of liens.  Following Agent’s
receipt and review of such items, Agent shall adjust the Eldridge Reserve.  If the amount unfunded under this Agreement
(for the avoidance of doubt, Letters of Credit issued and outstanding shall be
considered funded for the purposes of this section) is less than the Eldridge
Reserve, Borrower shall within five days of demand either (x) reduce the
Outstanding Loans and Letters of Credit such that the amount unfunded under
this Agreement equals or exceeds the Eldridge Reserve or (y) deposit with
Agent cash in an amount equal to such shortfall, and execute and deliver to
Agent such documents as Agent may reasonably request to grant Agent a first
priority perfected security interest in such sums.  Such amount shall be held as additional
collateral for the Obligations but may be released to Borrower as the amount of
the Eldridge Reserve is reduced.


 


(b)                                 The Eldridge Reserve shall be finally released and discharged and
available for borrowing upon receipt by Agent of evidence reasonably
satisfactory to Agent of (i) completion of the Improvements under the
Eldridge Construction Contract, (ii) issuance of a shell certificate of
occupancy for the Improvements, (iii) payment in full of all sums due in
connection with the construction of the Improvements under the Eldridge
Construction Contract, and that no party claims or has a right to claim any
statutory or common law lien arising out of the construction of the
Improvements pursuant to the Eldridge Construction Contract (which evidence
shall include final lien waivers from any general contractor and such major
subcontractors as Agent may reasonably require), (iv) recording of a
certificate of completion in accordance with Texas law and (v) issuance of
an endorsement to the Title Policy for Three Eldridge Place removing any
exception for mechanic’s and materialmen’s liens.


 


§8.                                NEGATIVE
COVENANTS.


 


The Borrower covenants
and agrees that, so long as any Loan, Note or Letter of Credit is outstanding
or any of the Lenders has any obligation to make any Loans or issue any Letter
of Credit:


 


§8.1                          Restrictions
on Indebtedness.  The Borrower will
not, and will not permit any Guarantor or their respective Subsidiaries to,
create, incur, assume, guarantee or be or remain liable, contingently or
otherwise, with respect to any Indebtedness other than:


 


(a)                                  Indebtedness
to the Lenders arising under any of the Loan Documents;


 


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(b)                                 current
liabilities of the Borrower, the Guarantor or their respective Subsidiaries
incurred in the ordinary course of business but not incurred through (i) the
borrowing of money, or (ii) the obtaining of credit except for credit on
an open account basis customarily extended and in fact extended in connection
with normal purchases of goods and services;


 


(c)                                  Indebtedness
in respect of taxes, assessments, governmental charges or levies and claims for
labor, materials and supplies to the extent that payment therefor shall not at
the time be required to be made in accordance with the provisions of §7.8 or §7.22;


 


(d)                                 Indebtedness
in respect of judgments only to the extent, for the period and for an amount
not resulting in an Event of Default;


 


(e)                                  endorsements
for collection, deposit or negotiation and warranties of products or services,
in each case incurred in the ordinary course of business; and


 


(f)                                    subject
to the provisions of §9, Indebtedness in respect of Derivatives Contracts that
are entered into in the ordinary course of business and not for speculative
purposes;


 


(g)                                 subject
to the provisions of §9, Indebtedness in respect of Capitalized Leases and
claims under environmental indemnities or with respect to Non-Recourse
Exclusions not to exceed $15,000,000.00 (excluding environmental claims covered
by insurance) in the aggregate at any one time;


 


(h)                                 subject
to the provisions of §9, Non-Recourse Indebtedness that is secured by Real
Estate (other than the Mortgaged Properties) and
related assets;


 


(i)                                     subject
to the provisions of §9, Secured Debt or
Unsecured Debt that is Recourse Indebtedness, provided that the
aggregate amount of such Indebtedness (excluding the Obligations) shall not
exceed ten percent (10%) of Gross Asset Value; and


 


(j)                                     unsecured
Indebtedness of Subsidiaries of Borrower to Borrower; provided that any such
Indebtedness of a Subsidiary of Borrower that is a Guarantor shall be
subordinate to the repayment of the Obligations on terms reasonably acceptable
to Agent.


 


Notwithstanding anything
in this Agreement to the contrary, (i) none
of the Indebtedness described in §8.1(i) above shall have any of the
Mortgaged Properties or any interest therein or any direct or indirect
ownership interest in any Subsidiary Guarantor as collateral, a borrowing base,
unencumbered asset pool or any similar form of credit support for such
Indebtedness, (ii) none of the Borrower, the Guarantors or their
respective Subsidiaries shall create, incur, assume, guarantee or be or remain
liable, contingently or otherwise, with respect to (x) any
Indebtedness (other than Indebtedness to the Lenders arising under the Loan
Documents) with respect to which there is a Lien on any Equity Interests, right
to receive Distributions or similar right in any Subsidiary or Unconsolidated
Affiliate of such Person  or (y) any
Unsecured Debt; and (iii) no
Subsidiary of Borrower which directly or indirectly owns a Mortgaged Property
shall create, incur, assume, guarantee or be or remain liable, contingently,
with respect to any Indebtedness  


 


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other than Indebtedness permitted
under clauses (b)-(g) of this §8.1.to
the Lenders arising under the Loan Documents.


 


§8.2                          Restrictions
on Liens, Etc.  The Borrower will
not, and will not permit any Guarantor or their respective Subsidiaries to (a) create
or incur or suffer to be created or incurred or to exist any lien, security
title, encumbrance, mortgage, pledge, negative pledge, charge, restriction or
other security interest of any kind upon any of their respective property or
assets of any character whether now owned or hereafter acquired, or upon the
income or profits therefrom; (b) transfer any of their property or assets
or the income or profits therefrom for the purpose of subjecting the same to
the payment of Indebtedness or performance of any other obligation in priority
to payment of its general creditors; (c) acquire, or agree or have an
option to acquire, any property or assets upon conditional sale or other title
retention or purchase money security agreement, device or arrangement; (d) suffer
to exist for a period of more than thirty (30) days after the same shall have
been incurred any Indebtedness or claim or demand against any of them that if
unpaid couldwould by law or upon
bankruptcy or insolvency, or otherwise, be given any priority whatsoever over
any of their general creditors; (e) sell, assign, pledge or otherwise
transfer any accounts, contract rights, general intangibles, chattel paper or
instruments, with or without recourse; or (f) incur or maintain any
obligation to any holder of Indebtedness of any of such Persons which prohibits
the creation or maintenance of any lien securing the Obligations (collectively,
“Liens”); provided that notwithstanding anything to the contrary
contained herein, the Borrower, any Guarantor or any such Subsidiary may create
or incur or suffer to be created or incurred or to exist:


 


(i)                                     (A) Liens
on properties to secure taxes, assessments and other governmental charges (excluding
any Lien imposed pursuant to any of the provisions of ERISA or pursuant to any
Environmental Laws) or claims for labor, material or supplies incurred in the
ordinary course of business in respect of obligations not then delinquent or
not otherwise required to be paid or discharged under the terms of this
Agreement or any of the other Loan Documents and (B) Liens on assets other
than (I) the Collateral and (II) any direct or indirect interest of
the Borrower and any Subsidiary of the Borrower in any Guarantor or any Company
in respect of judgments permitted by §8.1(d);


 


(ii)                                  deposits
or pledges made in connection with, or to secure payment of, workers’
compensation, unemployment insurance, old age pensions or other social security
obligations;


 


(iii)                               Liens
consisting of mortgage liens on Real Estate,
other than Real Estate that constitutes a Mortgaged Property, (including
the rents, issues and profits therefrom), or any interest therein (including
the rents, issues and profits therefrom), and related personal property securing
Indebtedness which is permitted by §8.1(h) or (i);


 


(iv)                              encumbrances
on properties, other than the Mortgaged
Properties, consisting of easements, tenant leases, rights of way, zoning
restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto, landlord’s or lessor’s liens under leases
to which the Borrower or any such Subsidiary is a party, and other non-monetary
liens or encumbrances, which do not individually or in the aggregate have a
Material Adverse Effect;


 


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(v)                                 cash
deposits to secure the performance of bids, trade contracts (other than for
Indebtedness), purchase contracts, leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business;


 


(vi)                              rights
of setoff or bankers’ liens upon deposits of cash in favor of banks or other
depository institutions, solely to the extent incurred in connection with the
maintenance of such deposit accounts in the ordinary course of business;


 


(vii)                           Liens
of Capitalized Leases; and


 


(viii)                        Liens in
favor of the Agent and the Lenders under the Loan Documents to secure the
Obligations; and


 


(ix)                                Leases, liens and encumbrances on a Mortgaged Property expressly
permitted under the terms of the Mortgage relating thereto.


 


Notwithstanding anything
in this Agreement to the contrary, (x) no Subsidiary Guarantor shall
create or incur or suffer to be created or incurred or to exist any Lien other
than Liens contemplated in §§8.2(i), (iv), (v), (vi) and, (vii), (viii) and
(ix) and (y) REIT shall not create or suffer to be created or
incurred or to exist any Lien on any of its properties or assets or those of
the general partner of the Borrower, other than Liens contemplated in §8.2(i)(A),
(v) and (vi), and any assignment of claims which REIT may have against
Borrower or any Subsidiary or Unconsolidated Affiliate in a bankruptcy
proceeding of Borrower, such Subsidiary or Unconsolidated Affiliate to a lender
contained in a guaranty.


 


§8.3                          Restrictions
on Investments.  Neither the Borrower
nor any Guarantor will, nor will it permit any of its Subsidiaries to, make or
permit to exist or to remain outstanding any Investment except Investments in:


 


(a)                                  marketable
direct or guaranteed obligations of the United States of America that mature
within one (1) year from the date of purchase by Borrower or its
Subsidiary;


 


(b)                                 marketable
direct obligations of any of the following: Federal Home Loan Mortgage
Corporation, Student Loan Marketing Association, Federal Home Loan Banks,
Federal National Mortgage Association, Government National Mortgage
Association, Bank for Cooperatives, Federal Intermediate Credit Banks, Federal
Financing Banks, Export-Import Bank of the United States, Federal Land Banks, or
any other agency or instrumentality of the United States of America;intentionally omitted;


 


(c)                                  demand
deposits, certificates of deposit, bankers acceptances and time deposits of
United States banks having total assets in excess of $100,000,000.00; provided,
however, that the aggregate amount at any time so invested with any
single bank having total assets of less than $1,000,000,000.00 will not exceed
$500,000.00;


 


(d)                                 securities
commonly known as “commercial paper” issued by a corporation organized and existing
under the laws of the United States of America or any State which at the time
of purchase are rated by Moody’s Investors Service, Inc. or by Standard &



 


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Poor’s Corporation at not
less than “P 1” if then rated by Moody’s Investors Service, Inc., and not
less than “A 1”, if then rated by Standard & Poor’s Corporation;intentionally omitted;


 


(e)                                  mortgage-backed
securities guaranteed by the Government National Mortgage Association, the
Federal National Mortgage Association or the Federal Home Loan Mortgage
Corporation and other mortgage-backed bonds (excluding those backed by single
family residential mortgages) which at the time of purchase are rated by Moody’s
Investors Service, Inc. or by Standard & Poor’s Corporation at
not less than “Aa” if then rated by Moody’s Investors Service, Inc. and
not less than “AA” if then rated by Standard & Poor’s Corporation;intentionally omitted;


 


(f)                                    repurchase
agreements having a term not greater than ninety (90) days and fully secured by
securities described in the foregoing subsection (a), (b) or (e) with
banks described in the foregoing subsection (c) or with financial
institutions or other corporations having total assets in excess of
$500,000,000.00;intentionally omitted;


 


(g)                                 shares
of so-called “money market funds” registered with the SEC under the Investment
Company Act of 1940 which maintain a level per-share value, invest principally
in investments described in the foregoing subsections (a) throughand (fc)
and have total assets in excess of $50,000,000.00;


 


(h)                                 the
acquisition of fee interests or long- term ground lease interests by the
Borrower or its Subsidiaries in (i) Real Estate which is utilized for
income-producing office properties located in the United States or the District
of Columbia and businesses and investments incidental thereto, and (ii) subject
to the restrictions set forth in §8.3(j), the acquisition of Land Assets to be
developed for the foregoing purposes and Development Properties to be used for
the purposes set forth in §8.3(h)(i);


 


(i)                                     Investments
by the Borrower or Wholly Owned Subsidiaries of the Borrower in Wholly Owned Subsidiaries
of the Borrower;


 


(j)                                     Investments
in Land Assets, provided that the aggregate Investment therein shall not exceed
five percent (5%) of Gross Asset Value;


 


(k)                                  Investments
in Mortgage Receivables and mezzanine loans secured by properties (orexcluding mezzanine loans secured by equity
interests in Persons owning properties) of the types described in §§8.3(h)(i), (m) or
(o), and in the Multifamily Facility, provided that the aggregate
Investment therein shall not exceed fiveseven
and one-half percent (57.5%) of
Gross Asset Value;


 


(l)                                     Investments
in non-wholly owned Subsidiaries and Unconsolidated Affiliates, provided that
the aggregate Investment therein shall not exceed tenfifteen percent (1015%) of Gross Asset Value;


 


(m)                               Investments
in Development Properties in respect of Construction in Progress for properties
of the type described in §8.3(h)(i), provided that the aggregate construction
and development budget for Construction in Progress (including land), together
with any Investments in Mortgage Receivables or
Mezzanine Mortgage Receivables directly or 


 


96

















 


indirectly
secured by real estate in respect of Construction in Progress
(which amount shall include any amounts to be advanced under such Mortgage Receivable or Mezzanine Mortgage
Receivable), shall not exceed ten percent (10%) of Gross Asset Value;


 


(n)                                 Investments
in Tenant In Common Assets, provided that the aggregate Investment therein
shall not exceed seventwo and
one-half percent (7.52.5%) of Gross
Asset Value; and


 


(o)                                 Investments
in income-producing Real Estate (other than office properties) located in the
United States or the District of Columbia and businesses and investments
incidental thereto, provided that the aggregate Investment therein shall not
exceed five percent (5%) of Gross Asset Value;


 


(p)                                 Investments in bonds of Publicly Traded REITs (limited to office,
industrial, self-storage, multi-family or retail Publicly Traded REITs),
provided that the aggregate Investment therein shall not exceed two and
one-half percent (2.5%) of Gross Asset Value;


 


(q)                                 Investments in preferred or common stock of Publicly Traded REITs
(limited to office, industrial, self-storage, multi-family or retail Publicly
Traded REITs), provided that the aggregate Investment therein shall not exceed
two and one-half percent (2.5%) of Gross Asset Value; and


 


(r)                                    Investments in Mezzanine Mortgage Receivables,
provided that the aggregate Investment therein shall not exceed two and
one-half percent (2.5%) of Gross Asset Value.


 


(s)                                  Investments in Real Estate of the types set forth in §§ 8.3(h), (j),
(m), (n) or (o) effected through an exchange of like-kind property
(other than any Mortgaged Property) permitted under § 1031 of the Code and cash
proceeds from the sale of assets which are to be used to acquire replacement
property, in each case being held by an intermediary pending the close of such
exchange of property.


 


Notwithstanding the
foregoing, in no event shall the aggregate value of the holdings of the Borrower,
the Guarantors and their respective Subsidiaries in the Investments described
in §8.3(j)-(os) exceed twenty-five
percent (25%) of Gross Asset Value at any time.


 


For the purposes of this
§8.3, the Investment of the Borrower, any Guarantor or its Subsidiaries in any non-Wholly
Owned Subsidiaries and Unconsolidated Affiliates will equal (without
duplication) the sum of (i) such Person’s pro rata share of Investment in
Land Assets; plus (ii) such Person’s pro rata share of any other
Investments valued at the GAAP book value; plus (iii) such Person’s
pro-rata share of Construction in Progress.


 


§8.4                          Merger,
Consolidation.  Other than with
respect to or in connection with any Internalization
permitted under §7.15 or any disposition permitted under §8.8, the Borrower
will not, nor will it permit the Guarantors or any of their respective Subsidiaries
to, become a party to any dissolution, liquidation, disposition of all or
substantially all of its assets or business, merger, reorganization,
consolidation or other business combination or agree to effect any asset 


 


97

















 


acquisition, stock acquisition or other acquisition
individually or in a series of transactions which may have a similar effect as
any of the foregoing, in each case without the prior written consent of the
Required Lenders.  Notwithstanding the
foregoing, so long as no Default or Event of Default has occurred and is
continuing immediately before and after giving effect thereto, the following
shall be permitted: (i)  without
the consent of the Agent or any Lender:  (i) the
merger or consolidation of one or more of the Subsidiaries of the Borrower with
and into the Borrower (it being understood and agreed that in any such event the
Borrower will be the surviving Person), (ii) the merger or consolidation
of two or more Subsidiaries of the Borrower; provided that no such
merger or consolidation shall involve any Subsidiary that is a Guarantor unless
such Guarantor will be the surviving Person or (iii, (iii) the liquidation or dissolution of any Subsidiary of the
Borrower that does not own any assets so long as such Subsidiary is not a
Guarantor (or if such Subsidiary is a Guarantor, so long as Borrower and such
Subsidiary comply with the provisions of §5.7), or (iv) the
acquisition of all or substantially all of the assets of another Person in a
bona fide arm’s length transaction that otherwise satisfies the requirements of
§7.127.14 and §8.3 and which does
not create or result in a Default or Event of Default.


 


§8.5                          Sale
and Leaseback.  The Borrower will
not, and will not permit its Subsidiaries, to enter into any arrangement,
directly or indirectly, whereby the Borrower or any such Subsidiary shall sell
or transfer any Real Estate owned by it in order that then or thereafter the
Borrower or any such Subsidiary shall lease back such Real Estate without the
prior written consent of Agent, such consent not to be unreasonably withheld.


 


§8.6                          Compliance
with Environmental Laws.  None of the
Borrower nor any Guarantor will, nor will any of them permit any of their
respective Subsidiaries or any other Person to, do any of the following: (a) use
any of the Real Estate or any portion thereof as a facility for the handling,
processing, storage or disposal of Hazardous Substances, except for quantities
of Hazardous Substances used in the ordinary course of operating office
properties and non-office properties as permitted under this Agreement and in
material compliance with all applicable Environmental Laws, (b) cause or
permit to be located on any of the Real Estate any underground tank or other
underground storage receptacle for Hazardous Substances except in full
compliance with Environmental Laws, (c) generate any Hazardous Substances
on any of the Real Estate except in full compliance with Environmental Laws, (d) conduct
any activity at any Real Estate or use any Real Estate in any manner that could
reasonably be contemplated to cause a Release of Hazardous Substances on, upon
or into the Real Estate or any surrounding properties or any threatened Release
of Hazardous Substances which mightcould
reasonably be expected to give rise to liability under CERCLA or any other
Environmental Law, or (e) directly or indirectly transport or arrange for
the transport of any Hazardous Substances (except in compliance with all
Environmental Laws), except with respect to any
Real Estate that is not a Mortgaged Property where any such use,
generation, conduct or other activity has not had and could not reasonably be
expected to have a Material Adverse Effect.


 


The
Borrower and the Guarantors shall, and shall cause their respective Subsidiaries
to:


 


(i)                                     in
the event of any change in Environmental Laws governing the assessment, release
or removal of Hazardous Substances, which change either adds any Hazardous
Substances to its applicability, decreases any threshold at which any action
must be taken with respect to remediation of any Hazardous Substances, or
institutes more burdensome 


 


98

















 


requirements with respect
to testing for or storage or containment of any Hazardous Substances (or has
the effect of any of the foregoing), take all reasonable action (including,
without limitation, the conducting of engineering tests at the sole expense of
the Borrower) to determine whether such
Hazardous Substances are or ever were Released or disposed of on any Real Estate
in violation of applicable Environmental Laws; and


 


(ii)                                  if
any Release or disposal of Hazardous Substances which any Person may be legally
obligated to contain, correct or otherwise remediate or which may otherwise
expose it to liability shall occur or shall have occurred on any Real Estate
(including without limitation any such Release or disposal occurring prior to
the acquisition or leasing of such Real Estate by the Borrower, any such
Guarantor or any such Subsidiary), the Borrower shall, after obtaining
knowledge thereof, cause the prompt containment and removal of such Hazardous
Substances and remediation of the Real Estate in full compliance with all
applicable Environmental Laws; provided, that the Borrower, the
Guarantors and their respective Subsidiaries shall be deemed to be in
compliance with Environmental Laws for the purpose of this clause (ii), and in compliance with this § 8.6 as it relates
to matters addressed by this clause (ii), so long as it or a responsible
third party with sufficient financial resources is taking reasonable action to
remediate or manage any event of noncompliance in accordance with applicable
law to the reasonable satisfaction of the Agent and no legal or administrative action
shall have been commenced or filed by any enforcement agency to require
remediation, containment, mitigation or other action.  The Agent may engage its own Environmental
Engineer to review the environmental assessments and the compliance with the
covenants contained herein.


 


(iii)                               At
any time during the continuance of an Event of Default hereunder the Agent may
at its election (and will at the request of the Required Lenders) obtain such
environmental assessments of any or all of the Real Estate prepared by an
Environmental Engineer as may be necessary or advisable for the purpose of
evaluating or confirming (i) whether any Hazardous Substances are present
in the soil or water at or adjacent to any such Real Estate and (ii) whether
the use and operation of any such Real Estate complies with all Environmental
Laws to the extent required by the Loan Documents.  Additionally, at any time that the Agent or
the Required Lenders shall have reasonable and objective grounds to believe
that a Release or threatened Release of Hazardous Substances which any Person
may be legally obligated to contain, correct or otherwise remediate or which
otherwise may expose such Person to liability may have occurred, relating to
any Real Estate, or that any of the Real Estate is not in compliance with
Environmental Laws to the extent required by the Loan Documents, and such
Release or threatened Release or non-compliance involves estimated or potential
liabilities for remediation or compliance of $500,000.00 or more, as determined
by the Agent in its sole and absolute discretion, the Borrower shall promptly
upon the request of Agent obtain and deliver to Agent such environmental
assessments of such Real Estate prepared by an Environmental Engineer as may be
necessary or advisable for the purpose of evaluating or confirming (i) whether
any Hazardous Substances are present in the soil or water at or adjacent to
such Real Estate and (ii) whether the use and operation of such Real
Estate comply with all Environmental Laws to the extent required by the Loan
Documents.  Environmental assessments may
include detailed visual inspections of such Real Estate including, without
limitation, any and all storage areas, storage tanks, drains, dry wells and
leaching areas, and the taking of soil samples, as well as such other
investigations or analyses as are reasonably necessary or appropriate for a
complete 


 


99

















 


determination of the
compliance of such Real Estate and the use and operation thereof with all
applicable Environmental Laws.  All environmental
assessments contemplated by this §8.6 shall be at the sole cost and expense of
the Borrower.


 


§8.7                          Distributions.


 


(a)                                  (i) The
Borrower shall not pay any Distribution to the partners, members or other
owners of the Borrower, and REIT shall not pay any Distribution to its
partners, members or other owners, during any period of four (4) consecutive
calendar quarters to the extent that such Distribution would cause the
aggregate Distributions (less any amount of such Distribution constituting
Dividend Reinvestment Proceeds) paid or declared during such period to exceed
ninety-five percent (95%) of such Person’s Funds from Operations for such period;
provided that so long as no Default or Event of Default shall be continuing or
would arise as a result thereof, an amount not to exceed $15,000,000.00 in any
period of four (4) consecutive fiscal quarters paid to redeem Equity
Interests in Borrower or REIT shall not be considered Distributions for the
purpose of the foregoing limit; and provided  further that the
limitations contained in this §8.7(a) shall not preclude the Borrower from
making Distributions in an amount equal to the minimum distributions required
under the Code to maintain the REIT Status of REIT, as evidenced by a
certification of the principal financial or accounting officer of REIT
containing calculations in detail reasonably satisfactory in form and substance
to the Agent.


 


(b)                                 If
an Event of Default shall have occurred and be continuing, the Borrower shall
make no Distributions, and REIT shall not pay any Distribution to its partners,
members or other owners, other than Distributions in an amount equal to the
minimum distributions required under the Code to maintain the REIT Status of REIT,
as evidenced by a certification of the principal financial or accounting
officer of REIT containing calculations in detail reasonably satisfactory in
form and substance to the Agent.


 


(c)                                  Notwithstanding
the foregoing, at any time when an Event of Default under §12.1(a) or (b) shall
have occurred, an Event of Default as to Borrower or REIT under §12.1 (g), (h) or
(i) shall have occurred, or the maturity of the Obligations has been
accelerated, neither the Borrower nor REIT shall make any Distributions
whatsoever, directly or indirectly.


 


§8.8                          Asset
Sales.  The Borrower will not, and
will not permit the Guarantors or their respective Subsidiaries to, sell,
transfer or otherwise dispose of any material asset other than pursuant to a
bona fide arm’s length transaction. 
Neither the Borrower, any Guarantor nor any Subsidiary thereof shall
sell, transfer or otherwise dispose of any Real Estate in one transaction or a
series of transactions during any four (4) consecutive fiscal quarters in
excess of an amount equal to twenty percent (20%) of Gross Asset Value as at
the beginning of such four (4) quarter period, except as the result of a
condemnation or casualty, without the prior written consent of Agent and the
Required Lenders.


 


§8.9                          Restriction
on Prepayment of Indebtedness.  The Borrower
and the Guarantors will not, and will not permit their respective Subsidiaries
to, (a) during the existence of any Event of Default, prepay, redeem,
defease, purchase or otherwise retire (except for regularly scheduled
installments of principal) the principal amount, in whole or in part, of any
Indebtedness other than the Obligations; provided, that the foregoing shall
not prohibit (x) the 


 


100

















 


prepayment of Indebtedness which is financed solely
from the proceeds of a new loan which would otherwise be permitted by the terms
of §8.1; and (y) the prepayment, redemption, defeasance or other
retirement of the principal of Indebtedness secured by Real Estate which is
satisfied solely from the proceeds of a sale of the Real Estate securing such
Indebtedness or proceeds resulting from a casualty or condemnation relating to
such Real Estate (and such insurance or condemnation proceeds are not otherwise
required by the terms of any applicable loan documents to be applied to the
restoration or rebuilding of such Real Estate); or (b) modify any document
evidencing any Indebtedness (other than the Obligations) to accelerate the
maturity date or required payments of principal of such Indebtedness during the
existence of an Event of Default.


 


§8.10                    Zoning and Contract Changes and Compliance.  Except with the Agent’s prior written consent,
neither the Borrower nor any Guarantor shall (i) initiate or consent to
any zoning reclassification of any of its Mortgaged Property or seek any
variance under any existing zoning ordinance or use or permit the use of any
Mortgaged Property in any manner that could reasonably be expected to result in
such use becoming a non-conforming use under any zoning ordinance or any other
applicable land use law, rule or regulation or (ii) initiate any
change in any laws, requirements of governmental authorities or obligations
created by private contracts and Leases which now or hereafter could reasonably
be expected to materially adversely affect the ownership, occupancy, use or
operation of any Mortgaged Property.


 


§8.11                    Derivatives
Contracts.  Neither the Borrower, the
Guarantors nor any of their respective Subsidiaries shall contract, create,
incur, assume or suffer to exist any Derivatives Contracts except for interest
rate swap, collar, cap or similar agreements providing interest rate protection
and currency swaps and currency options made in the ordinary course of business
and permitted pursuant to §8.1.


 


§8.12                    Transactions
with Affiliates.  The Borrower shall
not, and shall not permit any Guarantor or Subsidiary of any of them to, permit
to exist or enter into, any transaction (including the purchase, sale, lease or
exchange of any property or the rendering of any service) with any Affiliate
(but not including any Subsidiary of REIT, the Borrower or any other Guarantor),
except (i) transactions in connection with
Management Agreements or other property management agreements relating to Real
Estate other than the Mortgaged Properties, (ii) transactions in
connection with the Internalization, (iii) transactions set forth on Schedule
6.146.15 attached hereto and (iiiv) transactions pursuant to the reasonable
requirements of the business of such Person and upon fair and reasonable terms
which are no less favorable to such Person than would be obtained in a
comparable arm’s length transaction with a Person that is not an Affiliate.


 


§8.13                    Equity
Pledges.  Except for Liens permitted under
§8.2(i)(A), (ii), (v), (vi) and (viii), neither REIT nor Borrower will
create or incur or suffer to be created or incurred any Lien on any of its
direct or indirect legal, equitable or beneficial interest in the Borrower or
any Subsidiary of Borrower, including, without limitation, any Distributions or
rights to Distributions on account thereof (provided that the foregoing shall
not be deemed to prohibit a Subsidiary that owns Real Estate to have Liens
permitted pursuant to §8.2(iii)).


 


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§8.14                    Advisory Fees. 
The Borrower and the Guarantors shall not, and shall not permit any of
their respective Subsidiaries to, pay any advisory fees or other payments under
the Advisory Agreement or any replacement thereof to any advisor that is an
Affiliate of the Borrower, such Guarantor or such Subsidiary in the event that a
Default or Event of Default shall have occurred and be continuing.


 


§8.15                    Changes
in Plans and Specifications.  No changes
will be made in the Plans and Specifications without the prior written approval
of Agent; provided, however, that Borrower or Three Eldridge Place Owner may
make changes to the Plans and Specifications without Agent’s approval if (i) Borrower
or Three Eldridge Place Owner obtains the approval of all parties whose
approval is required, including any tenants under Leases, sureties, and any
Governmental Authority to the extent approval from such parties is required; (ii) the
structural integrity of the Improvements is not impaired; (iii) no
material change in the use, size, scope, or architectural appearance is
effected; or (iv) the performance of the mechanical, electrical, and life
safety systems of the Improvements is not adversely affected.  Notwithstanding the foregoing, from and after
the First Amendment Date Three Eldridge Place Owner shall not without Agent’s
approval (which may be conditioned upon an increase in the Eldridge Reserve)
make any changes to the Plans and Specifications or the Improvements that would
individually or in the aggregate increase the cost to complete the Improvements
under the Eldridge Construction Contract by more than $1,000,000.00, or
otherwise expand or increase the scope of work to be performed under the
Eldridge Construction Contract.  Without
limiting the foregoing, no tenant improvement work for Three Eldridge Place
shall be performed under the Eldridge Construction Contract.


 


§8.16                    Management
Fees.  Borrower shall not pay, and shall
not permit any Guarantor to pay, any management fees or other payments under
any Management Agreement for any Mortgaged Property to Borrower, any other
manager that is an Affiliate of Borrower or any other manager in the event that
an Event of Default shall have occurred and be continuing unless approved in
writing by Agent.


 


§9.                                FINANCIAL COVENANTS.


 


The Borrower covenants
and agrees that, so long as any Loan, Note or Letter of Credit is outstanding
or any Lender has any obligation to make any Loans or issue any Letter of
Credit:


 


§9.1                          Borrowing
Base.  The Borrower (i) shall not
permit the outstanding principal balance of the Loans and the Letter of Credit
Liabilities to be greater than the Borrowing Base Availability, (ii) shall
not permit the aggregate Borrowing Base Value to be less than $200,000,00.00,
and (iii) shall not permit the Borrowing Base to be comprised of less than
four (4) Mortgaged Properties; provided, however, that upon a violation of
this § 9.1 by Borrower, no Event of Default shall exist hereunder in the event
Borrower cures such Default within five (5) Business Days of the occurrence
of such event.


 


§9.2                          Consolidated Total Indebtedness to Gross
Asset Value.  The Borrower will not permit Consolidated
Total Indebtedness to exceed seventy percent (70%) of Gross Asset Value.


 


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§9.3                          Adjusted Consolidated EBITDA to
Consolidated Fixed Charges.  The Borrower
will not permit the ratio of Adjusted Consolidated EBITDA determined as of the
end of the most recently ended calendar quarter to Consolidated Fixed Charges
for the most recently ended calendar quarter annualized, to be less than 1.45
to 1.00.1.30 to 1.00 during the Initial
Term, or 1.35 to 1.00 during the Extension Term.


 


§9.4                          Minimum Consolidated Tangible Net Worth. 
The Borrower will not at any time permit Consolidated Tangible Net Worth
to be less than the sum of (i) $1,000,000,000.00,1,200,000,000.00, plus (ii) seventy-five
percent (75%) of the sum of (A) any additional Net Offering Proceeds after
the date hereofFirst Amendment Date,
plus (B) the value of interests in the Borrower or interests in REIT
issued upon the contribution of assets to the Borrower or its Subsidiaries.


 


§9.5                          Unhedged Variable Rate Debt.  The
Borrower shall not permit the Unhedged Variable Rate Debt of the Borrower, the
Guarantors and their respective Subsidiaries to exceed twenty percent (20%) of
Gross Asset Value.


 


§10.                          CLOSING CONDITIONS.


 


The obligation of the
Lenders to make the initial Loans or issue the initial Letter(s) of
Credit shall be subject to the satisfaction of the following conditions precedent:


 


§10.1                    Loan Documents. 
Each of the Loan Documents shall have been duly executed and delivered
by the respective parties thereto and shall be in full force and effect.  The Agent shall have received a fully
executed counterpart of each such document.


 


§10.2                    Certified Copies of Organizational
Documents.  The Agent shall have received from the
Borrower and each Guarantor a copy, certified as of a recent date by the
appropriate officer of each State in which such Person is organized and (with respect to any Subsidiary Guarantor that
owns a Mortgaged Property) in which such Mortgaged Property is located and
a duly authorized officer, partner or member of such Person, as applicable, to
be true and complete, of the partnership agreement, corporate charter or operating
agreement and/or other organizational agreements of the Borrower and each such
Guarantor, as applicable, and its qualification to do business, as applicable,
as in effect on such date of certification;
provided that, if Agent has previously been provided with a certified copy of
such Person’s partnership agreement, operating agreement or other
organizational agreement (other than a publicly-filed charter document), it
shall be sufficient to certify that such document has not changed since its
certification to Agent.


 


§10.3                    Resolutions. 
All action on the part of the Borrower and each Guarantor, as
applicable, necessary for the valid execution, delivery and performance by such
Person of this Agreement and the other Loan Documents to which such Person is
or is to become a party shall have been duly and effectively taken, and
evidence thereof reasonably satisfactory to the Agent shall have been provided
to the Agent.


 


§10.4                    Incumbency Certificate; Authorized
Signers.  The Agent shall have received from the Borrower
and each Guarantor an incumbency certificate, dated as of the ClosingFirst Amendment Date, signed by a duly
authorized officer of such Person and giving the name and 


 


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bearing a specimen signature of each individual who
shall be authorized to sign, in the name and on behalf of such Person, each of
the Loan Documents to which such Person is or is to become a party.  The Agent shall have also received from the Borrower
a certificate, dated as of the ClosingFirst
Amendment Date, signed by a duly authorized representative of the Borrower
and giving the name and specimen signature of each Authorized Officer who shall
be authorized to make Loan Requests, Letter of Credit Requests and
Conversion/Continuation Requests and to give notices and to take other action
on behalf of the Borrower under the Loan Documents.


 


§10.5                    Opinion of Counsel. 
The Agent shall have received an opinion addressed to the Lenders and
the Agent and dated as of the ClosingFirst
Amendment Date from counsel to the Borrower and each Guarantor in form and
substance reasonably satisfactory to the Agent.


 


§10.6                    Payment of Fees. 
The Borrower shall have paid to the Agent the fees payable pursuant to
§4.2.


 


§10.7                    Insurance.  The Agent shall have received certificates
evidencing that the Agent and the Lenders are named as mortgagee and/or additional
insured, as applicable, on all policies of insurance as required by this
Agreement or the other Loan Documents.


 


§10.8                    Performance; No Default.  The
Borrower and each Guarantor shall have performed and complied with all terms
and conditions herein required to be performed or complied with by it on or
prior to the ClosingFirst Amendment
Date, and on the ClosingFirst Amendment
Date there shall exist no Default or Event of Default.


 


§10.9                    Representations and Warranties. 
The representations and warranties made by the Borrower and each
Guarantor in the Loan Documents or otherwise made by or on behalf of the
Borrower, the Guarantors and their respective Subsidiaries in connection
therewith or after the date thereof shall have been true and correct in all
material respects when made and shall also be true and correct in all material
respects on the Closing DateFirst
Amendment Date, except to the extent of changes resulting from transactions
permitted by the Loan Documents and except as previously disclosed in writing
by the Borrower to Agent and approved by the Agent in writing (which
disclosures shall be deemed to amend the Schedules and other disclosures
delivered as contemplated in this Agreement) (it being understood and agreed
that any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct only as of such
specified date).


 


§10.10              Proceedings and Documents. 
All proceedings in connection with the transactions contemplated by this
Agreement and the other Loan Documents shall be reasonably satisfactory to the
Agent and the Agent’s counsel in form and substance, and the Agent shall have
received all information and such counterpart originals or certified copies of
such documents and such other certificates, opinions, assurances, consents,
approvals or documents as the Agent and the Agent’s counsel may reasonably
require.


 


§10.11              Eligible Real Estate Qualification Documents.  The Eligible Real Estate
Qualification Documents for each Mortgaged Property included in the Borrowing
Base as of the First Amendment Date shall have been delivered to the Agent at
the Borrower’s expense and shall be in form and substance reasonably satisfactory
to the Agent.


 


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§10.12              Compliance Certificate and
Borrowing Base Certificate.  The Agent
shall have received a Compliance Certificate and
a Borrowing Base Certificate dated as of the date of the ClosingFirst Amendment Date demonstrating compliance
with each of the covenants calculated therein as of the most recent calendar
quarter for which REIT has provided financial statements under §6.4 adjusted in
the best good faith estimate of REIT as of the ClosingFirst Amendment Date.


 


§10.13              Appraisals.  The Agent shall have received Appraisals of
each of the Mortgaged Properties in form and substance reasonably satisfactory
to the Agent, and the Agent shall have determined an Appraised Value for such
Mortgaged Properties.


 


§10.14              Consents.  The Agent
shall have received evidence reasonably satisfactory to the Agent that all
necessary stockholder, partner, member or other consents required in connection
with the consummation of the transactions contemplated by this Agreement and
the other Loan Documents have been obtained.


 


§10.15              Contribution Agreement.  The Agent
shall have received an executed counterpart of the Contribution Agreement.


 


§10.16              Other.  The Agent
shall have reviewed such other documents, instruments, certificates, opinions,
assurances, consents and approvals as the Agent or the Agent’s Special Counsel
may reasonably have requested.


 


§11.                          CONDITIONS TO ALL BORROWINGS.


 


The obligations of the
Lenders to make any Loan or issue any Letter of Credit, whether on or after the
Closing Date, shall also be subject to the satisfaction of the following
conditions precedent:


 


§11.1                    Prior Conditions Satisfied. 
All conditions set forth in §10 shall continue to be satisfied as of the
date upon which any Loan is to be made or any Letter of Credit is to be issued.


 


§11.2                    Representations True; No Default. 
Each of the representations and warranties made by or on behalf of the
Borrower, the Guarantors or any of their respective Subsidiaries contained in
this Agreement, the other Loan Documents or in any document or instrument
delivered pursuant to or in connection with this Agreement shall be true and
correct in all material respects both as of the date as of which they were made
and shall also be true and correct in all material respects as of the time of
the making of such Loan or the issuance of such Letter of Credit, with the same
effect as if made at and as of that time, except to the extent of changes
resulting from transactions permitted by the Loan Documents and except as
previously disclosed in writing by the Borrower to Agent and approved by the
Agent in writing (which disclosures shall be deemed to amend the Schedules and
other disclosures delivered as contemplated in this Agreement) (it being
understood and agreed that any representation or warranty which by its terms is
made as of a specified date shall be required to be true and correct only as of
such specified date), and no Default or Event of Default shall have occurred
and be continuing.


 


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§11.3                    Borrowing Documents. 
The Agent shall have received a fully completed Loan Request for such
Loan and the other documents and information (including, without limitation, a
Compliance Certificate) as required by §2.7,2.6, or a fully completed Letter of Credit Request required by §2.102.9 in the form of Exhibit FH hereto fully completed, as applicable.


 


§11.4                    Endorsement
to Title Policy.  At such times as Agent
shall determine in its discretion prior to each funding, to the extent
available under applicable law, a “date down” endorsement to each Title Policy
indicating no change in the state of title and containing no survey exceptions
not approved by the Agent, which endorsement shall, expressly or by virtue of a
proper “revolving credit” clause or endorsement in each Title Policy, increase
the coverage of each Title Policy to the aggregate amount of all Loans advanced
and outstanding and Letters of Credit issued and outstanding (provided that the
amount of coverage under an individual Title Policy for an individual Mortgaged
Property need not equal the aggregate amount of all Loans), or if such
endorsement is not available, such other evidence and assurances as the Agent
may reasonably require (which evidence may include, without limitation, an
affidavit from the Borrower stating that there have been no changes in title
from the date of the last effective date of the Title Policy).


 


§11.5                    Future
Advances Tax Payment.  As a condition precedent
to any Lender’s obligations to make any Loans available to the Borrower
hereunder, the Borrower will pay to the Agent any mortgage, recording,
intangible, documentary stamp or other similar taxes and charges which the
Agent reasonably determines to be payable as a result of such Loan to any state
or any county or municipality thereof in which any of the Mortgaged Properties
are located, and deliver to the Agent such affidavits or other information
which the Agent reasonably determines to be necessary in connection with such
payment in order to insure that the Mortgages on Mortgaged Property located in
such state secure the Borrower’s obligation with respect to the Loans then
being requested by the Borrower.  The
provisions of this §11.5 shall not limit the Borrower’s obligations under other
provisions of the Loan Documents, including without limitation §15 hereof.


 


§12.                          EVENTS OF DEFAULT; ACCELERATION; ETC.


 


§12.1                    Events of Default and Acceleration. 
If any of the following events (“Events of Default” or, if the giving of
notice or the lapse of time or both is required, then, prior to such notice or
lapse of time, “Defaults”) shall occur:


 


(a)                                  the Borrower shall fail to pay any
principal of the Loans when the same shall become due and payable, whether at
the stated date of maturity or any accelerated date of maturity or at any other
date fixed for payment;


 


(b)                                 the Borrower shall fail to pay any
interest on the Loans, any reimbursement obligations with respect to the
Letters of Credit or any fees or other sums due hereunder or under any of the
other Loan Documents when the same shall become due and payable, whether at the
stated date of maturity or any accelerated date of maturity or at any other
date fixed for payment;


 


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(c)                                  the Borrower shall fail to perform any
other term, covenant or agreement contained in §9;


 


(d)                                 the Borrower, the Guarantors or any of
their respective Subsidiaries shall fail to perform any other term, covenant or
agreement contained herein or in any of the other Loan Documents which they are
required to perform (other than those specified in the other subclauses of this
§12 or in the other Loan Documents);


 


(e)                                  any representation or warranty made by or
on behalf of the Borrower, the Guarantors or any of their respective
Subsidiaries in this Agreement or any other Loan Document, or any report,
certificate, financial statement, request for a Loan, Letter of Credit Request,
or in any other document or instrument delivered pursuant to or in connection
with this Agreement, any advance of a Loan, the issuance of any Letter of
Credit or any of the other Loan Documents shall prove to have been false in any
material respect upon the date when made or deemed to have been made or
repeated;


 


(f)                                    the Borrower, any Guarantor or any of their
Subsidiaries shall fail to pay when due (including, without limitation, at
maturity), or within any applicable period of grace, any principal, interest or
other amount on account any obligation for borrowed money or credit received or
other Indebtedness, or shall fail to observe or perform any term, covenant or
agreement contained in any agreement by which it is bound, evidencing or
securing any obligation for borrowed money or credit received or other
Indebtedness (including under any Derivatives Contract) for such period of time
as would permit (assuming the giving of appropriate notice if required) the
holder or holders thereof or of any obligations issued thereunder to accelerate
the maturity thereof; provided that the events described in §12.1(f) shall
not constitute an Event of Default unless such failure to perform, together
with other failures to perform as described in §12.1(f), involve singly or in
the aggregate obligations for Recourse Indebtedness totaling in excess of $10,000,000.00
or Non-Recourse Indebtedness totaling in excess of $50,000,000.00;


 


(g)                                 the Borrower, any Guarantor or any of
their respective Subsidiaries, (i) shall make an assignment for the
benefit of creditors, or admit in writing its general inability to pay or
generally fail to pay its debts as they mature or become due, or shall petition
or apply for the appointment of a trustee or other custodian, liquidator or
receiver for it or any substantial part of its assets, (ii) shall commence
any case or other proceeding relating to it under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall
take any action to authorize or in furtherance of any of the foregoing;


 


(h)                                 a petition or application shall be filed
for the appointment of a trustee or other custodian, liquidator or receiver of
the Borrower, any Guarantor or any of their respective Subsidiaries or any substantial
part of the assets of any thereof, or a case or other proceeding shall be
commenced against any such Person under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, now or hereafter in effect, and any such
Person shall indicate its approval thereof, consent thereto or acquiescence
therein or such petition, application, case or proceeding shall not have been
dismissed within sixty (60) days following the filing or commencement thereof;


 


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(i)                                     a decree or order is entered appointing a
trustee, custodian, liquidator or receiver for the Borrower, any Guarantor or
any of their respective Subsidiaries or adjudicating any such Person, bankrupt
or insolvent, or approving a petition in any such case or other proceeding, or
a decree or order for relief is entered in respect of any such Person in an
involuntary case under federal bankruptcy laws as now or hereafter constituted;


 


(j)                                     there shall remain in force,
undischarged, unsatisfied and unstayed, for more than forty-five (45) days, one
or more uninsured or unbonded final judgments against (x) the Borrower or
any Guarantor that, either individually or in the aggregate, exceed $25,000,000.00
in any calendar year or (y) any Subsidiary of the Borrower that is not a Subsidiary
Guarantor that, either individually or in the aggregate, exceed $50,000,000.00
in any calendar year;


 


(k)                                  any of the Loan Documents or the
Contribution Agreement shall be canceled, terminated, revoked or rescinded
otherwise than in accordance with the terms thereof or the express prior
written agreement, consent or approval of the Lenders, or any action at law,
suit in equity or other legal proceeding to cancel, revoke or rescind any of
the Loan Documents or the Contribution Agreement shall be commenced by or on
behalf of the Borrower or any Guarantor, or any court or any other governmental
or regulatory authority or agency of competent jurisdiction shall make a
determination, or issue a judgment, order, decree or ruling, to the effect that
any one or more of the Loan Documents or the Contribution Agreement is illegal,
invalid or unenforceable in accordance with the terms thereof;


 


(l)                                     any dissolution, termination, partial or
complete liquidation, merger or consolidation of the Borrower, any Guarantor or
any of their respective Subsidiaries shall occur or any sale, transfer or other
disposition of the assets of the Borrower, any Guarantor or any of their
respective Subsidiaries shall occur, in each case, other than as permitted
under the terms of this Agreement or the other Loan Documents;


 


(m)                               with respect to any Guaranteed Pension
Plan, an ERISA Reportable Event shall have occurred and the Required Lenders
shall have determined in their reasonable discretion that such event reasonably
could be expected to result in liability of the Borrower, the Guarantors or any
of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in
an aggregate amount exceeding $10,000,000.00 and (x) such event in the
circumstances occurring reasonably could constitute grounds for the termination
of such Guaranteed Pension Plan by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer such
Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the
United States District Court to administer such Plan; or (z) the PBGC
shall have instituted proceedings to terminate such Guaranteed Pension Plan;


 


(n)                                 the Borrower, any Guarantor or any of
their respective Subsidiaries or any shareholder, officer, director, partner or
member of any of them shall be indicted for a federal crime, a punishment for
which could include the forfeiture of (i) any assets of the Borrower or
any of their respective Subsidiaries which in the good faith judgment of the
Required Lenders could reasonably be expected to have a Material Adverse
Effect, or (ii) the Collateral;


 


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(o)                                 any Guarantor denies that it has any
liability or obligation under the Guaranty or any other Loan Document, or shall
notify the Agent or any of the Lenders of such Guarantor’s intention to attempt
to cancel or terminate the Guaranty or any other Loan Document;


 


(p)                                 the Borrower, any Guarantor or any of
their respective Subsidiaries shall fail to comply with the covenants set forth
in §8.6 hereof; provided, however, no Event of Default shall
occur hereunder as a result of such failure if such failure relates solely to a
parcel or parcels of Real Estate that are not a
Mortgaged Property whose book value, either individually or in the
aggregate, does not exceed $50,000,000.00;


 


(q)                                 any Change of Control shall occur; or


 


(r)                                    an Event of Default under any of the other
Loan Documents shall occur;


 


then, and in any such
event, the Agent may, and upon the request of the Required Lenders shall, by
notice in writing to the Borrower declare all amounts owing with respect to
this Agreement, the Notes, the Letters of Credit and the other Loan Documents
to be, and they shall thereupon forthwith become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower; provided that in the event
of any Event of Default specified in §12.1(g), §12.1(h) or §12.1(i) as
to Borrower or REIT, all such amounts shall become immediately due and payable
automatically and without any requirement of presentment, demand, protest or
other notice of any kind from any of the Lenders or the Agent.  Upon demand by Agent or the Majority
Revolving CreditRequired Lenders in
their absolute and sole discretion after the occurrence and during the
continuance of an Event of Default, and regardless of whether the conditions
precedent in this Agreement for a Revolving Credit Loan have been satisfied,
the Revolving Credit Lenders will cause a Revolving Credit Loan to be
made in the undrawn amount of all Letters of Credit.  The proceeds of any such Revolving Credit
Loan will be pledged to and held by Agent as security for any amounts that
become payable under the Letters of Credit and all other Obligations.  In the alternative, if demanded by Agent in
its absolute and sole discretion after the occurrence and during the continuance
of an Event of Default, the Borrower will deposit with and pledge to Agent cash
in an amount equal to the amount of all undrawn Letters of Credit.  Such amounts will be pledged to and held by
Agent for the benefit of the Lenders as security for any amounts that become
payable under the Letters of Credit and all other Obligations.  Upon any draws under Letters of Credit, at
Agent’s sole discretion, Agent may apply any such amounts to the repayment of
amounts drawn thereunder and upon the expiration of the Letters of Credit any
remaining amounts will be applied to the payment of all other Obligations or if
there are no outstanding Obligations and Lenders have no further obligation to
make Revolving Credit Loans or issue Letters of Credit or if such excess no
longer exists, such proceeds deposited by the Borrower will be released to the Borrower.


 


§Certain Cure
Periods; Limitation of Cure Periods.


 


§12.2                    (a) Certain
Cure Periods; Limitation of Cure Periods.  Notwithstanding anything contained in §12.1 to the
contrary, (i) no Event of Default shall exist hereunder upon the
occurrence of any failure described in §12.1(b) in the event that the
Borrower cures such Default 


 


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within five (5) Business Days after the date such
payment is due, provided that no such cure period shall apply to any
payments due upon the maturity of the Notes, and (ii) no Event of Default
shall exist hereunder upon the occurrence of any failure described in §12.1(d) in
the event that the Borrower cures (or causes to be cured) such Default within
thirty (30) days following receipt of written notice of such default, provided
that the provisions of this clause (ii) shall not pertain to defaults consisting of a failure to provide
insurance as required by §7.7 with respect to any Mortgaged Property, to any
default (whether of Borrower, Guarantor or any Subsidiary thereof) consisting
of a failure to comply with §7.4(c), §7.12, §7.16,7.14, §7.19, §8.1, §8.2, §8.3, §8.4, §8.7, §8.8 or to any Default
excluded from any provision of cure of defaults contained in any other of the
Loan Documents.


 


§12.3                    Termination of Commitments. 
If any one or more Events of Default specified in §12.1(g), §12.1(h) or
§12.1(i) shall occur with respect to Borrower or REIT, then immediately
and without any action on the part of the Agent or any Lender any unused
portion of the credit hereunder shall terminate and the Lenders shall be
relieved of all obligations to make Loans or issue Letters of Credit to the
Borrower.  If any other Event of Default
shall have occurred, the Agent may, and upon the election of the Majority
Revolving CreditRequired Lenders shall,
by notice to the Borrower terminate the obligation to make Revolving Credit Loans
to and issue Letters of Credit for the Borrower.  No termination under this §12.3 shall relieve
the Borrower of its obligations to the Lenders arising under this Agreement or
the other Loan Documents.


 


§12.4                    Remedies.  In case any
one or more Events of Default shall have occurred and be continuing, and
whether or not the Lenders shall have accelerated the maturity of the Loans
pursuant to §12.1, the Agent on behalf of the Lenders may, and upon the
direction of the Required Lenders shall, proceed to protect and enforce their
rights and remedies under this Agreement, the Notes and/or any of the other
Loan Documents by suit in equity, action at law or other appropriate
proceeding, including to the full extent permitted by applicable law the
specific performance of any covenant or agreement contained in this Agreement
and the other Loan Documents, the obtaining of the ex parte appointment of a
receiver, and, if any amount shall have become due, by declaration or
otherwise, the enforcement of the payment thereof.  No remedy herein conferred upon the Agent or
the holder of any Note is intended to be exclusive of any other remedy and each
and every remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute or any other provision of law. 
Notwithstanding the provisions of this Agreement providing that the
Loans may be evidenced by multiple Notes in favor of the Lenders, the Lenders
acknowledge and agree that only the Agent may exercise any remedies arising by
reason of a Default or Event of Default. 
If the Borrower or any Guarantor fails to perform any agreement or
covenant contained in this Agreement or any of the other Loan Documents beyond
any applicable period for notice and cure, Agent may itself perform, or cause
to be performed, any agreement or covenant of such Person contained in this
Agreement or any of the other Loan Documents which such Person shall fail to
perform, and the out-of-pocket costs of such performance, together with any
reasonable expenses, including reasonable attorneys’ fees actually incurred
(including attorneys’ fees incurred in any appeal) by Agent in connection
therewith, shall be payable by the Borrower upon demand and shall constitute a
part of the Obligations and shall if not paid within five (5) days after
demand bear interest at the rate for overdue amounts as set forth in this
Agreement.  In the event that all or any
portion of the Obligations is collected by or through an 


 


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attorney-at-law, the Borrower shall pay all costs of
collection including, but not limited to, reasonable attorney’s fees.


 


In addition to the foregoing remedies and not in lieu
thereof, upon the occurrence of any Event of Default, Agent may, subject to the
terms and provisions of this Agreement, and at the request of the Required
Lenders shall, take possession of Three Eldridge Place and complete the
construction thereof and do anything which is necessary or appropriate in its
sole judgment to fulfill the obligations of Borrower and Three Eldridge Place
Owner under this Agreement and the other Loan Documents, including either the
right to avail itself of and procure performance of existing contracts or let
any contracts with the same contractors or others.  Without restricting the generality of the
foregoing and for the purposes aforesaid, Borrower hereby acknowledges and
agrees that Three Eldridge Place Owner has appointed and constituted Agent its
lawful attorney-in-fact with full power of substitution in Three Eldridge Place
to complete the construction in the name of Three Eldridge Place Owner; and
that Agent and Lenders may (i) use unadvanced funds remaining under this Agreement
or which may be reserved, escrowed or set aside for any purposes hereunder at
any time, or to advance funds in excess of the face amount of the Notes, to
complete the construction; (ii) make changes in the Plans and
Specifications which shall be necessary or desirable to complete the construction
in substantially the manner contemplated by the Plans and Specifications; (iii) retain
or employ new general contractors, subcontractors, architects, engineers and
inspectors as shall be required for said purposes; (iv) pay, settle or
compromise all existing bills and claims, which may be liens or security
interests, or to avoid such bills and claims becoming liens against Three
Eldridge Place; (v) execute all applications and certificates in the name
of Three Eldridge Place Owner and prosecute and defend all actions or
proceedings in connection with Three Eldridge Place or the improvements thereon;
(vi) cure defaults under any of the agreements relating to Three Eldridge
Place; and (vii) do any and every act which Three Eldridge Place Owner might
do in its own behalf.


 


§12.5                    Distribution of Collateral Proceeds. 
In the event that, following the occurrence and during the continuance
of any Event of Default, any monies are received in connection with the
enforcement of any of the Loan Documents, or otherwise with respect to the
realization upon any of the Collateral or other assets of the Borrower or the
Guarantors, such monies shall be distributed for application as follows:


 


(a)                                  First, to the payment of, or (as the case
may be) the reimbursement of the Agent for or in respect of, all reasonable
out-of-pocket costs, expenses and disbursements which shall have been paid or
incurred by the Agent to protect or preserve the Collateral or in connection
with the collection of such monies by the Agent, for the exercise, protection
or enforcement by the Agent of all or any of the rights, remedies, powers and
privileges of the Agent or the Lenders under this Agreement or any of the other
Loan Documents or in respect of the Collateral or in support of any provision
of adequate indemnity to the Agent against any taxes or liens which by law
shall have, or may have, priority over the rights of the Agent or the Lenders
to such monies;


 


(b)                                 Second, to all other Obligations
(including any interest, expenses or other obligations incurred after the
commencement of a bankruptcy) in such order or preference as the Required
Lenders shall determine; provided, that (i) Swing Loans shall be
repaid first, (ii) distributions in respect of such other Obligations
shall include, on a pari passu basis, any Agent’s 


 


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fee payable pursuant to §4.2; (iii) in the event
that any Lender shall have wrongfully failed or refused to make an advance, or to make funds available, under §2.52.4(d), §2.72.6 or §2.102.9(f) and
such failure or refusal shall be continuing, advances made by other Lenders
during the pendency of such failure or refusal shall be entitled to be repaid
as to principal and accrued interest in priority to the other Obligations
described in this subsection (b), and (iv) except as otherwise provided in
clause (iii), Obligations owing to the Lenders with respect to each type of
Obligation such as interest, principal, fees and expenses (but excluding the
Swing Loans) shall be made among the Lenders pro rata and as between Revolving
Credit Loans and Term Loans shall be made pro rata; and provided,
further that the Required Lenders may in their discretion make proper
allowance to take into account any Obligations not then due and payable; and


 


(c)                                  Third, the excess, if any, shall be
returned to the Borrower or to such other Persons as are entitled thereto.


 


§13.                         SETOFF.


 


Regardless of the adequacy of any Collateral, during
the continuance of any Event of Default, any deposits (general or specific,
time or demand, provisional or final, regardless of currency, maturity, or the
branch where such deposits are held) or other sums credited by or due from any
Lender to the Borrower or the Guarantors and any securities or other property
of the Borrower or the Guarantors in the possession of such Lender may, without
notice to the Borrower or any Guarantor (any such notice being expressly waived
by the Borrower and each Guarantor) but with the prior written approval of
Agent, be applied to or set off against the payment of Obligations and any and
all other liabilities, direct, or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising, of the Borrower or the
Guarantors to such Lender under the Loan Documents.  Each of the Lenders agree with each other
Lender that if such Lender shall receive from the Borrower or the Guarantors,
whether by voluntary payment, exercise of the right of setoff, or otherwise,
and shall retain and apply to the payment of the Note or Notes held by such
Lender (but excluding the Swing Loan Note) any amount in excess of its ratable
portion of the payments received by all of the Lenders with respect to the
Notes held by all of the Lenders, such Lender will make such disposition and
arrangements with the other Lenders with respect to such excess, either by way
of distribution, pro  tanto assignment of claims, subrogation or
otherwise as shall result in each Lender receiving in respect of the Notes held
by it its proportionate payment as contemplated by this Agreement; provided
that if all or any part of such excess payment is thereafter recovered from
such Lender, such disposition and arrangements shall be rescinded and the
amount restored to the extent of such recovery, but without interest.


 


§14.                         THE AGENT.


 


§14.1                    Authorization.  The
Agent is authorized to take such action on behalf of each of the Lenders and to
exercise all such powers as are hereunder and under any of the other Loan
Documents and any related documents delegated to the Agent, together with such
powers as are reasonably incident thereto, provided that no duties or responsibilities
not expressly assumed herein or therein shall be implied to have been assumed
by the Agent.  The obligations of the
Agent hereunder are primarily administrative in nature, and nothing contained
in this Agreement or any of the other Loan Documents shall be construed to
constitute the Agent as a trustee for 


 


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any Lender or to
create an agency or fiduciary relationship. 
Agent shall act as the contractual representative of the Lenders hereunder,
and notwithstanding the use of the term “Agent”, it is understood and agreed
that Agent shall not have any fiduciary duties or responsibilities to any
Lender by reason of this Agreement or any other Loan Document and is acting as
an independent contractor, the duties and responsibilities of which are limited
to those expressly set forth in this Agreement and the other Loan
Documents.  The Borrower and any other
Person shall be entitled to conclusively rely on a statement from the Agent
that it has the authority to act for and bind the Lenders pursuant to this
Agreement and the other Loan Documents.


 


§14.2                    Employees and Agents. 
The Agent may exercise its powers and execute its duties by or through
employees or agents and shall be entitled to take, and to rely on, advice of
counsel concerning all matters pertaining to its rights and duties under this
Agreement and the other Loan Documents. The Agent may utilize the services of
such Persons as the Agent may reasonably determine, and all reasonable fees and
expenses of any such Persons shall be paid by the Borrower.


 


§14.3                    No Liability. 
Neither the Agent nor any of its shareholders, directors, officers or
employees nor any other Person assisting them in their duties nor any agent, or
employee thereof, shall be liable for (a) any waiver, consent or approval given
or any action taken, or omitted to be taken, in good faith by it or them
hereunder or under any of the other Loan Documents, or in connection herewith
or therewith, or be responsible for the consequences of any oversight or error
of judgment whatsoever, except that the Agent or such other Person, as the case
may be, shall be liable for losses due to its willful misconduct or gross
negligence as finally determined by a court of competent jurisdiction after the
expiration of all applicable appeal periods or (b) any action taken or not
taken by Agent with the consent or at the request of the Required Lenders.  The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Agent for the account of the Lenders, unless the
Agent has received notice from a Lender or the Borrower referring to the Loan
Documents and describing with reasonable specificity such Default or Event of
Default and stating that such notice is a “notice of default”.


 


§14.4                    No Representations. 
The Agent shall not be responsible for the execution or validity or
enforceability of this Agreement, the Notes, any of the other Loan Documents or
any instrument at any time constituting, or intended to constitute, collateral
security for the Notes, or for the value of any such collateral security or for
the validity, enforceability or collectability of any such amounts owing with
respect to the Notes, or for any recitals or statements, warranties or
representations made herein, or any agreement, instrument or certificate
delivered in connection therewith or in any of the other Loan Documents or in
any certificate or instrument hereafter furnished to it by or on behalf of the
Borrower, the Guarantors or any of their respective Subsidiaries, or be bound
to ascertain or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements herein or in any of the other Loan
Documents.  The Agent shall not be bound
to ascertain whether any notice, consent, waiver or request delivered to it by
the Borrower, the Guarantors or any holder of any of the Notes shall have been
duly authorized or is true, accurate and complete.  The Agent has not made nor does it now make
any representations or warranties, express or implied, nor does it assume any
liability to the Lenders, with respect to the creditworthiness or financial
condition of the Borrower, the 


 


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Guarantors or any
of their respective Subsidiaries, or the value of the Collateral or any other
assets of the Borrower, any Guarantor or any of their respective Subsidiaries.  Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender, and
based upon such information and documents as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will,
independently and without reliance upon the Agent or any other Lender, based
upon such information and documents as it deems appropriate at the time,
continue to make its own credit analysis and decisions in taking or not taking
action under this Agreement and the other Loan Documents.  Agent’s Special Counsel has only represented
Agent and KeyBank in connection with the Loan Documents and the only attorney
client relationship or duty of care is between Agent’s Special Counsel and
Agent or KeyBank. Each Lender has been independently represented by separate
counsel on all matters regarding the Loan Documents and the granting and
perfecting of liens in the Collateral.


 


§14.5                    Payments.


 


(a)                                  A payment by the Borrower or any
Guarantor to the Agent hereunder or under any of the other Loan Documents for
the account of any Lender shall constitute a payment to such Lender.  The Agent agrees to distribute to each Lender
not later than one Business Day after the Agent’s receipt of good funds,
determined in accordance with the Agent’s customary practices, such Lender’s
pro rata share of payments received by the Agent for the account of the Lenders
except as otherwise expressly provided herein or in any of the other Loan Documents.  In the event that the Agent receives payment
prior to 2:00 p.m. (Cleveland time) on a Business Day and fails to distribute
such amounts the same Business Day, the Agent shall pay interest on such amount
at a rate per annum equal to the Federal Funds Effective Rate from time to time
in effect.


 


(b)                                 If in the opinion of the Agent the
distribution of any amount received by it in such capacity hereunder, under the
Notes or under any of the other Loan Documents might involve it in liability,
it may refrain from making such distribution until its right to make such
distribution shall have been adjudicated by a court of competent
jurisdiction.  If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the
Agent is to be repaid, each Person to whom any such distribution shall have
been made shall either repay to the Agent its proportionate share of the amount
so adjudged to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court. 
In the event that the Agent shall refrain from making any distribution
of any amount received by it as provided in this §14.5(b), the Agent shall
endeavor to hold such amounts in an interest bearing account and at such time
as such amounts may be distributed to the Lenders, the Agent shall distribute
to each Lender, based on their respective Commitment Percentages, its pro
rata share of the interest or other earnings from such deposited amount.


 


(c)                                  Notwithstanding anything to the contrary
contained in this Agreement or any of the other Loan Documents, any Lender that
fails (i) to make available to the Agent its pro rata share of any Loan or
participation in a Letter of Credit or Swing Loan, (ii) to comply with the
provisions of §13 with respect to making dispositions and arrangements with the
other Lenders, where such Lender’s share of any payment received, whether by
setoff or otherwise, is in excess of its pro rata share of such payments due
and payable to all of the Lenders, in each 


 


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case as, when and
to the full extent required by the provisions of this Agreement, or (iii) to
perform any other obligation within the time period specified for performance,
or if no time period is specified, if such failure continues for a period of
five (5) Business Days after notice from the Agent shall be deemed delinquent
(a “Delinquent Lender”) and shall be deemed a Delinquent Lender until such time
as such delinquency is satisfied.  In
addition to the rights and remedies that may be available to the Agent at law and
in equity, a Delinquent Lender’s right to participate in the administration of
the Loan Documents, including, without limitation, any rights to consent to or
direct any action or inaction of the Agent pursuant to this Agreement or
otherwise, or to be taken into account in the calculation of Majority
Revolving Credit Lenders, Required Lenders or any matter requiring approval
of all of the Lenders, shall be suspended while such Lender is a Delinquent Lender.  A Delinquent Lender shall be deemed to have
assigned any and all payments due to it from the Borrower or the Guarantors,
whether on account of outstanding Loans, interest, fees or otherwise, to the
remaining nondelinquent Lenders for application to, and reduction of, their
respective pro rata shares of all outstanding Loans.  The Delinquent Lender hereby authorizes the
Agent to distribute such payments to the nondelinquent Lenders in proportion to
their respective pro rata shares of all outstanding Loans.  The provisions of this Section shall apply
and be effective regardless of whether an Event of Default occurs and is then
continuing, and notwithstanding (i) any other provision of this Agreement to
the contrary or (ii) any instruction of the Borrower as to its desired
application of payments.  The Agent shall
be entitled to (i) withhold or set off, and to apply to the payment of the
obligations of any Delinquent Lender any amounts to be paid to such Delinquent
Lender under this Agreement, (ii) to collect interest from such Lender for the
period from the date on which the payment was due at the rate per annum equal
to the Federal Funds Effective Rate plus one percent (1%), for each day during
such period, and (iii) bring an action or suit against such Delinquent Lender
in a court of competent jurisdiction to recover the defaulted obligations of
such Delinquent Lender.  A Delinquent
Lender shall be deemed to have satisfied in full a delinquency when and if, as
a result of application of the assigned payments to all outstanding Loans of
the nondelinquent Lenders or as a result of other payments by the Delinquent
Lenders to the nondelinquent Lenders, the Lenders’ respective pro rata shares
of all outstanding Loans have returned to those in effect immediately prior to
such delinquency and without giving effect to the nonpayment causing such
delinquency.


 


§14.6                    Holders of Notes. 
Subject to the terms of §18, the Agent may deem and treat the payee of
any Note as the absolute owner or purchaser thereof for all purposes hereof
until it shall have been furnished in writing with a different name by such
payee or by a subsequent holder, assignee or transferee.


 


§14.7                    Indemnity.  The Lenders
ratably agree hereby to indemnify and hold harmless the Agent from and against
any and all claims, actions and suits (whether groundless or otherwise),
losses, damages, costs, expenses (including any expenses for which the Agent
has not been reimbursed by the Borrower as required by §15), and liabilities of
every nature and character arising out of or related to this Agreement, the
Notes, or any of the other Loan Documents or the transactions contemplated or
evidenced hereby or thereby, or the Agent’s actions taken hereunder or
thereunder, except to the extent that any of the same shall be directly caused
by the Agent’s willful misconduct or gross negligence as finally determined by
a court of competent jurisdiction after the expiration of all applicable appeal
periods.  The agreements in this §14.7
shall survive the payment of all amounts payable under the Loan Documents.


 


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§14.8                    Agent as Lender. 
In its individual capacity, KeyBank shall have the same obligations and
the same rights, powers and privileges in respect to its Commitment and the
Loans made by it, and as the holder of any of the Notes as it would have were
it not also the Agent.


 


§14.9                    Resignation. 
The Agent may resign at any time by giving thirty (30) calendar days’
prior written notice thereof to the Lenders and the Borrower.  The Required Lenders may remove the Agent
from its capacity as Agent in the event of the Agent’s willful misconduct or
gross negligence.  The Commitment
Percentage of the Lender that is acting as Agent shall not be taken into
account in the calculation of the Required Lenders for the purpose of removing
the Agent in the event of the Agent’s gross negligence or willful misconduct.  Any such resignation or removal may at Agent’s
option also constitute Agent’s resignation as Issuing Lender and Swing Loan
Lender.  Upon any such resignation or
removal, the Required Lenders, subject to the terms of §18.1, shall have the
right to appoint as a successor Agent and, if applicable, Issuing Lender and
Swing Loan Lender, any Lender or any bank whose senior debt obligations are
rated not less than “A” or its equivalent by Moody’s or not less than “A” or
its equivalent by S&P and which has a net worth of not less than
$500,000,000.00.  Unless a Event of
Default shall have occurred and be continuing, such successor Agent and, if
applicable, Issuing Lender and Swing Loan Lender, shall be reasonably
acceptable to the Borrower.  If no
successor Agent shall have been appointed and shall have accepted such
appointment within thirty (30) days after the retiring Agent’s giving of notice
of resignation or the Required Lenders’ removal of Agent, then the retiring or
removed Agent may, on behalf of the Lenders, and, so long as no Event of
Default shall have occurred and be continuing, with the Borrower’s consent
(such consent not to be unreasonably withheld, delayed or conditioned) appoint
a successor Agent, which shall be any Lender or any financial institution whose
senior debt obligations are rated not less than “A2” or its equivalent by Moody’s
or not less than “A” or its equivalent by S&P and which has a net worth of
not less than $500,000,000.00.  Upon the
acceptance of any appointment as Agent and, if applicable, Issuing Lender and
Swing Loan Lender, hereunder by a successor Agent and, if applicable, Issuing
Lender and Swing Loan Lender, such successor Agent and, if applicable, Issuing
Lender and Swing Loan Lender, shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring or removed Agent
and, if applicable, Issuing Lender and Swing Loan Lender, and the retiring or
removed Agent and, if applicable, Issuing Lender and Swing Loan Lender, shall
be discharged from its duties and obligations hereunder as Agent and, if
applicable, Issuing Lender and Swing Loan Lender.  After any retiring or removed Agent’s
resignation or removal, the provisions of this Agreement and the other Loan
Documents shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Agent, Issuing Lender
and Swing Loan Lender.  If the resigning or
removed Agent shall also resign as the Issuing Lender, such successor Agent
shall issue letters of credit in substitution for the Letters of Credit, if
any, outstanding at the time of such succession or shall make other
arrangements satisfactory to the current Issuing Lender, in either case, to
assume effectively the obligations of the current Agent with respect to such
Letters of Credit.  Upon any change in
the Agent under this Agreement, the resigning or removed Agent shall execute
such assignments of and amendments to the Loan Documents as may be necessary to
substitute the successor Agent for the resigning or removed Agent.


 


§14.10              Duties in the Case of Enforcement. 
In case one or more Events of Default have occurred and shall be
continuing, and whether or not acceleration of the Obligations shall have 


 


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occurred, the
Agent may and, if (a) so requested by the Required Lenders and (b) the Lenders
have provided to the Agent such additional indemnities and assurances in
accordance with their respective Commitment Percentages against expenses and
liabilities as the Agent may reasonably request, shall proceed to exercise all
or any legal and equitable and other rights or remedies as it may have; provided,
however, that unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem to be in the best interests of the Lenders.  Without limiting the generality of the
foregoing, if Agent reasonably determines payment is in the best interest of
all the Lenders, Agent may without the approval of the Lenders pay taxes and
insurance premiums and spend money for maintenance, repairs or other expenses
which may be necessary to be incurred, and Agent shall promptly thereafter
notify the Lenders of such action.  Each
Lender shall, within thirty (30) days of request therefor, pay to the Agent its
Commitment Percentage of the reasonable costs incurred by the Agent in taking
any such actions hereunder to the extent that such costs shall not be promptly
reimbursed to the Agent by the Borrower or the Guarantors or out of the
Collateral within such period.  The
Required Lenders may direct the Agent in writing as to the method and the
extent of any such exercise, the Lenders hereby agreeing to indemnify and hold
the Agent harmless in accordance with their respective Commitment Percentages from
all liabilities incurred in respect of all actions taken or omitted in
accordance with such directions, except to the extent that any of the same
shall be directly caused by the Agent’s willful misconduct or gross negligence as
finally determined by a court of competent jurisdiction after the expiration of
all applicable appeal periods, provided that the Agent need not comply
with any such direction to the extent that the Agent reasonably believes the
Agent’s compliance with such direction to be unlawful in any applicable
jurisdiction or commercially unreasonable under the UCC as enacted in any
applicable jurisdiction.  Prior to any foreclosure upon any Mortgaged
Property, the Required Lenders shall use good faith efforts to approve and
document a plan for the management and disposition of such Mortgaged Property.


 


§14.11              Bankruptcy.  In the event
a bankruptcy or other insolvency proceeding is commenced by or against the Borrower
or any Guarantor with respect to the Obligations, the Agent shall have the sole
and exclusive right to file and pursue a joint proof claim on behalf of all
Lenders.  Any votes with respect to such
claims or otherwise with respect to such proceedings shall be subject to the
vote of the Required Lenders or all of the Lenders as required by this
Agreement.  Each Lender irrevocably
waives its right to file or pursue a separate proof of claim in any such
proceedings unless Agent fails to file such claim within thirty (30) days after
receipt of written notice from the Lenders requesting that Agent file such
proof of claim.


 


§14.12              Request for Agent
Action.  Agent and the Lenders
acknowledge that in the ordinary course of business of the Borrower, (a) Borrower
and Guarantors will enter into leases or rental agreements covering Mortgaged
Properties that may require the execution of a Subordination, Attornment and
Non-Disturbance Agreement in favor of the tenant thereunder, (b) a Mortgaged
Property may be subject to a Taking, (c) Borrower or a Guarantor may desire to
enter into easements or other agreements affecting the Mortgaged Properties, or
take other actions or enter into other agreements in the ordinary course of
business (including, without limitation, Leases) which similarly require the
consent, approval or agreement of the Agent. 
In connection with the foregoing, the Lenders hereby expressly authorize
the Agent to (w) execute and deliver to the Borrower and the Guarantors
Subordination, Attornment and Non-Disturbance 


 


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Agreements with any tenant under a Lease upon such
terms as Agent in its good faith judgment determines are appropriate (Agent in
the exercise of its good faith judgment may agree to allow some or all of the
casualty, condemnation, restoration or other provisions of the applicable Lease
to control over the applicable provisions of the Loan Documents), (x) execute
releases of liens in connection with any Taking, (y) execute consents or
subordinations in form and substance satisfactory to Agent in connection with
any easements or agreements affecting the Mortgaged Property, or (z) execute
consents, approvals, or other agreements in form and substance satisfactory to
the Agent in connection with such other actions or agreements as may be
necessary in the ordinary course of Borrower’s business.


 


§14.13              Reliance by Agent. 
The Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed
by it to be genuine and to have been signed, sent or otherwise authenticated by
an Authorized Officer.  The Agent also
may rely upon any statement made to it orally or by telephone and believed by
it to have been made by the proper Person, and shall not incur any liability
for relying thereon.  In determining
compliance with any condition hereunder to the making of a Loan, that by its
terms must be fulfilled to the satisfaction of a Lender, the Agent may presume
that such condition is satisfactory to such Lender unless the Agent shall have
received notice to the contrary from such Lender prior to the making of such
Loan.  The Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and
other experts selected by it, and shall not be liable for any action taken or
not taken by it in accordance with the advice of any such counsel, accountants
or experts.


 


§14.14              Approvals.  If consent is
required for some action under this Agreement, or except as otherwise provided
herein an approval of the Lenders, the Majority Revolving Credit Lenders
or the Required Lenders is required or permitted under this Agreement, each Lender
agrees to give the Agent, within ten (10) Business Days of receipt of the
request for action together with all reasonably requested information related
thereto (or such lesser period of time required by the terms of the Loan
Documents), notice in writing of approval or disapproval (collectively “Directions”)
in respect of any action requested or proposed in writing pursuant to the terms
hereof.  To the extent that any Lender
does not approve any recommendation of Agent, such Lender shall in such notice
to Agent describe the actions that would be acceptable to such Lender.  If consent is required for the requested
action, any Lender’s failure to respond to a request for Directions within the
required time period shall be deemed to constitute a Direction to take such
requested action.  In the event that any
recommendation is not approved by the requisite number of Lenders and a
subsequent approval on the same subject matter is requested by Agent, then for
the purposes of this paragraph each Lender shall be required to respond to a
request for Directions within five (5) Business Days of receipt of such
request.  Agent and each Lender shall be
entitled to assume that any officer of the other Lenders delivering any notice,
consent, certificate or other writing is authorized to give such notice,
consent, certificate or other writing unless Agent and such other Lenders have
otherwise been notified in writing.


 


§14.15              Borrower Not Beneficiary.  Except
for the provisions of §14.9 relating to the appointment of a successor Agent,
the provisions of this §14 are solely for the benefit of the Agent and the
Lenders, may not be enforced by the Borrower or any Guarantor, and except for 


 


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the provisions of
§14.9, may be modified or waived without the approval or consent of the
Borrower.


 


§15.                         EXPENSES.


 


The Borrower agrees to pay (a) the reasonable costs of
producing and reproducing this Agreement, the other Loan Documents and the
other agreements and instruments mentioned herein, (b) any imposed taxes
(including any interest and penalties in respect thereto) payable by the Agent
or any of the Lenders (other than taxes based upon the Agent’s or any Lender’s
gross or net income, except that the Agent and the Lenders shall be entitled to
indemnification for any and all amounts paid by them in respect of taxes based
on income or other taxes assessed by any State in which Mortgaged Property or other Collateral is located, such
indemnification to be limited to taxes due solely on account of the granting of
Collateral under the Security Documents and to be net of any credit allowed to
the indemnified party from any other State on account of the payment or
incurrence of such tax by such indemnified party), including any recording,
mortgage, documentary or intangibles taxes in connection with the Mortgages and other Loan Documents, or other
taxes payable on or with respect to the transactions contemplated by this
Agreement, including any such taxes payable by the Agent or any of the Lenders
after the Closing Date (the Borrower hereby agreeing to indemnify the Agent and
each Lender with respect thereto), (c) title
insurance premiums, engineer’s fees, all environmental reviews and the
reasonable fees, expenses and disbursements of the counsel to the Agent and any
local counsel to the Agent incurred in connection with the preparation,
administration, or interpretation of the Loan Documents and other instruments
mentioned herein, and amendments, modifications, approvals, consents or waivers
hereto or hereunder, (d) the out-of-pocket fees, costs, expenses and
disbursements of Agent incurred in connection with the syndication and/or
participation (by KeyBank) of the Loans, (e) all other reasonable out of pocket
fees, expenses and disbursements of the Agent incurred by the Agent in
connection with the preparation or interpretation of the Loan Documents and
other instruments mentioned herein, the addition or substitution of additional CollateralMortgaged Properties or other Collateral, the review
of leases and Subordination, Attornment and Non-Disturbance Agreements, the
making of each advance hereunder, the issuance of Letters of Credit, and the
syndication of the Commitments pursuant to §18 (without duplication of those
items addressed in subparagraph (d), above), (f) all out-of-pocket expenses
(including attorneys’ fees and costs, and fees
and costs of appraisers, engineers, investment bankers or other experts
retained by the Agent) incurred by any Lender or the Agent in connection
with (i) the enforcement of or preservation of rights under any of the Loan
Documents against the Borrower or the Guarantors or the administration thereof
after the occurrence of a Default or Event of Default and (ii) any litigation,
proceeding or dispute whether arising hereunder or otherwise, in any way
related to the Agent’s or any of the Lenders’ relationship with the Borrower or
the Guarantors in respect of the Loan and the Loan Documents (provided that any
attorneys fees and costs pursuant to this clause (f)(ii) shall be limited to
those incurred by the Agent and one other counsel with respect to the Lenders
as a group), (g) all reasonable fees, expenses and disbursements of the Agent
incurred in connection with UCC searches, UCC filings, title rundowns, title searches
or mortgage recordings, (h) all reasonable out-of-pocket fees, expenses and
disbursements (including reasonable attorneys’ fees and costs) which may be
incurred by KeyBank in connection with the execution and delivery of this
Agreement and the other Loan Documents (without duplication of any of the items
listed above), and (i) all expenses relating to the use of Intralinks, SyndTrak
or any other similar system for the 


 


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dissemination and
sharing of documents and information in connection with the Loans.  The covenants of this §15 shall survive the
repayment of the Loans and the termination of the obligations of the Lenders
hereunder.


 


§16.                         INDEMNIFICATION.


 


The Borrower agrees to indemnify and hold harmless the
Agent, the Lenders and the Arranger and each director, officer, employee, agent
and Affiliate thereof and Person who controls the Agent or any Lender or the
Arranger against any and all claims, actions and suits, whether groundless or
otherwise, and from and against any and all liabilities, losses, damages and
expenses of every nature and character arising out of or relating to this
Agreement or any of the other Loan Documents or the transactions contemplated
hereby and thereby including, without limitation, (a) any and all claims for
brokerage, leasing, finders or similar fees which may be made relating to the Mortgaged Properties, other Real Estate or
the Loans, (b) any condition of the Mortgaged
Properties or other Real Estate, (c) any actual or proposed use by the
Borrower of the proceeds of any of the Loans or Letters of Credit, (d) any
actual or alleged infringement of any patent, copyright, trademark, service
mark or similar right of the Borrower, any Guarantor or any of their respective
Subsidiaries, (e) the Borrower and the Guarantors entering into or performing
this Agreement or any of the other Loan Documents, (f) any actual or alleged violation of any law, ordinance, code, order,
rule, regulation, approval, consent, permit or license relating to the
Mortgaged Properties, (g) with respect to the Borrower, the Guarantors and
their respective Subsidiaries and their respective properties and assets, the
violation of any Environmental Law, the Release or threatened Release of any
Hazardous Substances or any action, suit, proceeding or investigation brought
or threatened with respect to any Hazardous Substances (including, but not
limited to, claims with respect to wrongful death, personal injury, nuisance or
damage to property), and (gh) any use
of Intralinks, SyndTrak or any other system for the dissemination and sharing
of documents and information, in each case including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding; provided, however,
that the Borrower shall not be obligated under this §16 to indemnify any Person
for liabilities arising from such Person’s own gross negligence or willful
misconduct as determined by a court of competent jurisdiction after the
exhaustion of all applicable appeal periods. 
In litigation, or the preparation therefor, the Lenders and the Agent
shall be entitled to select a single law firm as their own counsel and, in addition
to the foregoing indemnity, the Borrower agrees to pay promptly the reasonable
fees and expenses of such counsel.  If,
and to the extent that the obligations of the Borrower under this §16 are
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment in satisfaction of such obligations which is
permissible under applicable law.  The
provisions of this §16 shall survive the repayment of the Loans and the
termination of the obligations of the Lenders hereunder.


 


§17.                         SURVIVAL OF COVENANTS, ETC.


 


All covenants, agreements, representations and
warranties made herein, in the Notes, in any of the other Loan Documents or in
any documents or other papers delivered by or on behalf of the Borrower or the
Guarantors or any of their respective Subsidiaries pursuant hereto or thereto
shall be deemed to have been relied upon by the Lenders and the Agent,
notwithstanding any investigation heretofore or hereafter made by any of them,
and shall survive the making by 


 


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the Lenders of any
of the Loans, as herein contemplated, and shall continue in full force and
effect so long as any amount due under this Agreement or the Notes or any of
the other Loan Documents remains outstanding or any Letters of Credit remain
outstanding or any Lender has any obligation to make any Loans or issue any
Letters of Credit.  The indemnification
obligations of the Borrower provided herein and in the other Loan Documents
shall survive the full repayment of amounts due and the termination of the
obligations of the Lenders hereunder and thereunder to the extent provided
herein and therein.  All statements
contained in any certificate delivered to any Lender or the Agent at any time
by or on behalf of the Borrower, any Guarantor or any of their respective
Subsidiaries pursuant hereto or in connection with the transactions
contemplated hereby shall constitute representations and warranties by such
Person hereunder.


 


§18.                         ASSIGNMENT AND PARTICIPATION.


 


§18.1                    Conditions to Assignment by Lenders. 
Except as provided herein, each Lender may assign to one or more banks
or other entities all or a portion of its interests, rights and obligations
under this Agreement (including all or a portion of its Commitment Percentage
and Commitment and the same portion of the Loans at the time owing to it and
the Notes held by it); provided that (a) the Agent, the Issuing Lender and,
so long as no Default or Event of Default exists hereunder, the Borrower shall
have each given its prior written consent to such assignment, which consent
shall not be unreasonably withheld or delayed (provided that such consent shall
not be required for any assignment to another Lender, to a lender or an
Affiliate of a Lender which controls, is controlled by or is under common control
with the assigning Lender or to a wholly-owned Subsidiary of such Lender), (b) each
such assignment shall be of a constant, and not a varying, percentage of all
the assigning Lender’s rights and obligations under this Agreement with respect
to the Revolving Credit Commitment in the event an interest in the
Revolving Credit Loans is assigned, or of a constant, and not a varying,
percentage of all the assigning Lender’s rights and obligations under this
Agreement with respect to the Term Loan Commitment in the event an interest in
the Term Loans is assigned, (c) the parties to such assignment shall
execute and deliver to the Agent, for recording in the Register (as hereinafter
defined) an Assignment and Acceptance Agreement in the form of Exhibit H
annexedK attached hereto, together with
any Notes subject to such assignment, (d) in no event shall any assignment be
to any Person controlling, controlled by or under common control with, or which
is not otherwise free from influence or control by the Borrower or any
Guarantor, (e) such assignee of a portion of the Revolving Credit Loans shall
have a net worth as of the date of such assignment of not less than
$100,000,000.00 (unless otherwise approved by Agent and, so long as no Default
or Event of Default exists hereunder, the Borrower), and (f) such assignee
shall acquire an interest in the Loans of not less than $5,000,000.00 and
integral multiples of $1,000,000.00 in excess thereof (or if less, the
remaining Loans of the assignor), unless waived by the Agent, and so long as no
Default or Event of Default exists hereunder, the Borrower.  Upon execution, delivery, acceptance and
recording of such Assignment and Acceptance Agreement, (i) the assignee
thereunder shall be a party hereto and all other Loan Documents executed by the
Lenders and, to the extent provided in such Assignment and Acceptance
Agreement, have the rights and obligations of a Lender hereunder, (ii) the
assigning Lender shall, upon payment to the Agent of the registration fee
referred to in §18.2, be released from its obligations under this Agreement
arising after the effective date of such assignment with respect to the
assigned portion of its interests, rights and obligations under this Agreement,
and (iii) the Agent may unilaterally 


 


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amend Schedule 1.1
to reflect such assignment.  In
connection with each assignment, the assignee shall represent and warrant to
the Agent, the assignor and each other Lender as to whether such assignee is
controlling, controlled by, under common control with or is not otherwise free
from influence or control by, the Borrower and/or any Guarantor.


 


§18.2                    Register.  The Agent
shall maintain on behalf of the Borrower a copy of each assignment delivered to
it and a register or similar list (the “Register”) for the recordation of the
names and addresses of the Lenders and the Commitment Percentages of and
principal amount of the Loans owing to the Lenders from time to time.  The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the Guarantors,
the Agent and the Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement.  The Register shall be available for
inspection by the Borrower and the Lenders at any reasonable time and from time
to time upon reasonable prior notice. 
Upon each such recordation, the assigning Lender agrees to pay to the
Agent a registration fee in the sum of $3,500.00.


 


§18.3                    New Notes.  Upon its
receipt of an Assignment and Acceptance Agreement executed by the parties to
such assignment, together with each Note subject to such assignment, the Agent
shall record the information contained therein in the Register.  Within five (5) Business Days after receipt
of notice of such assignment from Agent, the Borrower, at its own expense,
shall execute and deliver to the Agent, in exchange for each surrendered Note,
a new Note to the order of such assignee in an amount equal to the amount
assigned to such assignee pursuant to such Assignment and Acceptance Agreement
and, if the assigning Lender has retained some portion of its obligations
hereunder, a new Note to the order of the assigning Lender in an amount equal
to the amount retained by it hereunder. 
Such new Notes shall provide that they are replacements for the
surrendered Notes, shall be in an aggregate principal amount equal to the
aggregate principal amount of the surrendered Notes, shall be dated the
effective date of such Assignment and Acceptance Agreement and shall otherwise
be in substantially the form of the assigned Notes.  The surrendered Notes shall be canceled and
returned to the Borrower.


 


§18.4                    Participations.  Each Lender
may sell participations to one or more Lenders or other entities in all or a
portion of such Lender’s rights and obligations under this Agreement and the
other Loan Documents; provided that (a) any such sale or participation
shall not affect the rights and duties of the selling Lender hereunder, (b) such
participation shall not entitle such participant to any rights or privileges
under this Agreement or any Loan Documents, including without limitation,
rights granted to the Lenders under §4.8, §4.9, §4.10 and §13, (c) such
participation shall not entitle the participant to the right to approve
waivers, amendments or modifications, (d) such participant shall have no direct
rights against the Borrower, (e) such sale is effected in accordance with all
applicable laws, and (f) such participant shall not be a Person controlling,
controlled by or under common control with, or which is not otherwise free from
influence or control by the Borrower and/or any Guarantor; provided, however,
such Lender may agree with the participant that it will not, without the
consent of the participant, agree to (i) increase, or extend the term or extend
the time or waive any requirement for the reduction or termination of, such
Lender’s Commitment, (ii) extend the date fixed for the payment of principal of
or interest on the Loans or portions thereof owing to such Lender (other than pursuant
to an extension of the Revolving Credit Maturity Date pursuant to §2.122.11), (iii) 


 


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reduce the amount of any such payment of principal, (iv) reduce the
rate at which interest is payable thereon or (v) release any Guarantor or any
material Collateral (except as otherwise permitted under this Agreement).  Any Lender which sells a participation shall promptly notify the Agent of such
sale and the identity of the purchaser of such interest.


 


§18.5                    Pledge by Lender.  Any Lender may at any time pledge all or any
portion of its interest and rights under this Agreement (including all or any
portion of its Note) to any of the twelve Federal Reserve Banks organized under
§4 of the Federal Reserve Act, 12 U.S.C. §341 or to such other Person as the
Agent may approve to secure obligations of such lenders.  No such pledge or the enforcement thereof
shall release the pledgor Lender from its obligations hereunder or under any of
the other Loan Documents.


 


§18.6                    No Assignment by Borrower.  The Borrower shall not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of each of the Lenders.


 


§18.7                    Disclosure.  The Borrower agrees to promptly cooperate
with any Lender in connection with any proposed assignment or participation of
all or any portion of its Commitment. 
The Borrower agrees that in addition to disclosures made in accordance
with standard banking practices any Lender may disclose information obtained by
such Lender pursuant to this Agreement to assignees or participants and
potential assignees or participants hereunder. 
Each Lender agrees for itself that it shall use reasonable efforts in
accordance with its customary procedures to hold confidential all information
obtained from the Borrower or any Guarantor that has not been identified in
writing as public by any of them, and shall use reasonable efforts in
accordance with its customary procedures to not disclose such information to
any other Person, it being understood and agreed that, notwithstanding the
foregoing, a Lender may make (a) disclosures to its participants (provided such
Persons are advised of the provisions of this §18.7), (b) disclosures to its
directors, officers, employees, Affiliates, accountants, appraisers, legal
counsel and other professional advisors of such Lender (provided that such
Persons who are not employees of such Lender are advised of the provision of
this §18.7), (c) disclosures customarily provided or reasonably required by any
potential or actual bona fide assignee, transferee or participant or their
respective directors, officers, employees, Affiliates, accountants, appraisers,
legal counsel and other professional advisors in connection with a potential or
actual assignment or transfer by such Lender of any Loans or any participations
therein (provided such Persons are advised of the provisions of this §18.7), (d)
disclosures to bank regulatory authorities or self-regulatory bodies with
jurisdiction over such Lender, or (e) disclosures required or requested by any
other governmental authorityGovernmental
Authority or representative thereof or pursuant to legal process; provided
that, unless specifically prohibited by applicable law or court order, each
Lender shall notify the Borrower of any request by any governmental
authorityGovernmental Authority or
representative thereof prior to disclosure (other than any such request in
connection with any examination of such Lender by such government authorityGovernmental Authority) for disclosure of any
such non-public information prior to disclosure of such information.  In addition, each Lender may make disclosure
of such information to any contractual counterparty in swap agreements or such
contractual counterparty’s professional advisors (so long as such contractual
counterparty or professional advisors agree to be bound by the provisions of
this §18.7).  Non-public information
shall not include any information which is or subsequently becomes publicly
available other than as a 


 


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result of a disclosure of such
information by a Lender, or prior to the delivery to such Lender is within the
possession of such Lender if such information is not known by such Lender to be
subject to another confidentiality agreement with or other obligations of
secrecy to the Borrower or the Guarantors, or is disclosed with the prior
approval of the Borrower.  Nothing herein
shall prohibit the disclosure of non-public information to the extent necessary
to enforce the Loan Documents.


 


§18.8                    Mandatory Assignment.  In the event the Borrower requests that
certain amendments, modifications or waivers be made to this Agreement or any
of the other Loan Documents which request is approved by Agent but is not
approved by one or more of the Lenders (any such non-consenting Lender shall
hereafter be referred to as the “Non-Consenting Lender”), then, within thirty
(30) Business Days after the Borrower’s receipt of notice of such disapproval
by such Non-Consenting Lender, the Borrower shall have the right as to such
Non-Consenting Lender, to be exercised by delivery of written notice delivered
to the Agent and the Non-Consenting Lender within thirty (30) Business Days of
receipt of such notice, to elect to cause the Non-Consenting Lender to transfer
its Commitment.  The Agent shall promptly
notify the remaining Lenders that each of such Lenders shall have the right,
but not the obligation, to acquire a portion of the Commitment, pro rata based
upon their relevant Commitment Percentages, of the Non-Consenting Lender (or if
any of such Lenders does not elect to purchase its pro rata share, then to such
remaining Lenders in such proportion as approved by the Agent).  In the event that the Lenders do not elect to
acquire all of the Non-Consenting Lender’s Commitment, then the Agent shall
endeavor to find a new Lender or Lenders to acquire such remaining
Commitment.  Upon any such purchase of
the Commitment of the Non-Consenting Lender, the Non-Consenting Lender’s interests
in the Obligations and its rights hereunder and under the Loan Documents shall
terminate at the date of purchase, and the Non-Consenting Lender shall promptly
execute and deliver any and all documents reasonably requested by Agent to
surrender and transfer such interest, including, without limitation, an
Assignment and Acceptance Agreement in the form attached hereto as Exhibit HK and such Non-Consenting Lender’s original
Note.  The purchase price for the
Non-Consenting Lender’s Commitment shall equal any and all amounts outstanding
and owed by Borrower to the Non-Consenting Lender, including principal and all
accrued and unpaid interest or fees, plus any applicable amounts payable
pursuant to §4.7 which would be owed to such Non-Consenting Lender if the Loans
were to be repaid in full on the date of such purchase of the Non-Consenting Lender’s
Commitment (provided that the Borrower may pay to such Non-Consenting Lender any
interest, fees or other amounts (other than principal) owing to such
Non-Consenting Lender).


 


§18.9                    Amendments to Loan Documents.  Upon any such assignment, the Borrower and
the Guarantors shall, upon the request of the Agent, enter into such documents
as may be reasonably required by the Agent to modify the Loan Documents to
reflect such assignment.


 


§18.10              Titled Agents.  The Titled Agents shall not have any
additional rights or obligations under the Loan Documents, except for those
rights, if any, as a Lender.


 


§19.                         NOTICES.


 


Each notice, demand,
election or request provided for or permitted to be given pursuant to this
Agreement (hereinafter in this §19 referred to as “Notice”), but specifically
excluding to 


 


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the maximum extent permitted by law any notices of the institution or
commencement of foreclosure proceedings, must be in writing and shall be deemed
to have been properly given
or served by personal delivery or by sending same by overnight courier or by
depositing same in the United States Mail, postpaid and registered or certified,
return receipt requested, or as expressly permitted herein, by telegraph,
telecopy, telefax or telex, and addressed as follows:


 


If to the Agent or KeyBank:


 


KeyBank National Association

800 Superior

Cleveland, Ohio  44114-1306

Attn:  Real Estate Capital Services


 


With a copy to:


 


KeyBank National Association

127 Public Square

Cleveland, Ohio  44114-13061200 Abernathy Road, N.E., Suite 1550

Atlanta, Georgia  30328

Attn:  Mr. Kevin Murray

Telecopy No.:  (216) 689-5819770) 510-2168


 


and


 


McKenna Long & Aldridge
LLP

Suite 5300

303 Peachtree Street, N.E.

Atlanta, Georgia  30308

Attn:  William F. Timmons, Esq.

Telecopy No.:  (404) 527-4198


 


If to the Borrower:


 


c/o Behringer Harvard
Operating Partnership I LP 

15601 Dallas Parkway

Suite 600

Addison, TX 75001-6206

Attn:  Gerald J. Reihsen, III, Esq.

Telecopy No.:  (469) 655-1610


 


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With a copy to:



Luce, Forward, Hamilton & Scripps 

600 W. Broadway

Suite 2600

San Diego, CA 92101

Attn:  Darryl Steinhause

Telecopy No.:  (619) 645-5340


 


to any other Lender which is a party hereto, at the address for such
Lender set forth on its signature page hereto, and to any Lender which may
hereafter become a party to this Agreement, at such address as may be
designated by such Lender.  Each Notice
shall be effective upon being personally delivered or upon being sent by
overnight courier or upon being deposited in the United States Mail as
aforesaid, or if transmitted by telegraph, telecopy, telefax or telex is
permitted, upon being sent and confirmation of receipt.  The time period in which a response to such
Notice must be given or any action taken with respect thereto (if any),
however, shall commence to run from the date of receipt if personally delivered
or sent by overnight courier, or if so deposited in the United States Mail, the
earlier of three (3) Business Days following such deposit or the date of
receipt as disclosed on the return receipt. 
Rejection or other refusal to accept or the inability to deliver because
of changed address for which no notice was given shall be deemed to be receipt
of the Notice sent.  By giving at least
fifteen (15) days prior Notice thereof, the Borrower, a Lender or Agent shall
have the right from time to time and at any time during the term of this
Agreement to change their respective addresses and each shall have the right to
specify as its address any other address within the United States of America.


 


§20.                         RELATIONSHIP.


 


Neither the Agent nor any
Lender has any fiduciary relationship with or fiduciary duty to the Borrower,
any Guarantor or their respective Subsidiaries arising out of or in connection
with this Agreement or the other Loan Documents or the transactions
contemplated hereunder and thereunder, and the relationship between each Lender
and Agent, and the Borrower is solely that of a lender and borrower, and
nothing contained herein or in any of the other Loan Documents shall in any
manner be construed as making the parties hereto partners, joint venturers or
any other relationship other than lender and borrower.


 


§21.                         GOVERNING LAW; CONSENT TO
JURISDICTION AND SERVICE.


 


THIS AGREEMENT AND EACH OF THE
OTHER LOAN DOCUMENTS, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN OR
THEREIN, SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. 
THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT
OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN ANY COURT OF COMPETENT
JURISDICTION IN THE STATE OF NEW YORK (INCLUDING ANY FEDERAL COURT SITTING
THEREIN).  THE BORROWER FURTHER ACCEPTS,
GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS
AND ANY RELATED 


 


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APPELLATE COURT AND IRREVOCABLY (i)
SUBJECT TO AVAILABLE RIGHTS TO APPEAL, AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY WITH RESPECT TO THIS AGREEMENT AND ANY OF THE OTHER LOAN
DOCUMENTS AND (ii) WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE
VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH A COURT IS AN
INCONVENIENT FORUM.  THE BORROWER FURTHER
AGREES THAT SERVICE OF PROCESS IN ANY SUCH SUIT MAY BE MADE UPON THE BORROWER
BY REGISTERED OR CERTIFIED MAIL AT THE ADDRESS SPECIFIED IN SECTION 19 HEREOF.  IN ADDITION TO THE COURTS OF THE STATE OF NEW
YORK OR ANY FEDERAL COURT SITTING THEREIN, THE AGENT OR ANY LENDER MAY BRING
ACTION(S) FOR ENFORCEMENT ON A NONEXCLUSIVE BASIS WHERE ANY COLLATERAL OR
ASSETS OF THE BORROWER EXISTS AND THE BORROWER CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURTS AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING
MADE UPON THE BORROWER BY REGISTERED OR CERTIFIED MAIL AT THE ADDRESS SPECIFIED
IN SECTION 19 HEREOF.


 


§22.                         HEADINGS.


 


The captions in this
Agreement are for convenience of reference only and shall not define or limit
the provisions hereof.


 


§23.                         COUNTERPARTS.


 


This Agreement and any
amendment hereof may be executed in several counterparts and by each party on a
separate counterpart, each of which when so executed and delivered shall be an
original, and all of which together shall constitute one instrument.  In proving this Agreement it shall not be
necessary to produce or account for more than one such counterpart signed by
the party against whom enforcement is sought.


 


§24.                         ENTIRE AGREEMENT, ETC.


 


This Agreement and the Loan
Documents is intended by the parties as the final, complete and exclusive
statement of the transactions evidenced by this Agreement and the Loan
Documents.  All prior or contemporaneous
promises, agreements and understandings, whether oral or written, are deemed to
be superseded by this Agreement and the Loan Documents, and no party is relying
on any promise, agreement or understanding not set forth in this Agreement and
the Loan Documents. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except as provided in §27.


 


§25.                         WAIVER OF JURY TRIAL AND
CERTAIN DAMAGE CLAIMS.


 


EACH OF THE BORROWER, THE AGENT
AND THE LENDERS HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY
ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT,
ANY NOTE OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER OR THE 


 


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PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS.  THE BORROWER HEREBY WAIVES
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES AND TO THE EXTENT PERMITTED BY APPLICABLE
LAW, PUNITIVE OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES.  THE BORROWER (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY LENDER OR THE AGENT HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER OR THE AGENT WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES
THAT THE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS,
THE WAIVERS AND CERTIFICATIONS CONTAINED IN THIS §25.  THE BORROWER ACKNOWLEDGES THAT IT HAS HAD AN
OPPORTUNITY TO REVIEW THIS §25 WITH LEGAL COUNSEL AND THAT THE BORROWER AGREES
TO THE FOREGOING AS ITS FREE, KNOWING AND VOLUNTARY ACT.


 


§26.                         DEALINGS WITH THE BORROWER.


 


The Agent, the Lenders and
their affiliates may accept deposits from, extend credit to, invest in, act as
trustee under indentures of, serve as financial advisor of, and generally
engage in any kind of banking, trust or other business with the Borrower, the
Guarantors and their respective Subsidiaries or any of their Affiliates
regardless of the capacity of the Agent or the Lender hereunder.  The Lenders acknowledge that, pursuant to
such activities, KeyBank or its Affiliates may receive information regarding
such Persons (including information that may be subject to confidentiality
obligations in favor of such Person) and acknowledge that the Agent shall be
under no obligation to provide such information to them.


 


§27.                         CONSENTS, AMENDMENTS,
WAIVERS, ETC.


 


Except as otherwise expressly
provided in this Agreement, any consent or approval required or permitted by
this Agreement may be given, and any term of this Agreement or of any other
instrument related hereto or mentioned herein may be amended, and the
performance or observance by the Borrower or the Guarantors of any terms of
this Agreement or such other instrument or the continuance of any Default or
Event of Default may be waived (either generally or in a particular instance
and either retroactively or prospectively) with, but only with, the written
consent of the Required Lenders. 
Notwithstanding the foregoing, none of the following may occur without
the written consent of each Lender:  (a) a
reduction in the rate of interest on the Notes (other than a reduction or
waiver of default interest); (b) an increase in the amount of the Commitments
of the Lenders (except as provided in §2.112.10 and §18.1); (c) a forgiveness, reduction or waiver of the
principal of any unpaid Loan or any interest thereon or fee payable under the
Loan Documents; (d) a change in the amount of any fee payable to a Lender
hereunder; (e) the postponement of any date fixed for any payment of principal
of or interest on the Loan; (f) an extension of the Revolving Credit Maturity
Date (except as provided in §2.12) or the Term Loan Maturity Date (except as
provided in §2.132.11); (g) a change in
the manner of distribution of any payments to the Lenders or the Agent; (h) the
release of the Borrower, any Guarantor or any Collateral except as otherwise
provided in this Agreement; (i) 


 


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an amendment of the definition of Majority Revolving
Credit Lenders, Required Lenders or of any requirement for consent by all
of the Lenders; (j) any modification to require a Lender to fund a pro rata
share of a request for an advance of the Loan made by the Borrower other than
based on its Commitment Percentage; (k) an amendment to this §27; or (l) an
amendment of any provision of this Agreement or the Loan Documents which requires
the approval of all of the Lenders, the Majority Revolving Credit Lenders
or the Required Lenders to require a lesser number of Lenders to approve such
action.  The provisions of §14 may not be
amended without the written consent of the Agent.  There shall be no amendment, modification or
waiver of any provision in the Loan Documents with respect to Swing Loans
without the consent of the Swing Loan Lender, nor any amendment, modification
or waiver of any provision in the Loan Documents with respect to Letters of
Credit without the consent of the Issuing Lender.  The Borrower agrees to enter into such
modifications or amendments of this Agreement or the other Loan Documents as
reasonably may be requested by KeyBank in connection with the syndication of the
Loan, provided that no such amendment or modification materially affects
or increases any of the obligations of the Borrower hereunder.  No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon.  No course of dealing or delay or omission on
the part of the Agent or any Lender in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto.  No notice to or demand upon the Borrower shall
entitle the Borrower to other or further notice or demand in similar or other
circumstances.


 


§28.                         SEVERABILITY.


 


The provisions of this
Agreement are severable, and if any one clause or provision hereof shall be
held invalid or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall affect only such clause or provision, or
part thereof, in such jurisdiction, and shall not in any manner affect such
clause or provision in any other jurisdiction, or any other clause or provision
of this Agreement in any jurisdiction.


 


§29.                         TIME OF THE ESSENCE.


 


Time is of the essence with
respect to each and every covenant, agreement and obligation of the Borrower
under this Agreement and the other Loan Documents.


 


§30.                         NO UNWRITTEN AGREEMENTS.


 


THE LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.  ANY ADDITIONAL
TERMS OF THE AGREEMENT BETWEEN THE PARTIES ARE SET FORTH BELOW.


 


§31.                         REPLACEMENT NOTES.


 


Upon receipt of evidence
reasonably satisfactory to the Borrower of the loss, theft, destruction or
mutilation of any Note, and in the case of any such loss, theft or destruction,
upon delivery of an indemnity agreement reasonably satisfactory to the Borrower
or, in the case of any 


 


129

















 


such mutilation, upon surrender and
cancellation of the applicable Note, the Borrower will execute and deliver,
in lieu thereof, a replacement Note, identical in form and substance to the
applicable Note and dated as of the date of the applicable Note and upon such
execution and delivery all references in the Loan Documents to such Note shall
be deemed to refer to such replacement Note.


 


§32.                         NO THIRD PARTIES BENEFITED.


 


This Agreement and the other
Loan Documents are made and entered into for the sole protection and legal
benefit of the Borrower, the Guarantors, the Lenders, the Agent and their
permitted successors and assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action
or claim in connection with, this Agreement or any of the other Loan
Documents.  All conditions to the
performance of the obligations of the Agent and the Lenders under this
Agreement, including the obligation to make Loans and issue Letters of Credit,
are imposed solely and exclusively for the benefit of the Agent and the Lenders
and no other Person shall have standing to require satisfaction of such
conditions in accordance with their terms or be entitled to assume that the
Agent and the Lenders will refuse to make Loans or issue Letters of Credit in
the absence of strict compliance with any or all thereof and no other Person
shall, under any circumstances, be deemed to be a beneficiary of such
conditions, any and all of which may be freely waived in whole or in part by
the Agent and the Lenders at any time if in their sole discretion they deem it
desirable to do so.  In particular, the
Agent and the Lenders make no representations and assume no obligations as to
third parties concerning the quality of the construction by the Borrower or any
of its Subsidiaries of any development or the absence therefrom of defects.


 


§33.                         PATRIOT ACT.


 


Each Lender and the Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower that,
pursuant to the requirements of the Patriot Act, it is required to obtain,
verify and record information that identifies the Borrower, which information
includes names and addresses and other information that will allow such Lender
or the Agent, as applicable, to identify the Borrower in accordance with the
Patriot Act.


 


§34.                         CONSOLIDATION, AMENDMENT AND RESTATEMENT OF ASSIGNED
NOTE.


 


By
execution of this Agreement, the Assigned Note is being consolidated, amended,
restated and bifurcated into the Revolving Credit Notes delivered as of the First
Amendment Date having an aggregate principal face amount of $193,000,000.00.


 


[remainder of page intentionally left blank]


 


130

















 


IN WITNESS WHEREOF, each of the
undersigned have caused this Agreement to be executed by its duly authorized
representatives as of the date first set forth above.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  BEHRINGER HARVARD OPERATING
  PARTNERSHIP I LP, a Texas limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  BHR, Inc., a Delaware corporation, its General
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (SEAL)

  



 


131
















 


	
   

  	
  AGENT
  AND LENDERS:

  
	
   

  	
   

  
	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION, individually and as Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


132

















 


	
   

  	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


Address
for Notices:


 


Wachovia Bank, National
Association


301 S. College Street


16th Floor, NC0172


Charlotte, NC 28288


	
  Attention:

  	
  Cindy
  Bean

  
	
  Telephone:

  	
  (704)
  383-7534

  
	
  Facsimile:

  	
  (704) 715-0065

  



 


133

















 


	
   

  	
  AAREAL
  BANK AGCAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


Address
for Notices:


 


Aareal Bank AGCapital Corporation


Paulinenstrasse
15


65189
Wiesbaden


Germany


250 Park Avenue, Suite 820


New York, New York 
10177


	
  Attention:

  	
  Markus
  ObenlandChristian Berry

  
	
  Telephone:

  	
  +49-(0)611-348-3594(212) 508-4083

  
	
  Facsimile:

  	
  +49-(0)611-348-2757(917) 322-0285

  



 


134

















 


	
   

  	
  WESTDEUTSCHE
  IMMOBILIENBANK AG

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
						



 


 


Address
for Notices:


 


1211 Avenue of the Americas


24th Floor


New York, NY 10036


	
  Attention:

  	
  David
  McGannon

  
	
  Telephone:

  	
  (212)
  588-0065

  
	
  Facsimile:

  	
  (212) 588-0992

  



 


135

















 


	
   

  	
  RBS
  CITIZENS, N.A. d/b/a CHARTER ONE

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


Address
for Notices:


 


RBS Citizens, N.A. d/b/a
Charter One


1215 Superior Avenue


6th Floor


Cleveland, OH 44114


	
  Attention:

  	
  Don
  Woods

  
	
  Telephone:

  	
  (216)
  277-0199

  
	
  Facsimile:

  	
  (216) 277-4607

  



 


136

















 


	
   

  	
  FIFTH
  THIRD BANK, a Michigan banking corporation

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


Address
for Notices:


 


Fifth Third Bank


MD C82111


3821 Ruckriegel Parkway


Louisville, KY 40299


	
  Attention:

  	
  Tammy
  Leachman

  
	
  Telephone:

  	
  (502)
  297-6199

  
	
  Facsimile:

  	
  (502) 267-7747

  



 


137

















 


	
   

  	
  NATIONAL
  CITY BANK

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


Address
for Notices:


 


National City Bank


2000 Auburn Drive, Suite 400


Beachwood, OH 44122


	
  Attention:

  	
  Sean
  Apicella

  
	
  Telephone:

  	
  (216)
  488-3687

  
	
  Facsimile:

  	
  (216) 488-3160

  



 


138

















 


	
   

  	
  ALLIED
  IRISH BANKS, P.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
						



 


 


Address
for Notices:


 


Allied Irish Banks, P.L.C.


405 Park Avenue


New York, NY 10022


	
  Attention:

  	
  Doug
  Marron / Aaron Bawol

  
	
  Telephone:

  	
  (212)
  515-6763 / (212) 339-8038

  
	
  Facsimile:

  	
  (212) 339-8325

  



 


139

















 


	
   

  	
  PNC
  BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


Address
for Notices:


 


PNC Bank, National
Association


500 1st Avenue


Pittsburgh, PA 15219


	
  Attention:

  	
  Leigh
  Ann Geyer

  
	
  Telephone:

  	
  (412)
  762-5600

  
	
  Facsimile:

  	
  (412) 762-6500

  



 


140

















 


	
   

  	
  CITIBANK,
  N.A.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


Address
for Notices:


 


Citibank, N.A.


8401 N. Central Expressway


Suite 500


Dallas, Texas  75225


	
  Attention:

  	
  Andrea
  L. MurryAshanti Mitchell

  
	
  Telephone:

  	
  (972)
  419-34533374

  
	
  Facsimile:

  	
  (972) 419-3308

  



 


141
















 


	
   

  	
  BANK
  OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Address
for Notices:


 


Bank of America, N.A.


901 Main Street, 20th Floor


TX1-492-20-06


Dallas, TX 75202


	
  Attention:

  	
  Brett
  Bell

  
	
  Telephone:

  	
  (214)
  209-2773

  
	
  Facsimile:

  	
  (214)
  209-1832

  



 


142

















 


	
   

  	
  TEXAS
  CAPITAL BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Address
for Notices:


 


Texas Capital Bank, National
Association


500 Throckmorton Street


Suite 300


Fort Worth, TX 76102


	
  Attention:

  	
  Jeffrey
  A. Moten

  
	
  Telephone:

  	
  (817)
  852-4005

  
	
  Facsimile:

  	
  (817)
  336-0553

  



 


143

















 


EXHIBIT A


 


FORM OF REVOLVING CREDIT
NOTE


 




	
  $                                                                                                                                                                                                          , 2007

  
	
   

  	
   

  	
   

  
	
  $                                                                                                                                                                                                          , 2009

  






 


FOR
VALUE RECEIVED, the undersigned (“Maker”), hereby promises to pay to
                                
                                    
(“Payee”), or order, in accordance with the terms of that certain Credit
Agreement, dated as of December 11, 2007, as amended by that certain
First Amendment to Credit Agreement and Other Loan Documents dated as of
June 9, 2009, as from time to time in effect, by and among Behringer
Harvard Operating Partnership I LP, KeyBank National Association, for itself
and as Agent, and such other Lenders as may be from time to time named therein
(the “Credit Agreement”), to the extent not sooner paid, on or before the Revolving
Credit Maturity Date, the principal sum of
                                  
($                    ),
or such amount as may be advanced by the Payee under the Credit Agreement as a
Revolving Credit Loan with daily interest from the date thereof, computed as
provided in the Credit Agreement, on the principal amount hereof from time to
time unpaid, at a rate per annum on each portion of the principal amount which
shall at all times be equal to the rate of interest applicable to such portion
in accordance with the Credit Agreement, and with interest on overdue principal
and, to the extent permitted by applicable law, on overdue installments of
interest and late charges at the rates provided in the Credit Agreement.  Interest shall be payable on the dates
specified in the Credit Agreement, except that all accrued interest shall be
paid at the stated or accelerated maturity hereof or upon the prepayment in
full hereof.  Capitalized terms used
herein and not otherwise defined herein shall have the meanings set forth in
the Credit Agreement.


 


Payments
hereunder shall be made to the Agent for the Payee at 127 Public Square,
Cleveland, Ohio 44114-1306, or at such other address as Agent may designate
from time to time.


 


This
Note is one of one or more Revolving Credit Notes evidencing borrowings under
and is entitled to the benefits and subject to the provisions of the Credit
Agreement.  The principal of this Note
may be due and payable in whole or in part prior to the Revolving Credit Maturity
Date and is subject to mandatory prepayment in the amounts and under the
circumstances set forth in the Credit Agreement, and may be prepaid in whole or
from time to time in part, all as set forth in the Credit Agreement.


 


Notwithstanding
anything in this Note to the contrary, all agreements between the undersigned
Maker and the Lenders and the Agent, whether now existing or hereafter arising
and whether written or oral, are hereby limited so that in no contingency,
whether by reason of acceleration of the maturity of any of the Obligations or
otherwise, shall the interest contracted for, charged or received by the
Lenders exceed the maximum amount permissible under applicable law.  If, from any circumstance whatsoever,
interest would otherwise be payable to the Lenders in excess of the maximum
lawful amount, the interest payable to the Lenders shall be reduced to the
maximum amount permitted under applicable law; and if from any circumstance the
Lenders shall ever receive anything of value deemed interest by applicable law
in excess of the maximum lawful amount, an amount equal to any excessive
interest shall be 


 


A-1

















 


applied
to the reduction of the principal balance of the Obligations of the undersigned
Maker and to the payment of interest or, if such excessive interest exceeds the
unpaid balance of principal of the Obligations of the undersigned Maker, such
excess shall be refunded to the undersigned Maker.  All interest paid or agreed to be paid to the
Lenders shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full period until payment in full
of the principal of the Obligations of the undersigned Maker (including the
period of any renewal or extension thereof) so that the interest thereon for such
full period shall not exceed the maximum amount permitted by applicable
law.  This paragraph shall control all
agreements between the undersigned Maker and the Lenders and the Agent.


 


In
case an Event of Default shall occur, the entire principal amount of this Note
may become or be declared due and payable in the manner and with the effect
provided in said Credit Agreement.


 


This
Note shall, pursuant to New York General Obligations Law Section 5-1401,
be governed by the laws of the State of New York.


 


The
undersigned Maker and all guarantors and endorsers hereby waive presentment,
demand, notice, protest, notice of intention to accelerate the indebtedness
evidenced hereby, notice of acceleration of the indebtedness evidenced hereby
and all other demands and notices in connection with the delivery, acceptance,
performance and enforcement of this Note, except as specifically otherwise
provided in the Credit Agreement, and assent to extensions of time of payment
or forbearance or other indulgence without notice.


 


[Language
to be used on notes issued in connection with First Amendment to Credit
Agreement and Other Loan Documents and on certain notes issued pursuant to
Section 2.10 of the Credit Agreement]  This Note is issued pursuant to [that certain First Amendment to Credit Agreement and Other Loan
Documents dated as of the date hereof] [Section 2.10 of the Credit
Agreement] in replacement of that certain Note dated
                            
in the principal face amount of $                                      
made by Borrower to the order of Lender (the “Original Note”).  This Note is made in substitution for, and
not in repayment of, the Original Note.


 


IN
WITNESS WHEREOF, the undersigned has by its duly authorized officer executed
this Note on the day and year first above written.


 


	
   

  	
  BEHRINGER
  HARVARD OPERATING

  PARTNERSHIP I LP, a Texas limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  BHR, Inc.,
  a Delaware corporation, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
  (SEAL)

  



 


A-2

















 


EXHIBIT B


 


FORM OF SWING LOAN NOTE


 


	
  $50,000,000.00                                                                                                                                                                                   
  , 2007

  
	
   

  	
   

  	
   

  
	
  $25,000,000.00                                                                                                                                                                                   
  , 2009

  



 


FOR
VALUE RECEIVED, the undersigned (“Maker”), hereby promises to pay to
                                
                                    
(“Payee”), or order, in accordance with the terms of that certain Credit Agreement,
dated as of December 11, 2007, as amended by that certain First
Amendment to Credit Agreement and Other Loan Documents dated as of June 9,
2009, as from time to time in effect, by and among Behringer Harvard
Operating Partnership I LP, KeyBank National Association, for itself and as
Agent, and such other Lenders as may be from time to time named therein (the
“Credit Agreement”), to the extent not sooner paid, on or before the Revolving
Credit Maturity Date, the principal sum of FiftyTwenty-Five
Million and No/100 Dollars ($50,000,000.0025,000,000.00), or such
amount as may be advanced by the Payee under the Credit Agreement as a Swing
Loan with daily interest from the date thereof, computed as provided in the
Credit Agreement, on the principal amount hereof from time to time unpaid, at a
rate per annum on each portion of the principal amount which shall at all times
be equal to the rate of interest applicable to such portion in accordance with
the Credit Agreement, and with interest on overdue principal and, to the extent
permitted by applicable law, on overdue installments of interest and late
charges at the rates provided in the Credit Agreement.  Interest shall be payable on the dates
specified in the Credit Agreement, except that all accrued interest shall be
paid at the stated or accelerated maturity hereof or upon the prepayment in full
hereof.  Capitalized terms used herein
and not otherwise defined herein shall have the meanings set forth in the
Credit Agreement.


 


Payments
hereunder shall be made to the Agent for the Payee at 127 Public Square,
Cleveland, Ohio 44114-1306, or at such other address as Agent may designate
from time to time.


 


This
Note is one of one or more Swing Loan Notes evidencing borrowings under and is
entitled to the benefits and subject to the provisions of the Credit
Agreement.  The principal of this Note
may be due and payable in whole or in part prior to the Revolving Credit Maturity
Date and is subject to mandatory prepayment in the amounts and under the
circumstances set forth in the Credit Agreement, and may be prepaid in whole or
from time to time in part, all as set forth in the Credit Agreement.


 


Notwithstanding
anything in this Note to the contrary, all agreements between the undersigned
Maker and the Lenders and the Agent, whether now existing or hereafter arising
and whether written or oral, are hereby limited so that in no contingency,
whether by reason of acceleration of the maturity of any of the Obligations or
otherwise, shall the interest contracted for, charged or received by the
Lenders exceed the maximum amount permissible under applicable law.  If, from any circumstance whatsoever,
interest would otherwise be payable to the Lenders in excess of the maximum
lawful amount, the interest payable to the Lenders shall be reduced to the
maximum amount permitted under applicable law; and if from any circumstance the
Lenders shall ever receive anything of value deemed interest by applicable law 


 


B-1

















 


in
excess of the maximum lawful amount, an amount equal to any excessive interest
shall be applied to the reduction of the principal balance of the Obligations
of the undersigned Maker and to the payment of interest or, if such excessive
interest exceeds the unpaid balance of principal of the Obligations of the
undersigned Maker, such excess shall be refunded to the undersigned Maker.  All interest paid or agreed to be paid to the
Lenders shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full period until payment in full
of the principal of the Obligations of the undersigned Maker (including the
period of any renewal or extension thereof) so that the interest thereon for
such full period shall not exceed the maximum amount permitted by applicable
law.  This paragraph shall control all
agreements between the undersigned Maker and the Lenders and the Agent.


 


In
case an Event of Default shall occur, the entire principal amount of this Note
may become or be declared due and payable in the manner and with the effect
provided in said Credit Agreement.


 


This
Note shall, pursuant to New York General Obligations Law Section 5-1401,
be governed by the laws of the State of New York.


 


The
undersigned Maker and all guarantors and endorsers hereby waive presentment,
demand, notice, protest, notice of intention to accelerate the indebtedness
evidenced hereby, notice of acceleration of the indebtedness evidenced hereby
and all other demands and notices in connection with the delivery, acceptance,
performance and enforcement of this Note, except as specifically otherwise provided
in the Credit Agreement, and assent to extensions of time of payment or
forbearance or other indulgence without notice.


 


[Language
to be used on notes issued in connection with First Amendment to Credit
Agreement and Other Loan Documents and on certain notes issued pursuant to
Section 2.10 of the Credit Agreement]  This Note is issued pursuant to [that certain First Amendment to Credit Agreement and Other Loan
Documents dated as of the date hereof] [Section 2.10 of the Credit
Agreement] in replacement of that certain Note dated
                            
in the principal face amount of $                                      
made by Borrower to the order of Lender (the “Original Note”).  This Note is made in substitution for, and
not in repayment of, the Original Note.


 


IN
WITNESS WHEREOF, the undersigned has by its duly authorized officer executed
this Note on the day and year first above written.


 


	
   

  	
  BEHRINGER
  HARVARD OPERATING

  PARTNERSHIP I LP, a Texas limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  BHR, Inc.,
  a Delaware corporation, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
  (SEAL)

  



 


B-2

















 


EXHIBIT C


 


FORM OF TERM LOAN NOTEASSIGNMENT
OF LEASES AND RENTS


 


	
  $                                                                                                                                                                                                          , 2007

  



 


FOR VALUE RECEIVED, the undersigned (“Maker”), hereby promises to pay
to
                                
                                    
(“Payee”), or order, in accordance with the terms of that certain Credit
Agreement, dated as of December 11, 2007, as from time to time in effect,
by and among Behringer Harvard Operating Partnership I LP, KeyBank National
Association, for itself and as Agent, and such other Lenders as may be from
time to time named therein (the “Credit Agreement”), to the extent not sooner
paid, on or before the Term Loan Maturity Date, the principal sum of
                                  
($                    ),
or such amount as may be advanced by the Payee under the Credit Agreement as a
Term Loan with daily interest from the date thereof, computed as provided in
the Credit Agreement, on the principal amount hereof from time to time unpaid,
at a rate per annum on each portion of the principal amount which shall at all
times be equal to the rate of interest applicable to such portion in accordance
with the Credit Agreement, and with interest on overdue principal and, to the
extent permitted by applicable law, on overdue installments of interest and
late charges at the rates provided in the Credit Agreement.  Interest shall be payable on the dates
specified in the Credit Agreement, except that all accrued interest shall be paid
at the stated or accelerated maturity hereof or upon the prepayment in full
hereof.  Capitalized terms used herein
and not otherwise defined herein shall have the meanings set forth in the
Credit Agreement.


 


Payments hereunder shall be made to the Agent for the Payee at 127
Public Square, Cleveland, Ohio 44114-1306, or at such other address as Agent
may designate from time to time.


 


This Note is one of one or more Term Loan Notes evidencing borrowings
under and is entitled to the benefits and subject to the provisions of the
Credit Agreement.  The principal of this
Note may be due and payable in whole or in part prior to the Term Loan Maturity
Date and is subject to mandatory prepayment in the amounts and under the
circumstances set forth in the Credit Agreement, and may be prepaid in whole or
from time to time in part, all as set forth in the Credit Agreement.


 


Notwithstanding anything in this Note to the contrary, all agreements
between the undersigned Maker and the Lenders and the Agent, whether now existing
or hereafter arising and whether written or oral, are hereby limited so that in
no contingency, whether by reason of acceleration of the maturity of any of the
Obligations or otherwise, shall the interest contracted for, charged or
received by the Lenders exceed the maximum amount permissible under applicable
law.  If, from any circumstance
whatsoever, interest would otherwise be payable to the Lenders in excess of the
maximum lawful amount, the interest payable to the Lenders shall be reduced to
the maximum amount permitted under applicable law; and if from any circumstance
the Lenders shall ever receive anything of value deemed interest by applicable
law in excess of the maximum lawful amount, an amount equal to any excessive
interest shall be applied to the reduction of the principal balance of the
Obligations of the undersigned Maker and to the payment of interest or, if such
excessive interest exceeds the unpaid balance of principal of the Obligations
of the undersigned Maker, such excess shall be refunded to the undersigned 


 


C-4

















 


Maker.  All interest paid or agreed to be paid to the
Lenders shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full period until payment in full
of the principal of the Obligations of the undersigned Maker (including the
period of any renewal or extension thereof) so that the interest thereon for
such full period shall not exceed the maximum amount permitted by applicable
law.  This paragraph shall control all
agreements between the undersigned Maker and the Lenders and the Agent.


 


In case an Event of Default shall occur, the entire principal amount of
this Note may become or be declared due and payable in the manner and with the
effect provided in said Credit Agreement.


 


This Note shall, pursuant to New York General Obligations Law Section 5-1401,
be governed by the laws of the State of New York.


 


The undersigned Maker and all guarantors and endorsers hereby waive
presentment, demand, notice, protest, notice of intention to accelerate the
indebtedness evidenced hereby, notice of acceleration of the indebtedness
evidenced hereby and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, except as
specifically otherwise provided in the Credit Agreement, and assent to
extensions of time of payment or forbearance or other indulgence without
notice.


 


IN WITNESS WHEREOF, the undersigned has by its duly authorized officer
executed this Note on the day and year first above written.


 


	
   

  	
  BEHRINGER
  HARVARD OPERATING

  PARTNERSHIP I LP, a Texas limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  BHR, Inc.,
  a Delaware corporation, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


AFTER

RECORDING, RETURN TO:

William F. Timmons, Esq.

McKenna Long & Aldridge LLP

303 Peachtree Street N.E., Suite 5300

Atlanta, Georgia 30308


 


C-5
















 


NOTICE OF
CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR
STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT
IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR
DRIVER’S LICENSE NUMBER.


 


ASSIGNMENT OF LEASES AND RENTS


 


THIS ASSIGNMENT OF LEASES AND RENTS (this “Assignment”) is made as of
                          ,
by                                                                     ,
a
                                                
(“Assignor”), having its principal place of business at 15601 Dallas Parkway, Suite 600, Addison, Texas 75001, to KEYBANK
NATIONAL ASSOCIATION, a national banking association (“KeyBank”), as Agent for
itself and each other lender (collectively, the “Lenders”) which is or may
hereafter become a party to that certain Credit Agreement, dated as of December 11,
2007, by and among Behringer Harvard Operating Partnership, L.P., a Texas
limited partnership (“Borrower”), KeyBank, as Agent and the Lenders, as amended
by that certain First Amendment to Credit Agreement and Other Loan Documents
dated of even date herewith (as the same may be further varied, amended,
restated, renewed, consolidated, extended or otherwise supplemented from time
to time, the “Credit Agreement”) (KeyBank, in its capacity as Agent, is
hereinafter referred to as “Agent”).


 


ASSIGNOR, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and AS ADDITIONAL
SECURITY, does hereby presently, absolutely, irrevocably and unconditionally
GRANT, SELL, CONVEY, ASSIGN, TRANSFER, SET OVER AND DELIVER to Agent, for the
ratable benefit of the Lenders, as additional security, the entire lessor’s,
landlord’s or licensor’s interest in and to all leases, subleases (to the full
extent of Assignor’s right, title and interest therein), tenant contracts,
rental agreements, occupancy agreements or agreements of a similar nature,
whether written or oral, now or hereafter affecting the Property (as defined in
the Deed of Trust, Security Agreement and Assignment of Leases and Rents dated
of even date herewith executed by Assignor to Agent, for itself and the other
Lenders (the “Instrument”)), or any part thereof, which Property includes that
certain lot or piece of land, more particularly described in Exhibit A
attached hereto, together with all lease, security, damage or other deposits
and all guarantees of the foregoing and letters of credit or other security
relating to the performance or obligations of any tenants, lessees or licensees
thereunder (all of the leases and other agreements and guarantees described
above together with all present and future leases and present and future
agreements and any amendment, modification, extension or renewal of the same
are hereinafter collectively referred to as the “Leases”);


 


TOGETHER WITH all rents, income, issues, revenues
and profits arising from the Leases and renewals thereof and together with all
rents, income, issues and profits from the use, enjoyment and occupancy of the
Property (including, but not limited to, minimum rents, additional rents,
percentage rents, deficiency rents, security deposits and liquidated damages
following default under any Leases, all proceeds payable under any policy of
insurance, all of Assignor’s rights to recover monetary amounts from any lessee
under the Leases in bankruptcy including, without limitation, rights of
recovery for use and occupancy and damage claims arising out of defaults under
the Leases, including rejection of a Lease, together with any sums of money
that may now or at any time hereafter be or become due and payable to Assignor
by


 


C-6

















 


virtue of any and all lease termination payments,
royalties, overriding royalties, bonuses, delay rentals and any other amount of
any kind or character arising under any and all present and all future oil, gas
and mining Leases covering the Property or any part thereof, and all rents
under and as defined in the Leases) (all of the rights described above
hereinafter collectively referred to as the “Rents”).


 


THIS ASSIGNMENT is made for the purposes of
additionally securing the following described indebtedness (collectively the
“Secured Obligations”):


 


(a)           The debt evidenced by those
certain notes made by Borrower, which have been issued pursuant to the Credit
Agreement and which are due and payable in full on or before December 11,
2010, unless extended as provided in the Credit Agreement, each as originally
executed, or if varied, extended, supplemented, consolidated, amended,
replaced, renewed, modified or restated from time to time as so varied,
extended, supplemented, consolidated, amended, replaced, renewed, modified or
restated (collectively, the “Note”);


 


(b)           The payment, performance and
discharge of each and every obligation, covenant and agreement of Assignor
contained herein, and of Assignor in the Credit Agreement and in the other Loan
Documents;


 


(c)           Any and all additional advances
made by Agent or any Lender to protect or preserve the Property or the lien and
security title hereof in and to the Property, or for taxes, assessments or
insurance premiums as hereinafter provided (whether or not Assignor is the
owner of the Property at the time of such advances);


 


(d)           Any and all other indebtedness,
obligations and liabilities now or hereafter owing or to be performed by
Borrower to any Lender or Agent pursuant to the terms of the Credit Agreement
or the other Loan Documents, whether now existing or hereafter arising or
incurred, however evidenced or incurred, whether express or implied, direct or
indirect, absolute or contingent, due or to become due, including, without
limitation, all principal, interest, fees, expenses, yield maintenance amounts
and indemnification amounts, and all renewals, modifications, consolidations,
replacements and extensions thereof; and


 


(e)           The Enforcement Costs (as defined
in the Instrument).


 


Assignor warrants to Agent that as of the date
hereof (and to Assignor’s best knowledge, with respect to subleases) (a) except
for subleases, Assignor is the sole owner of the entire lessor’s interest in
the Leases and the Rents; (b) the Leases have not been altered, modified
or amended in any manner whatsoever except as disclosed to Agent and, to the
best knowledge of Assignor, are valid, enforceable and in full force and
effect; (c) neither the Leases nor the Rents reserved in the Leases have
been assigned or otherwise pledged or hypothecated; (d) none of the Rents
have been collected for more than one (1) month in advance; (e) Assignor
has full power and authority to execute and deliver this Assignment and the
execution and delivery of this Assignment has been duly authorized and does not
conflict with or constitute a default under any law, judicial order or other
agreement affecting Assignor or the Property; and (f) to Assignor’s
knowledge, there exist no offsets or defenses to the payment of any portion of
the Rents.


 


C-7

















 


Assignor covenants with Agent that Assignor (a) shall
observe and perform all the obligations imposed upon the lessor under the
Leases and, subject to Section 7.13 of the Credit Agreement, shall not do
or permit to be done anything to impair the value of the Leases as security for
the Secured Obligations; (b) shall use commercially reasonable efforts to
enforce the performance and observance of the obligations of the other parties
to the Leases to be performed thereunder consistent with the provisions of the
Credit Agreement; (c) will appear in and defend any action arising out of,
or in any manner connected with, any of the Leases, or the obligations or
liabilities of Assignor as the landlord, lessor or licensor thereof, or any
tenant, lessee, licensee or any guarantor thereunder; (d) shall not
collect any Rents more than one (1) month in advance; (e) shall not
execute any other assignment of lessor’s interest in the Leases or the Rents; (f) shall
execute and deliver at the request of Agent all such further assurances,
confirmations or assignments in connection with the Property as Agent shall
from time to time reasonably require; and (g) shall deliver to Agent
executed copies of all Leases required to be delivered to Agent pursuant to the
terms of the Credit Agreement.


 


THIS ASSIGNMENT is made on the following terms,
covenants and conditions:


 


1.             Present Assignment.  Assignor does hereby absolutely, presently
and unconditionally assign to Agent, Assignor’s right, title and interest in
and to any and all Leases and Rents, it being intended by Assignor that this
Assignment constitute a present assignment and not an agreement to assign.  Assignor agrees to execute and deliver to
Agent such additional instruments, in form and substance satisfactory to Agent,
as may hereinafter be requested by Agent to further evidence and confirm said
assignment.  Such assignment to Agent
shall not be construed to bind Agent to the performance of any of the
covenants, conditions, or provisions contained in any of the Leases or
otherwise to impose any obligation upon Agent. 
Agent is hereby granted and assigned by Assignor the right to enter the
Property for the purpose of enforcing its interest in the Leases and the Rents,
this Assignment constituting a present and unconditional assignment of the
Leases and Rents.  Assignor shall
authorize and direct, and does hereby authorize and direct, each and every
present and future tenant under the Leases to pay all Rents directly to Agent
upon receipt of written demand from Agent. 
It is the intent of Assignor and Agent hereunder that the Rents hereby
absolutely assigned are no longer, during the term of this Assignment, property
of Assignor or property of any estate of Assignor as defined by 11 U.S.C. §
541, and shall not constitute collateral, cash or otherwise, of Assignor.  Notwithstanding the provisions of this
Paragraph 1, so long as no Event of Default has occurred and is continuing,
Assignor shall have the right to act as lessor under the Leases to the extent
not prohibited by the Credit Agreement.


 


2.             License.  Although this Assignment constitutes a
present assignment of all Rents, so long as there shall exist no Event of
Default under the Instrument or the Credit Agreement, Assignor shall have a
license (revocable upon the occurrence of an Event of Default) to collect and
receive the Rents.  Upon the occurrence
and during the continuance of any Event of Default, the license granted in this
Paragraph 2 shall automatically, without further act by Agent, cease and
terminate, and thereafter, any Rents received by Assignor shall be held in
trust for the benefit of, and shall be immediately remitted by Assignor to,
Agent.


 


3.             Remedies of Agent.  If an Event of Default under the Instrument
or the Credit Agreement shall have occurred and be continuing, Agent may
collect and receive all the Rents,


 


C-8

















 


including those past due as well as those accruing
thereafter, and, Assignor hereby authorizes Agent or Agent’s agents to collect
the Rents and hereby directs such tenants, lessees and licensees of the Property
to pay the Rents to Agent or Agent’s agents. 
Assignor agrees that each and every tenant, lessee and licensee of the
Property may pay, and hereby irrevocably authorizes and directs each and every
tenant, lessee and licensee of the Property to pay, the Rents to Agent or
Agent’s agents on Agent’s written demand therefor (which demand may be made by
Agent at any time after the occurrence and during the continuance of an Event
of Default) without any obligation on the part of said tenant, lessee or licensee
to inquire as to the existence of an Event of Default and notwithstanding any
notice or claim of Assignor to the contrary, and Assignor agrees that Assignor
shall have no right or claim against said tenant, lessee or licensee for or by
reason of any Rents paid to Agent following receipt of such written
demand.  Anything in this Paragraph 3 to
the contrary notwithstanding, Agent shall not be obligated to discharge or
perform the duties of a landlord or lessor to any tenant or other occupant or
incur any liability as a result of the exercise by Agent of its rights under
this Assignment, and Agent shall be liable to account only for the rents,
income, issues, profits and revenues actually received by Agent.  In connection with any action taken by the
Agent pursuant to this Paragraph 3, the Agent shall not be liable for any loss
sustained by Assignor resulting from any act or omission of the Agent,
including a loss arising from the ordinary negligence of the Agent, unless such
loss is caused by its own gross negligence or willful misconduct as finally
determined by a court of competent jurisdiction after the expiration of all
applicable appeal periods, nor shall the Agent be obligated to perform or
discharge any obligation, duty or liability of Assignor.  Assignor hereby assents to, ratifies and
confirms any and all actions of the Agent with respect to the Property taken
under this Paragraph 3.


 


4.             No Liability of Agent.  After the occurrence and during the
continuance of an Event of Default, the Agent is fully authorized to receive
and receipt for said revenues and proceeds; to endorse and cash any and all
checks and drafts payable to the order of Assignor or the Agent for the account
of Assignor received from or in connection with said revenues or proceeds and apply
the proceeds thereof to the payment of the Secured Obligations, when received,
regardless of the maturity of any of the Loans,  or
any installment thereof; and to execute transfer and division orders in the
name of Assignor, or otherwise, with warranties binding Assignor.  The Agent shall not be liable for any delay,
neglect, or failure to effect collection of any proceeds or to take any other
action in connection therewith or hereunder; but shall have the right, at its
election, in the name of Assignor or otherwise, to prosecute and defend any and
all actions or legal proceedings deemed advisable by the Agent in order to
collect such funds and to protect the interests of the Agent and/or Assignor,
with all costs, expenses and attorney’s fees incurred in connection therewith
being paid by Assignor.


 


5.             Other Remedies and
Non-Waiver.  No right, power or remedy
conferred upon or reserved to Agent by this Assignment is intended to be
exclusive of any other right, power or remedy, but each and every such right,
power and remedy shall be cumulative and concurrent and shall be in addition to
any other right, power and remedy given hereunder or now or hereafter existing
at law or in equity or by statute.  No
delay or omission of Agent or of any Lenders to exercise any right, power or
remedy accruing upon any default shall exhaust or impair any such right, power
or remedy or shall be construed to be a waiver of any such default, or
acquiescence therein; and every right, power and remedy given by this
Assignment to Agent may be exercised from time to time and as often as may be
deemed expedient by Agent. No consent


 


C-9

















 


or waiver, expressed or implied, by Agent to or of any
breach or default by Assignor in the performance of the obligations thereof
hereunder shall be deemed or construed to be a consent or waiver to or of any
other breach or default in the performance of the same or any other obligations
of Assignor hereunder.  Failure on the
part of Agent to complain of any act or failure to act or to declare an Event
of Default under the Instrument, the Credit Agreement, the Guaranty or the
other Loan Documents, irrespective of how long such failure continues, shall
not constitute a waiver by Agent of its rights hereunder or impair any rights,
powers or remedies of Agent consequent on any breach or default by
Assignor.  Nothing contained in this
Assignment and no act done or omitted by Agent pursuant to the power and rights
granted to Agent hereunder shall be deemed to be a waiver by Agent of its
rights and remedies under the other Loan Documents and this Assignment is made
and accepted without prejudice to any of the rights and remedies possessed by
Agent under the terms thereof.  The right
of the Agent to collect the Rents and to enforce any other security thereof
held by it may be exercised by Agent either prior to simultaneously with or
subsequent to any action taken by it hereunder.


 


6.             Conflict with Credit Agreement
Provisions.  Assignor hereby acknowledges
and agrees that, in the event of any conflict between the terms hereof and the
terms of the Credit Agreement, the terms of the Credit Agreement shall control.


 


7.             No Mortgagee in Possession.  Nothing herein contained shall be construed
as constituting Agent a “mortgagee in possession” in the absence of the taking
of actual possession of the Property by Agent. 
In the exercise of the powers herein granted to Agent, no liability
shall be asserted or enforced against Agent, all such liability being expressly
waived and released by Assignor.


 


8.             No Oral Change.  This Assignment may not be modified, amended,
waived, extended, changed, discharged or terminated orally, or by any act or
failure to act on the part of Assignor or Agent, but only by an agreement in
writing signed by the party against whom the enforcement of any modification,
amendment, waiver, extension, change, discharge or termination is sought.


 


9.             Certain Definitions.  Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, words used in
this Assignment may be used interchangeable in singular or plural form and the
word “Assignor” shall mean “each Assignor and any subsequent owner or owners of
the Property or any part thereof or any fee interest therein,” the word “Agent”
shall mean “Agent and any subsequent beneficiary of the Instrument,” the word
“Loans” shall have the meaning set forth in the Credit Agreement, the word
“person” shall include an individual, corporation, partnership, trust,
unincorporated association, government, governmental authority, and any other
entity, the words “Property” shall include any portion of the Property and any
interest therein; whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice
versa.  All other capitalized terms used,
but not defined herein, shall have the meaning set forth in the Credit
Agreement.


 


C-10

















 


10.           Inapplicable Provisions.  If any term, covenant or condition of this
Assignment is held to be invalid, illegal or unenforceable in any respect, this
Assignment shall be construed without such provision.


 


11.           Counterparts.  This Assignment may be executed in any number
of counterparts each of which shall be deemed to be an original but all of
which when taken together shall constitute one agreement.


 


12.           GOVERNING LAW;
JURISDICTION.  THIS ASSIGNMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS CHOSEN PURSUANT TO SECTION 3.04
OF THE INSTRUMENT.  ASSIGNOR HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT OF COMPETENT JURISDICTION
LOCATED IN THE JURISDICTION CHOSEN PURSUANT TO SECTION 3.04 OF THE INSTRUMENT
IN CONNECTION WITH ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS
ASSIGNMENT.


 


13.           Successors and Assigns.  Assignor may not assign its rights under this
Assignment.  Assignor hereby acknowledges
and agrees that Agent may assign this Assignment without Assignor’s
consent.  Subject to the foregoing, this
Assignment shall be binding upon, and shall inure to the benefit of, Assignor
and the Agent and their respective successors and assigns.


 


14.           Termination of Assignment.  Upon payment in full of the Secured
Obligations and the delivery and recording of a satisfaction, release or
discharge of the Instrument duly executed by Agent, this Assignment shall
become and be void and of no effect as to the Leases and Rents from the Land no
longer securing the Secured Obligations.


 


15.           INDEMNIFICATION.  ASSIGNOR SHALL AND DOES HEREBY AGREE TO
INDEMNIFY AND TO HOLD AGENT OR THE LENDERS HARMLESS FOR, FROM AND AGAINST ANY
AND ALL COSTS, EXPENSES, CLAIMS, DEMANDS, LIABILITY, LOSS OR DAMAGE (INCLUDING
ALL COSTS, EXPENSES, AND ATTORNEYS’ FEES INCURRED IN THE DEFENSE THEREOF)
ASSERTED AGAINST, IMPOSED ON OR INCURRED BY AGENT OR THE LENDERS IN CONNECTION
WITH OR AS A RESULT OF THIS ASSIGNMENT OR THE EXERCISE OF ANY RIGHTS OR
REMEDIES UNDER THIS ASSIGNMENT OR UNDER ANY OF THE LEASES OR BY REASON OF ANY
ALLEGED OBLIGATIONS OR UNDERTAKINGS OF AGENT OR THE LENDERS TO PERFORM OR
DISCHARGE ANY OF THE TERMS, COVENANTS OR AGREEMENTS CONTAINED IN ANY OF THE
LEASES; PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL BE CONSTRUED TO OBLIGATE
ASSIGNOR TO INDEMNIFY AND HOLD AGENT OR THE LENDERS HARMLESS FOR, FROM AND
AGAINST ANY AND ALL COSTS, EXPENSES, CLAIMS, DEMANDS, LIABILITY, LOSS OR DAMAGE
ASSERTED AGAINST, IMPOSED ON OR INCURRED BY AGENT OR THE LENDERS BY REASON OF
SUCH PERSON’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE IF A JUDGMENT IS ENTERED
AGAINST AGENT OR A LENDER BY A COURT OF COMPETENT JURISDICTION AFTER THE
EXPIRATION OF ALL APPLICABLE APPEAL PERIODS. 
SHOULD AGENT OR A LENDER INCUR ANY


 


C-11

















 


SUCH COSTS, EXPENSES, LIABILITIES, LOSS OR DAMAGE, OR IN THE DEFENSE OF
ANY SUCH CLAIMS OR DEMANDS, FOR WHICH IT IS TO BE INDEMNIFIED BY ASSIGNOR AS
AFORESAID, THE AMOUNT THEREOF SHALL BE ADDED TO THE SECURED OBLIGATIONS, SHALL
BEAR INTEREST AT THE INTEREST RATE FOR OVERDUE AMOUNTS STATED IN THE CREDIT
AGREEMENT FROM THE DATE INCURRED UNTIL PAID (BUT IN NO EVENT SHALL THE INTEREST
PAYABLE EXCEED THE MAXIMUM AMOUNT ALLOWED BY LAW), SHALL BE SECURED BY THIS
ASSIGNMENT, THE INSTRUMENT AND THE OTHER LOAN DOCUMENTS, AND SHALL BE PAYABLE
IMMEDIATELY UPON DEMAND.


 


16.           Notices.  Except for any statutory notice required
prior to exercise of the remedies provided herein, which must be delivered in
accordance with such statutes, all notices, requests and other communications
hereunder shall be made and delivered in the manner provided in the Instrument.


 


17.           Rejection of Leases.  In the event a tenant under any Lease should
be the subject of any proceeding under the Federal Bankruptcy Act (Title 11
U.S.C.) or any other federal, state, or local statute which provides for the
possible termination or rejection of the Leases assigned hereby, the Assignor
covenants and agrees that if any Lease that covers 25,000 square feet or more
of the Property (a “Major Lease”) is so rejected, no settlement for damages
shall be made without prior written consent of the Agent, and any check in
payment of damages in respect of such Major Lease for rejection of any Major
Lease will be made payable both to the Assignor and Agent.  The Assignor hereby assigns any such payment
to the Agent and further covenants and agrees that upon the request of the
Agent, it will duly endorse to the order of the Agent any check, the proceeds
of which will be applied to whatever portion of the indebtedness secured hereby
and by the Security Documents which the Agent may elect.


 


18.           No Merger of Estates.  So long as any of the indebtedness secured
hereby and by the Loan Documents shall remain unpaid, unless the Agent shall
otherwise consent in writing, the fee title and the leasehold estate on the
Property as hereinbefore described shall not merge, but shall always be kept
separate and distinct, notwithstanding the union of said estate either in the
Assignor or in any tenant or in a third party by purchase or otherwise.


 


19.           Agent’s Rights of Assignment;
Rights of Assignees.  Agent may assign to
any subsequent holder of the Note or the Instrument, or to any person acquiring
title to the Property, all of Agent’s right, title and interest in any of the
Leases and rents, issues, income and profits from the Property.  No such assignee shall have any liability for
any obligation which accrued under any of the Leases prior to the assignment to
such assignee nor shall any such assignee have any obligation to account to
Assignor for any rental payments which accrued prior to such assignment unless
actually received by such assignee. 
After Assignor’s right, title and interest in the Property has been
foreclosed or otherwise terminated, no assignee of Assignor’s interest in the
Leases shall be liable to account to Assignor for any rents, issues, income or
profits thereafter accruing.


 


20.           Modifications, Etc.  Assignor hereby consents and agrees that
Agent may at any time and from time to time, without notice to or further
consent from Assignor, either with or without consideration, surrender any
property or other security of any kind or nature whatsoever


 


C-12

















 


held by it or by any person, firm or corporation on its
behalf or for its account, securing the Secured Obligations; substitute for any
collateral so held by it, other collateral of like kind; agree to modification
of the terms of the Credit Agreement or any of the other Security Documents;
extend or renew the Note, the Credit Agreement or any of the other Security
Documents for any period; grant releases, compromises and indulgences with
respect to the Notes, the Credit Agreement, the Guaranty or any of the other
Security Documents for any period; grant releases, compromises and indulgences
with respect to the Note, the Credit Agreement, the Guaranty or any of the
other Security Documents to any persons or entities now or hereafter liable
thereunder or hereunder; release any guarantor or endorser of the Note, the Instrument,
the Credit Agreement, the Guaranty, or any other Security Documents; or take or
fail to take any action of any type whatsoever; and no such action which Agent
shall take or fail to take in connection with the Security Documents, or any of
them, or any security for the payment of the Secured Obligations or for the
performance of any obligations or undertakings of Assignor, nor any course of
dealing with Assignor or any other person, shall release Assignor’s obligations
hereunder, affect this Assignment in any way or afford Assignor any recourse
against Agent.  The provisions of this
Assignment shall extend and be applicable to all renewals, amendments,
extensions, consolidations and modifications of the Security Documents and the
Leases, and any and all references herein to the Security Documents or the
Leases shall be deemed to include any such renewals, amendments, extensions,
consolidations or modifications thereof.


 


THIS ASSIGNMENT shall inure to the benefit of
Agent and any subsequent beneficiary of the Instrument and shall be binding
upon Assignor, and Assignor’s heirs, executors, administrators, successors and
assigns and any subsequent owner of the Property.


 


 


	
   

  	
  (SEAL)

  



 


 


[Signatures
Begin on the Following Page]


 


C-13

















 


Assignor has executed this instrument as of the
day and year first above written.


 


	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  
	
   

  	
                                                                    ,
  a

  
	
   

  	
                                                           

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President - Corporate

  
	
   

  	
   

  	
  Development & Legal

  



 


C-14

















 


ACKNOWLEDGMENT


 


THE STATE OF                                                                          §


                                                                                                      §


COUNTY OF                                                                               §


 


This instrument was acknowledged before me on
                          ,
20    , by Gerald J. Reihsen, III, as Executive Vice
President - Corporate              Development &
Legal of                                                                             ,
a
                                                          ,
on behalf of said
                                                      .


 


(SEAL)


Notary Public in and for


the State of                    


 


My
Commission Expires:                                                            Print
Name of Notary:


 


D-15
















 


EXHIBIT A TO FORM OF
ASSIGNMENT OF LEASES AND RENTS



















 


EXHIBIT D


 


FORM OF JOINDER AGREEMENT


 


THIS
JOINDER AGREEMENT (“Joinder Agreement”) is executed as of
                                    ,
20    , by
                                                              ,
a
                                                    
(“Joining Party”), and delivered to KeyBank National Association, as Agent,
pursuant to §5.25.5 of the Credit
Agreement dated as of December 11, 2007,
as amended by that certain First Amendment to Credit Agreement and Other Loan
Documents dated as of June 9, 2009 and as from time to time in effect
(the “Credit Agreement”), by and among Behringer Harvard Operating Partnership
I LP (the “Borrower”), KeyBank National Association, for itself and as Agent,
and the other Lenders from time to time party thereto.  Terms used but not defined in this Joinder
Agreement shall have the meanings defined for those terms in the Credit
Agreement.


 


RECITALS


 


A.            Joining Party is required, pursuant
to §5.25.5  of the Credit Agreement, to become an
additional Subsidiary Guarantor under the Guaranty, the Indemnity Agreement and
the Contribution Agreement.


 


B.            Joining Party expects to realize
direct and indirect benefits as a result of the availability to the Borrower of
the credit facilities under the Credit Agreement.


 


NOW,
THEREFORE, Joining Party agrees as follows:


 


AGREEMENT


 


21.           1. Joinder.  By this Joinder Agreement, Joining Party
hereby becomes a “Subsidiary Guarantor” and a “Guarantor” under the Credit Agreement,
the Guaranty, the Indemnity Agreement, and the other Loan Documents with
respect to all the Obligations of the Borrower now or hereafter incurred under
the Credit Agreement and the other Loan Documents, and a “Subsidiary Guarantor”
under the Contribution Agreement. 
Joining Party agrees that Joining Party is and shall be bound by, and
hereby assumes, all representations, warranties, covenants, terms, conditions,
duties and waivers applicable to a “Subsidiary Guarantor” and a “Guarantor”
under the Credit Agreement, the Guaranty, the Indemnity Agreement, the other
Loan Documents and the Contribution Agreement.


 


22.           2. Representations and
Warranties of Joining Party.  Joining
Party represents and warrants to Agent that, as of the Effective Date (as defined
below), except as disclosed in writing by Joining Party to Agent on or prior to
the date hereof and approved by the Agent in writing (which disclosures shall
be deemed to amend the Schedules and other disclosures delivered as
contemplated in the Credit Agreement), the representations and warranties
contained in the Credit Agreement and the other Loan Documents applicable to a “Guarantor”
or “Subsidiary Guarantor” are true and correct in all material respects as
applied to Joining Party as a Subsidiary Guarantor and a Guarantor on and as of
the Effective Date as though made on that date. 
As of the Effective Date, all covenants and agreements in the Loan
Documents and the Contribution Agreement of the Subsidiary Guarantors apply to
Joining Party and no Default or Event of 


 

















 


Default
shall exist or might exist upon the Effective Date in the event that Joining
Party becomes a Subsidiary Guarantor.


 


23.           3. Joint and Several.  Joining Party hereby agrees that, as of the
Effective Date, the Guaranty, the Contribution Agreement and the Indemnity
Agreement heretofore delivered to the Agent and the Lenders shall be a joint
and several obligation of Joining Party to the same extent as if executed and
delivered by Joining Party, and upon request by Agent, will promptly become a
party to the Guaranty, the Contribution Agreement and the Indemnity Agreement
to confirm such obligation.


 


24.           4. Further Assurances.  Joining Party agrees to execute and deliver
such other instruments and documents and take such other action, as the Agent
may reasonably request, in connection with the transactions contemplated by
this Joinder Agreement.


 


25.           5. GOVERNING LAW.  THIS JOINDER
AGREEMENT SHALL BE DEEMED TO BE A CONTRACTUAL OBLIGATION UNDER, AND SHALL,
PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED
BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.


 


26.           6. Counterparts.  This Joinder Agreement may be executed in any
number of counterparts which shall together constitute but one and the same
agreement.


 


27.           7. The effective date (the “Effective
Date”) of this Joinder Agreement is
                                  ,
20    .


 


IN
WITNESS WHEREOF, Joining Party has executed this Joinder Agreement under seal
as of the day and year first above written.


 


	
   

  	
  “JOINING
  PARTY”

  
	
   

  	
   

  
	
   

  	
   

  	
  ,
  a

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [SEAL]

  
					



 


ACKNOWLEDGED:


 


KEYBANK
NATIONAL ASSOCIATION, as Agent


 


By:


 


Its:


 

















 


[Printed Name and Title]


 

















 


EXHIBIT E


 


FORM OF
MORTGAGE


 


[See
Attached]


 

















 


                                                                              ,

a
                                                                              ,

as Mortgagor


 


to


 


KEYBANK
NATIONAL ASSOCIATION,


a national banking
association, as Agent,

as Mortgagee


 


MORTGAGE AND SECURITY AGREEMENT


 


Dated:     As
of                       


 


Location:                                           


 


DOCUMENT PREPARED BY AND
WHEN RECORDED, RETURN TO:



McKenna Long & Aldridge LLP

Suite 5300

303 Peachtree Street, N.E.

Atlanta, Georgia  30308

Attention:  William F. Timmons, Esq.


 


E-2

















 


THIS  MORTGAGE AND
SECURITY AGREEMENT (this “Instrument”) is made and entered into as
of this          day of
                      ,
            , by
and among                                                               , a
                                            (“Grantor”),
having a mailing address of c/o Behringer Harvard Operating Partnership I LP,
15601 Dallas Parkway, Suite 600, Addison, Texas 75001, and KEYBANK NATIONAL ASSOCIATION, a national
banking association (“KeyBank”), having a mailing address of 127 Public Square,
Cleveland, Ohio 44114-1306, Attn: Real Estate Capital Services, with a copy to
KeyBank National Association, 1200 Abernathy Road, N.E., Suite 1550,
Atlanta, Georgia  30328, Attn: Kevin
Murray, as Agent for itself and each other lender (collectively, the “Lenders”)
which is or may hereafter become a party to that certain Credit Agreement, dated as of December 11, 2007, by
and among Behringer Harvard Operating Partnership I LP, a Texas limited
partnership (“Borrower”), KeyBank, as Agent and the Lenders, as amended by that
certain First Amendment to Credit Agreement and Other Loan Documents dated as
of even date herewith (as the same may be further varied, amended, restated,
renewed, consolidated, extended or otherwise supplemented from time to time,
the “Credit Agreement”) (KeyBank, in its capacity as Agent, is hereinafter
referred to as “Agent”).  Capitalized
terms used herein that are not otherwise defined herein shall have the meanings
set forth in the Credit Agreement.


 


W I T N E S S E T H:


 


FOR AND IN
CONSIDERATION of the sum of
Ten and No/100 Dollars ($10.00) and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and in order to secure the
indebtedness and other obligations of Grantor and Borrower hereinafter set
forth, Grantor does hereby mortgage, grant, bargain, sell, convey, assign,
transfer and set over unto Agent, for the ratable benefit of Lenders, and their
successors and assigns, all of the following described land and interests in
land, estates, easements, rights, improvements, property, fixtures, equipment,
furniture, furnishings, appliances, general intangibles, and appurtenances,
whether now or hereafter existing or acquired (collectively, the “Property”;
provided, however, the Property shall not include personal property of tenants
under Leases or personal property of subtenants under subleases to which
neither the Borrower nor Grantor is the tenant or subtenant, as applicable, in
items that would otherwise constitute Property hereunder):


 


All those tracts or parcels
of land and easements commonly known as
                                  
located in
                  
County,
                                
more particularly described in Exhibit “A” attached hereto and by this
reference made a part hereof (the “Land”).


 


All present and future
buildings, structures, parking areas, annexations and improvements of every nature
whatsoever now or hereafter situated on the Land (hereinafter referred to as
the “Improvements”) and all materials intended for construction,
reconstruction, alteration and repairs of the Improvements now or hereafter
erected, all of which materials shall be deemed to be included within the
Improvements immediately upon the delivery thereof to the Land, and all gas and
electric fixtures, radiators, heaters, engines and machinery, boilers, ranges,
elevators and motors, plumbing and heating fixtures, incinerating, sprinkling,
and waste removal systems, carpeting and other floor coverings, fire
extinguishers and any other safety equipment required by governmental
regulation or law, washers, dryers, water heaters, mirrors, mantels, air
conditioning apparatus, refrigerating plants, refrigerators, cooking apparatus
and appurtenances, storm windows and doors, window and door screens, awnings
and storm sashes, which are or 


 

















 


shall be owned by Grantor
and attached to said Improvements and all other furnishings, furniture,
glassware, tableware, uniforms, linen, drapes and curtains and related hardware
and mounting devices, wall to wall carpeting, radios, lamps, telephone systems,
televisions and television systems, computer systems, guest ledgers, vehicles, fixtures,
machinery, equipment, apparatus, appliances, books and records, chattels,
inventory, accounts, farm products, consumer goods, general intangibles and
personal property of every kind and nature whatsoever now or hereafter owned by
Grantor and located in, on or about, or used or intended to be used with or in
connection with the use, operation or enjoyment of the Property, including all
extensions, additions, improvements, betterments, after-acquired property,
renewals, replacements and substitutions, or proceeds from a permitted sale of
any of the foregoing, together with the benefit of any deposits or payments now
or hereafter made by Grantor or on behalf of Grantor, all of which are hereby
declared and shall be deemed to be fixtures and accessions to the Land and a
part of the Property as between the parties hereto and all persons claiming by,
through or under them, and which shall be deemed to be a portion of the
security for the indebtedness herein described and to be secured by this
Instrument.


 


All easements, access
rights, rights-of-way, strips and gores of land, vaults, streets, ways, alleys,
passages, sewer rights, waters, water courses, water rights and powers,  irrigation systems (including, without limitation,
underground wiring, pipes, pumps and sprinkler heads), minerals, flowers,
plants, shrubs, crops, trees, timber, fences, signs, bridges, fountains,
monuments and other emblements now or hereafter located on the Land or under or
above the same or any part or parcel thereof, and all estates, rights, titles,
interests, privileges, liberties, servitudes, licenses, tenements,
hereditaments and appurtenances, reversion and reversions, remainder and
remainders, whatsoever, in any way belonging, relating or appertaining to the
Land or any part thereof, or which hereafter shall in any way belong, relate or
be appurtenant thereto, whether now owned or hereafter acquired by Grantor.


 


All leases, tenancies,
occupancies and licenses, whether oral or written (collectively, the “Leases”),
and all income, rents, issues, profits, room rentals, transient or guest
payments, fees, charges or other payments for the use or occupancy of rooms or
other facilities, and revenues of the Property from time to time accruing
(including, without limitation, all payments under Leases), all guarantees of
the foregoing or letters of credit relating to the foregoing, lease termination
payments, proceeds of insurance, condemnation payments, tenant security, damage
or other deposits whether held by Grantor or in a trust account, escrow funds,
fees, charges, rents, license fees, accounts, royalties, security, damage or
other deposits from time to time accruing, all payments under working
interests, production payments, royalties, overriding royalties, operating
interests, participating interest and other such entitlements, and all the
estate, right, title, interest, property, possession, claim and demand
whatsoever at law, as well as in equity, of Grantor of, in and to the same
(collectively, the “Revenues”); reserving only the right to Grantor to collect
the same (other than, subject to Section 7.7 of the Credit Agreement and Section 2.23
hereof, lease termination payments, insurance proceeds and condemnation
payments) so long as no Event of Default has occurred and is continuing.


 


All insurance policies,
building service, building maintenance, construction, development, management,
indemnity, and other similar agreements and contracts and subcontracts, written
or oral, express or implied, now or hereafter entered into, arising or in any
manner related to the purchase, construction, design, improvement, use,
operation, ownership, 


 


E-2

















 


occupation, enjoyment, sale,
conversion or other disposition (voluntary or involuntary) of the Property, or
the buildings and improvements now or hereafter located thereon, or any other
interest in the Property, or any combination thereof, franchise agreements,
property management agreements, cable television agreements, contracts for the
purchase of supplies, telephone service agreements, yellow pages or other
advertising agreements, sales contracts, construction contracts, architects
agreements, general contract agreements, design agreements, engineering
agreements, technical service agreements, sewer and water and other utility
agreements, service contracts, agreements relating to the collection of
receivables or use of customer lists, all bookings and reservations for space
or facilities within the Property, all purchase options, option agreements, rights
of first refusal, contract deposits, earnest money deposits, prepaid items and
payments due and to become due thereunder, and further including all payment
and performance bonds, labor, deposits, assurances, construction guaranties,
guaranties, warranties, indemnities and other undertakings, architectural plans
and specifications, drawings, surveys, soil reports, engineering reports,
inspection reports, environmental audits and other technical descriptions and
reports relating to the Property, renderings and models, permits, consents,
approvals, licenses, variances, agreements, contracts, building permits,  purchase orders and equipment leases,
personal property leases, and all causes of action relating thereto.


 


All deposit accounts,
instruments, accounts receivable, documents, causes of action, claims, names by
which the Property or the improvements thereon may be operated or known, all
rights to carry on business under such names, all telephone numbers or
listings, all rights, interest and privileges of which Grantor may have in any
capacity under any covenants, restrictions or declarations now or hereafter
relating to the Property or the Improvements, and all notes or chattel paper
now or hereafter arising from or by virtue of any transactions relating to the
Property or the Improvements located thereon and all customer lists, other
lists, and business information relating in any way to the Property or the
Improvements or the use thereof, whether now owned or hereafter acquired;


 


All assets related to the
ownership or operation of the Property or the Improvements now or hereafter
erected thereon, including, without limitation, accounts (including, without
limitation, health-care-insurance receivables), chattel paper (whether tangible
or electronic), deposit accounts, documents, general intangibles (including,
without limitation, payment intangibles, and all current and after acquired
copyrights, copyright rights, advertising materials, web sites, and web pages,
software and software licenses, trademarks and service marks, trademark rights,
trademark applications, service mark rights, service mark applications, trade
dress rights, company names, logos, and all domain names, owned or used in
connection with the Grantor’s business, and in each case all goodwill
associated therewith), goods (including, without limitation, inventory,
equipment, fixtures and accessions), instruments (including, without
limitation, promissory notes), investment property, letter-of-credit rights,
letters of credit, money, supporting obligations, as-extracted collateral,
timber to be cut and all proceeds and products of anything described or
referred to above in this Subsection (g), in each case as such terms are
defined under the Uniform Commercial Code as in effect in the applicable
jurisdiction.


 


All cash funds, deposit
accounts and other rights and evidence of rights to cash, now or hereafter
created or held by Agent pursuant to this Instrument, the Credit Agreement or
any other of the Loan Documents.


 


E-3
















 


All proceeds, products,
substitutions and accessions of the foregoing of every type.


 


TO HAVE AND TO HOLD the
Property and all parts, rights, members and appurtenances thereof, to the use,
benefit and behoof of Agent and the Lenders and their respective successors and
assigns, IN FEE SIMPLE forever; and Grantor covenants that Grantor is lawfully
seized and possessed of the Property as aforesaid, and has good right to convey
the same, that the same is unencumbered except for those matters expressly set
forth in Exhibit “B” attached hereto and by this reference made a part
hereof (the “Permitted Encumbrances”), and that Grantor does warrant and will
forever defend the title thereto against the claims of all persons whomsoever,
except as to those matters set forth in said Exhibit “B” attached hereto
or otherwise specifically approved by Agent in writing after the date hereof.


 


TO SECURE the following
described obligations (collectively, the “Secured Obligations”):


 


The debt evidenced by (i) those
certain Revolving Credit Notes made by Borrower in the aggregate principal
amount of One Hundred Ninety-Three Million and No/100 Dollars ($193,000,000.00)
to the order of Lenders, and (ii) that certain Swing Loan Note made by
Borrower in the principal amount of Twenty-Five Million  and No/100 Dollars ($25,000,000.00) to the
order of KeyBank, each of which has been issued pursuant to the Credit
Agreement and each of which is due and payable in full on or before December 11,
2010, unless extended as provided in the Credit Agreement; and (ii) each
other note as may be issued under the Credit Agreement, each as originally
executed, or if varied, extended, supplemented, consolidated, amended,
replaced, renewed, modified or restated from time to time as so varied,
extended, supplemented, consolidated, amended, replaced, renewed, modified or
restated (collectively, the “Notes”);


 


The payment, performance and
discharge of each and every obligation, covenant and agreement of Grantor
contained herein or of Grantor contained in that certain Unconditional Guaranty
of Payment and Performance by Grantor and others in favor of KeyBank, as Agent
for itself and each other Lender, dated as of December 11, 2007, as
amended by that certain First Amendment to Credit Agreement and Other Loan Documents
dated as of even date herewith (as amended, restated, modified, renewed,
supplemented or extended from time to time, the “Guaranty”), of Borrower
contained in the Credit Agreement, and of Grantor and Borrower in the other
Loan Documents, including, without limitation, the obligation of Borrower to
reimburse Issuing Lender for any draws under the Letters of Credit, and in the
other Loan Documents;


 


Any and all additional
advances made by Agent or any Lender to protect or preserve the Property or the
lien and security title hereof in and to the Property, or for taxes,
assessments or insurance premiums as hereinafter provided (whether or not
Grantor is the owner of the Property at the time of such advances);


 


Any and all other
indebtedness now or hereafter owing by Borrower to Agent or any Lender pursuant
to the terms of the Credit Agreement, whether now existing or hereafter arising
or incurred, however evidenced or incurred, whether express or implied, direct
or indirect, absolute or contingent, due or to become due, including, without
limitation, all principal, interest, 


 


E-4

















 


fees, expenses, yield
maintenance amounts and indemnification amounts, and all renewals,
modifications, consolidations, replacements and extensions thereof; and


 


All costs and expenses
incurred by the Agent and the Lenders in connection with the enforcement and
collection of the Secured Obligations, including, without limitation, all
attorneys’ fees and disbursements, and all other such costs and expenses
described in and incurred pursuant to the Notes, the Credit Agreement, the
Guaranty, this Instrument, and the other Loan Documents (collectively, the “Enforcement
Costs”).


 


Subject to Section 2.22
hereof, should the Secured Obligations secured by this Instrument be paid and
performed according to the terms and effect thereof when the same shall become
due and payable, and should Grantor perform all covenants contained herein in a
timely manner and the obligation of the Lenders to make Loans and issue Letters
of Credit under the Credit Agreement has terminated (other than surviving
indemnity obligations as to which no claim is then pending), then this
Instrument shall be released.


 


Grantor hereby further
covenants and agrees with Agent as follows:


 


ARTICLE 1


 


1.01         Payment
of Secured Obligations.  Grantor will pay
and perform or cause to be paid and performed the Secured Obligations according
to the tenor thereof and all other sums now or hereafter secured hereby as the
same shall become due.


 


1.02         Funds
for Impositions.  After the occurrence
and during the continuance of an Event of Default, Grantor shall pay to Agent,
subject to Agent’s option under Section 1.03 hereof, on the days that
monthly installments of interest are payable under the Notes, until the Notes
are paid in full, a sum (hereinafter referred to as the “Funds”) reasonably
estimated by Agent to provide an amount necessary for payment of the following
items in full fifteen (15) days prior to when such items become due (hereinafter
collectively referred to as the “Impositions”): (a) the yearly real estate
taxes, ad valorem taxes, personal property taxes, assessments and betterments,
and (b) the yearly premium installments for the insurance covering the
Property and required by the Credit Agreement. 
The Impositions shall be reasonably estimated initially and from time to
time by Agent on the basis of assessments and bills and estimates thereof.  The Funds shall be held by Agent in a
separate interest bearing account free of any liens or claims on the part of
other creditors of Grantor and as part of the security for the Secured
Obligations.  Grantor shall pay all
Impositions prior to delinquency as required by Section 1.03 hereof.  In the event Agent elects to reserve Funds as
permitted under this Section 1.02, within ten (10) days after Grantor
furnishes Agent with reasonably satisfactory evidence that Grantor has paid one
or more of the items comprising the Impositions, Agent shall reimburse Grantor
(or the one paying the Impositions) therefor to the extent of the Funds (plus
accrued interest) then held by Agent. 
Alternatively, Agent shall apply the Funds to pay the Impositions with
respect to which the Funds were paid to the extent of the Funds then held by
Agent and provided Grantor has delivered to Agent the assessments or bills
therefor.  Grantor shall be permitted to
pay any Imposition early in order to take advantage of any available
discounts.  Agent shall make no charge
for so holding and applying the Funds or for verifying and 


 


E-5

















 


compiling said assessments
and bills.  The Funds are pledged as
additional security for the Secured Obligations, and may be applied, at Agent’s
option and without notice to Grantor, to the payment of the Secured Obligations
upon the occurrence of any Event of Default. 
If at any time the amount of the Funds held by Agent shall be less than
the amount reasonably deemed necessary by Agent to pay Impositions as such
become due, Grantor shall pay to Agent any amount necessary to make up the
deficiency within fifteen (15) business days after notice from Agent to Grantor
requesting payment thereof.  Upon payment
and performance in full of the Secured Obligations and termination of the
obligation of the Lenders to make Loans and of Issuing Lender to issue Letters
of Credit, Agent shall promptly refund to Grantor any Funds then held by Agent.


 


1.03         Impositions,
Liens and Charges.  Grantor shall pay all
Impositions and other charges, if any, attributable to the Property prior to
delinquency, and at Agent’s option during the continuance of an Event of
Default, Grantor shall pay in the manner hereafter provided under this Section 1.03.  Grantor shall, during continuance of an Event
of Default, furnish to Agent all bills and notices of amounts due under Section 1.03
as soon as received, and in the event Grantor shall make payment directly,
Grantor shall, as and when available, furnish to Agent receipts evidencing such
payments prior to the dates on which such payments are delinquent, subject to
Grantor’s right to contest taxes, assessments and other governmental charges as
provided in the Credit Agreement. 
Grantor shall promptly discharge (by bonding, payment or otherwise) any
lien filed against the Property or Grantor (including federal tax liens) and
will keep and maintain the Property free from the claims of all persons
supplying labor or materials to the Property, subject to Grantor’s right to
contest the same as provided in the Credit Agreement.  Grantor shall not claim or be entitled to any
credit against the taxable value of the Property by reason of this Instrument,
or any deduction in or credit on the Secured Obligations by reason of
Impositions paid.


 


1.04         Taxes,
Liens and Other Charges.


 


(a)           In
the event of the passage of any state, federal, municipal or other governmental
law, order, rule or regulation, subsequent to the date hereof, in any
manner changing or modifying the laws now in force governing the taxation of
debts secured by mortgages or the manner of collecting taxes so as to adversely
affect Agent or the Lenders, Grantor will promptly pay any such tax.  If Grantor fails to make such payment
promptly, or if, in the opinion of Agent, any such state, federal, municipal,
or other governmental law, order, rule or regulation prohibits Grantor
from making such payment or would penalize Agent or the Lenders if Grantor
makes such payment or if, in the opinion of Agent, the making of such payment
could reasonably result in the imposition of interest beyond the maximum amount
permitted by applicable law, then (i) the Total Commitment shall be
reduced by 125% of the Allocated Loan Amount associated with the Property, (ii) notwithstanding
the terms of Section 5.4(e) of the Credit Agreement, within sixty (60)
days of demand, the Borrower shall pay to Agent for the pro rata accounts of
the Lenders, an amount necessary such that the amount of the outstanding Loans
and Letter of Credit Liabilities do not exceed the Total Commitment or the
Borrowing Base Availability, and (iii) the Property shall no longer be
included in the Borrowing Base.


 


E-6

















 


(b)           Grantor
will pay all taxes, liens, assessments and charges of every character including
all utility charges, whether public or private, already levied or assessed or
that may hereafter be levied or assessed upon or against the Property as
required under the Credit Agreement.


 


1.05         Insurance.


 


Unless Borrower has already
done so, Grantor shall procure for, deliver to and maintain for the benefit of
Agent and Lenders the insurance policies described in Section 7.7 of the
Credit Agreement.  Grantor shall pay all
premiums on such insurance policies.  All
proceeds of any property or casualty insurance or awards of damages on account
of any taking or condemnation for public use of or injury to the Property are
hereby assigned and shall be paid to Agent, for the benefit of the Lenders,
subject to Borrower’s and Grantor’s right to adjust certain claims and use such
proceeds as provided in the Credit Agreement. 
Any such proceeds shall be released and advanced to Borrower or Grantor
in accordance with and subject to the requirements of the Credit Agreement and
be applied to the cost of repairing or restoring the Property or the remaining
portion of the Property, with any balance remaining to be applied in accordance
with the terms and provisions of the Credit Agreement.  In the event of a foreclosure sale of all or
any part of the Property pursuant to the enforcement of this Instrument, the
purchaser of such Property shall succeed to all rights of Grantor, including
any rights to the proceeds of insurance and to unearned premiums, in and to all
of the policies of insurance to the extent that they relate to the Property.  In the event of a foreclosure sale, Agent is
hereby authorized, without the further consent of Grantor, to take such steps
as Agent may deem advisable to cause the interest of such purchaser to be
protected by any of such policies.


 


1.06         Condemnation.  If all or any portion of the Property shall
be damaged or taken through condemnation (which term when used in this
Instrument shall include any damage or taking by any governmental authority or
any transfer by private sale in lieu thereof), either temporarily or permanently,
then all compensation, awards and other payments or relief thereof, shall be
paid and applied in accordance with terms and provisions of the Credit
Agreement.


 


1.07         Care,
Use and Management of Property.


 


(a)           Grantor
will keep, or cause to be kept, the roads and walkways, landscaping and all
other Improvements of any kind now or hereafter erected on the Land or any part
thereof in good condition and repair, will not commit or suffer any waste,
impairment or deterioration (ordinary wear and tear excepted) and will not do
or suffer to be done anything which will increase, except to a de minimus
extent, the risk of fire or other hazard to the Property or any part thereof.


 


(b)           Other
than minor articles of personal property not material to the value or operation
of the Property, Grantor will not remove or demolish nor alter the structural
character of any building located on the Land or any fixtures or personal
property relating thereto except when incidental to the replacement of fixtures
and personal property with items of like quality and utility (which would not
impair the value of the Property as a whole) or customary tenant improvements
pursuant to Leases approved or deemed approved pursuant to the Credit
Agreement.


 


E-7

















 


(c)           If
the Property or any material part thereof is materially damaged by fire or any
other cause, Grantor will give prompt written notice thereof to Agent.


 


(d)           To
the extent not prohibited under the terms of the applicable Leases, Agent and
each of the Lenders or its representative is hereby authorized, upon reasonable
notice, to enter upon and inspect the Property at any time during normal
business hours.


 


(e)           Grantor
will promptly comply with all present and future laws, ordinances, rules and
regulations of any governmental authority, all restrictive covenants and other
agreements affecting the Property or relating to the operation thereof  affecting the Property or any part thereof
and all licenses or permits affecting the Property or any part thereof, subject
to Grantor’s right to contest the same as provided in the Credit Agreement.


 


(f)            Grantor
shall keep the Property, including the Improvements and the Personal Property
(as hereinafter defined), in good order, repair and tenantable condition and
shall replace fixtures, equipment, machinery and appliances on the Property
when necessary to keep such items in first class order, repair, and tenantable
condition (ordinary wear and tear excepted).


 


(g)           Grantor
shall keep all franchises, trademarks, trade names, service marks and licenses
and permits necessary for the Grantor’s use and occupancy of the Property in
good standing and in full force and effect.


 


(h)           Unless
required by applicable law or unless Agent has otherwise agreed in writing, Grantor
shall not allow changes in the nature of the occupancy or use for which the
Property was intended at the time this Instrument was executed.  Grantor shall not abandon the Property.  Grantor shall not initiate, fail to contest
or acquiesce in a change in the zoning classification of the Property or
subject the Property to restrictive or negative covenants without Agent’s
written consent.  Grantor shall in all
material respects comply with, observe and perform all zoning and other laws
affecting the Property, all agreements and restrictive covenants affecting the
Property, and all licenses and permits affecting the Property, subject to
Grantor’s right to contest compliance with laws to the extent permitted in the
Credit Agreement.


 


(i)            Agent
may, at Grantor’s expense, make or cause to be made reasonable entries upon and
inspections of the Property as permitted in the Credit Agreement, or at any
other time when necessary or appropriate, in the sole reasonable discretion of
Agent, to protect or preserve the Property.


 


(j)            If
all or any part of the Property shall be damaged by fire or other casualty or
loss, then, subject to the provisions of the Credit Agreement, Grantor will
promptly restore the Property to the equivalent of its original condition; and
if a part of the Property shall be damaged through condemnation, Grantor will
promptly restore, repair or alter the remaining portions of the Property in a
manner satisfactory to Agent. 
Notwithstanding the foregoing, Grantor shall not be obligated to so restore
unless, in each instance, Agent agrees to make available to Grantor (subject to
the terms of the Credit Agreement) any net insurance or condemnation proceeds
actually received by Agent hereunder in connection with such casualty loss or
condemnation, to the extent such proceeds are required to defray the expense of
such restoration; provided, 


 


E-8

















 


however, that, subject to
the provisions of the Credit Agreement, the insufficiency of any such insurance
or condemnation proceeds to defray the entire expense of restoration shall in
no way relieve Grantor of its obligation to restore.


 


(k)           Grantor
shall pay all normal and customary operating expenses for the Property as the
same become due.


 


1.08         Leases
and other Agreements Affecting Property.


 


(a)           As
additional security for the Secured Obligations, Grantor presently and
unconditionally assigns and transfers to Agent all of Grantor’s right, title
and interest in and to the Leases and the Revenues, including those now due,
past due or to become due by virtue of any of the Leases for the occupancy or
use of all or any part of the Property. 
Grantor hereby authorizes Agent or Agent’s agents to collect the
Revenues and hereby directs such tenants, lessees and licensees of the Property
to pay the Revenues to Agent or Agent’s agents; provided, however, Grantor
shall have a license (revocable upon the occurrence and during the continuance
of an Event of Default) to collect and receive the Revenues.  Grantor agrees that each and every tenant,
lessee and licensee of the Property may pay, and hereby irrevocably authorizes
and directs each and every tenant, lessee and licensee of the Property to pay,
the Revenues to Agent or Agent’s agents on Agent’s written demand therefor (which
demand may be made by Agent at any time after the occurrence and during the
continuance of an Event of Default) without any obligation on the part of said
tenant, lessee or licensee to inquire as to the existence of an Event of
Default and notwithstanding any notice or claim of Grantor to the contrary, and
Grantor agrees that Grantor shall have no right or claim against said tenant,
lessee or licensee for or by reason of any Revenues paid to Agent following
receipt of such written demand.


 


(b)           Grantor
hereby covenants that Grantor has not executed any prior assignment of the
Leases or the Revenues, that Grantor has not performed, and will not perform,
any acts and has not executed, and will not execute, any instruments which
would prevent Agent from exercising the rights of the beneficiary of this
Instrument, and that at the time of execution of this Instrument, there has
been no anticipation or prepayment of any of the Revenues for more than one (1) month
prior to the due dates of such Revenues. 
Grantor further covenants that Grantor will not hereafter collect or
accept payment of any Revenues more than one (1) month prior to the due
dates of such Revenues.


 


(c)           Grantor
agrees that neither the foregoing assignment of Leases and Revenues nor the
exercise of any of Agent’s rights and remedies under this Section or Article 2
hereof shall be deemed to make Agent a mortgagee-in-possession or otherwise
responsible or liable in any manner with respect to the Leases, the Property or
the use, occupancy, enjoyment or operation of all or any portion thereof,
unless and until Agent, in person or by agent, assumes actual possession
thereof.  Grantor further agrees that the
appointment of any receiver for the Property by any court at the request of
Agent or by agreement with Grantor, or the entering into possession of any part
of the Property by such receiver, shall not be deemed to make Agent a
mortgagee-in-possession or otherwise responsible or liable in any manner with
respect to the Leases, the Property or the use, occupancy, enjoyment or
operation of all or any portion thereof.


 


E-9

















 


(d)           If
Agent exercises its rights and remedies pursuant to this Section or Article 2
hereof, all Revenues thereafter collected shall be applied in such order as
Agent may elect in its discretion to the reasonable costs of taking control of
and managing the Property and collecting the Revenues, including, but not
limited to, reasonable attorneys’ fees actually incurred, fees, receiver fees,
premiums on receiver’s bonds, costs of repairs to the Property, premiums on
insurance policies, Impositions and other charges on the Property, and the
costs of discharging any obligation or liability of Grantor as landlord, lessor
or licensor of the Property, or to the Secured Obligations.  Agent or any receiver shall have access to
the books and records used in the operation and maintenance of the Property and
shall be liable to account only for those Revenues actually received.  Agent shall not be liable to Grantor, anyone
claiming under or through Grantor or anyone having an interest in the Property
by reason of anything done or left undone by Agent pursuant to this Section or
Article 2 hereof, except in the event of Agent’s gross negligence or
willful misconduct.   If the Revenues are not sufficient to meet the
costs of taking control of and managing the Property and collecting the
Revenues, any monies reasonably expended by Agent for such purposes shall
become a portion of the Secured Obligations. 
Unless Agent and Grantor agree in writing to other terms of payment,
such amounts shall be payable upon notice from Agent to Grantor requesting
payment thereof and shall bear interest from the date of disbursement at the
Default Rate  stated in the Credit
Agreement unless payment of interest at such rate would be contrary to
applicable law, in which event such amounts shall bear interest at the highest
rate which may be collected from Grantor under applicable law.  The entering upon and taking possession of
and maintaining of control of the Property by Agent or any receiver and the
application of Revenues as provided herein shall not cure or waive any Event of
Default or invalidate any other right or remedy of Agent hereunder.


 


(e)           It
is the intention of Agent and Grantor that the assignment effectuated by this
Instrument with respect to the Revenues shall be a direct and currently
effective assignment and shall not constitute merely an obligation to grant a
lien, security interest or pledge for the purpose of securing the Secured
Obligations.


 


(f)            In
the event that a court of competent jurisdiction determines that,
notwithstanding such expressed intent of the parties, Agent’s interest in the
Revenues constitutes a lien on or security interest in or pledge of the Revenues,
it is agreed and understood that the forwarding of a notice to Borrower after
the occurrence of an Event of Default advising Borrower of the revocation of
Borrower’s license to collect such Revenues, shall be sufficient action by
Agent to (i) perfect such lien on or security interest in or pledge of the
Revenues, (ii) take possession thereof and (iii) entitle Agent to
immediate and direct payment of the Revenues, for application as provided in
this Instrument, all without the necessity of any further action by Agent,
including, without limitation, any action to obtain possession of the Land,
Improvements or any other portion of the Property.


 


1.09         Leases
of the Property.


 


(a)           Except
as permitted in the Credit Agreement, Grantor shall not enter into any Lease of
all or any portion of the Property or amend, supplement or otherwise modify, or
terminate or cancel, or accept the surrender of, or consent to the assignment
or subletting of, or grant any concessions to or waive the performance of any
obligations of any tenant, lessee or licensee under, any now existing or future
Lease of the Property, without the prior written 


 


E-10

















 


consent of Agent.  Grantor, at Agent’s request, shall furnish
Agent with executed copies of all Leases hereafter made of all or any part of
the Property.  Upon Agent’s request,
Grantor shall make a separate and distinct assignment to Agent, as additional
security, of all Leases hereafter made of all or any part of the Property.


 


(b)           There
shall be no merger of the leasehold estates created by the Leases with the fee
estate of the Property without the prior written consent of Agent.  Agent may at any time and from time to time
by specific written instrument intended for the purpose, unilaterally
subordinate the lien of this Instrument to any Lease, without joinder or
consent of, or notice to, Grantor, any tenant or any other Person, and notice
is hereby given to each tenant under a Lease of such right to subordinate.  No such subordination shall constitute a
subordination to any lien or other encumbrance, whenever arising, or improve
the right of any junior lienholder. 
Nothing herein shall be construed as subordinating this Instrument to
any Lease.


 


(c)           Grantor
hereby appoints Agent its attorney-in-fact, coupled with an interest,
empowering Agent to subordinate this Instrument to any Leases.


 


1.10         Security
Agreement.


 


(a)           Insofar
as the machinery, apparatus, equipment, fittings, fixtures, building supplies
and materials, general intangibles and articles of personal property either
referred to or described in this Instrument as part of the Property, or in any
way connected with the use and enjoyment of the Property is concerned, Grantor
grants unto Agent a security interest therein and this Instrument is hereby
made and declared to be a security agreement, encumbering each and every item
of personal property (the “Personal Property”) included herein, in compliance
with the provisions of the Uniform Commercial Code as enacted in the applicable
jurisdiction as set forth in Section 3.04
below (the “UCC”).  A
financing statement or statements affecting all of said personal property
aforementioned, shall be appropriately filed. 
The remedies for any violation of the covenants, terms and conditions of
the security agreement herein contained shall be, subject to the provisions of
the Credit Agreement (i) as prescribed herein with respect to the
Property, or (ii) as prescribed by general law, or (iii) as
prescribed by the specific statutory consequences now or hereafter enacted and
specified in said UCC, all at Agent’s sole election.  Grantor and Agent agree that the filing of
such financing statement(s) in the records normally having to do with
personal property shall never be construed as in any way derogating from or
impairing this declaration and hereby stated intention of Grantor and Agent
that everything used in connection with the production of income from the
Property and/or adapted for use therein and/or which is described or reflected
in this Instrument, is to the full extent provided by law, and at all times and
for all purposes and in all proceedings both legal or equitable shall be,
regarded as part of the real estate irrespective of whether (i) any such
item is physically attached to the Improvements, (ii) serial numbers are
used for the better identification of certain items capable of being thus
identified in a recital contained herein, or (iii) any such item is
referred to or reflected in any such financing statement(s) so filed at
any time.  Similarly, the mention in any
such financing statement(s) of the rights in and to (1) the proceeds
of any fire and/or hazard insurance policy, or (2) any award in eminent
domain proceedings for a taking or for loss of value, or (3) Grantor’s
interest as lessor in any present or future lease or rights to income growing
out of the use and/or occupancy of the Property, whether pursuant to lease or
otherwise, shall never be construed as in any way altering any of the rights of
Agent as determined by this 


 


E-11

















 


Instrument, subject to the
provisions of the Credit Agreement or impugning the priority of Agent’s lien
granted hereby or by any other recorded document, but such mention in such
financing statement(s) is declared to be for the protection of Agent in
the event any court shall at any time hold with respect to the foregoing (1), (2) or
(3), that notice of Agent’s priority of interest to be effective against a
particular class of persons, must be filed in the UCC records.


 


(b)           Grantor
warrants that (i) Grantor’s (that is, “Debtor’s”) correct legal name
(including, without limitation, punctuation and spacing) indicated on the
public record of Grantor’s jurisdiction of organization, identity or corporate
structure, residence or chief executive office and jurisdiction of organization
are as set forth in Subsection 1.10(c) hereof; (ii) Grantor (that is,
“Debtor”) has been using or operating under said name, identity or corporate
structure without change for the time period set forth in Subsection 1.10(c) hereof,
and (iii) the location of the tangible Personal Property secured by this
Instrument is upon the Land (except that the books and records related to the
Property may be stored and maintained at another site). Grantor covenants and
agrees that Grantor shall not change any of the matters addressed by clauses (i) or
(iii) of this Subsection 1.10(b) unless it has given Agent thirty
(30) days prior written notice of any such change and Grantor authorizes Agent to
file such additional financing statements or other instruments in such
jurisdictions as Agent may deem necessary or advisable in its sole discretion
to prevent any filed financing statement from becoming misleading or losing its
perfected status.


 


(c)           The
information contained in this Subsection 1.10(c) is provided in order that
this Instrument shall comply with the requirements of the Uniform Commercial
Code, as enacted in the State of
                              ,
for instruments to be filed as financing statements.  The names of the “Debtor” and the “Secured
Party”, the identity or corporate structure, jurisdiction of organization,
organizational number, federal tax identification number, and residence or
chief executive office of “Debtor”, and the time period for which “Debtor” has
been using or operating under said name and identity or corporate structure
without change, are as set forth in Schedule 1 of Exhibit “C” attached
hereto and by this reference made a part hereof; the mailing address of the “Secured
Party” from which information concerning the security interest may be obtained,
and the mailing address of “Debtor”, are as set forth in Schedule 2 of Exhibit “C”
attached hereto; and a statement indicating the types, or describing the items,
of Personal Property secured by this Instrument is set forth hereinabove.


 


(d)           Exhibit “C”
correctly sets forth all names and tradenames that Grantor has used within the
last five years, and also correctly sets forth the locations of all of the
chief executive offices of Grantor over the last five years.


 


(e)           The
Grantor hereby covenants and agrees that:


 


(1)           Grantor
shall not merge or consolidate into, or transfer any of the Property to, any
other person or entity except as permitted under the Credit Agreement.


 


(2)           Grantor
shall, at any time and from time to time, take such steps as Agent may
reasonably request for Agent (A) to use commercially reasonable efforts to
obtain an acknowledgment, in form and substance reasonably satisfactory to
Agent, of any bailee having possession of any of the Property, stating that the
bailee holds possession of such Property on 


 


E-12

















 


behalf of Agent, (B) to
obtain “control” of any investment property, letter-of-credit rights, or
electronic chattel paper (as such terms are defined by the UCC with
corresponding provisions thereof defining what constitutes “control” for such
items of collateral), with any agreements establishing control to be in form
and substance reasonably satisfactory to Agent, and (C) otherwise to
insure the continued perfection and priority of the Agent’s security interest
in any of the Property and of the preservation of its rights therein.  If Grantor shall at any time, acquire a “commercial
tort claim” (as such term is defined in the UCC) with respect to the Property
or any portion thereof, Grantor shall promptly notify Agent thereof in writing,
providing a reasonable description and summary thereof, and shall execute a
supplement to this Instrument in form and substance acceptable to Agent
granting a security interest in such commercial tort claim to Agent.


 


(3)           Grantor
hereby authorizes Agent, its counsel or its representative, at any time and
from time to time, to file financing statements, amendments and continuations
that describe or relate to the Property or any portion thereof in such
jurisdictions as Agent may deem necessary or desirable in order to perfect the
security interests granted by Grantor under this Instrument or any other Loan
Document, and such financing statements may contain, among other items as Agent
may deem advisable to include therein, the federal tax identification number of
Grantor.


 


(4)           Grantor
shall not license, lease, sell or otherwise transfer any of the general
intangibles to any third party during the term of this Instrument and the
Credit Agreement without the prior written consent of the Agent (which consent
may be withheld in the Agent’s sole discretion); and the Grantor will continue
to use all trademarks, service marks and trade names in a consistent manner and
shall take all commercially reasonable steps to properly maintain any formal
registrations on the general intangibles that are material to the value or
operation of the Property, and to defend and enforce them, for the term of this
Instrument and the Credit Agreement.


 


1.11         Further
Assurances; After-Acquired Property.  At
any time and from time to time, upon request by Agent, Grantor will make,
execute and deliver or cause to be made, executed and delivered, to Agent and,
where appropriate, cause to be recorded and/or filed and from time to time
thereafter to be rerecorded and/or refiled at such time and in such offices and
places as shall reasonably be deemed desirable by Agent, any and all such other
and further deeds of trust, security agreements, financing statements, notice
filings, continuation statements, instruments of further assurance,
certificates and other documents as may, in the reasonable opinion of Agent, be
necessary or desirable in order to effectuate, complete, or perfect, or to
continue and preserve (a) the obligation of Grantor under the Guaranty,
this Instrument and the other Loan Documents and (b) this Instrument as a
first and prior lien upon and security interest in and to all of the Property,
whether now owned or hereafter acquired by Grantor. Upon any failure by Grantor
so to do, Agent may make, execute, record, file, re-record and/or refile any
and all such deeds of trust, security agreements, financing statements,
continuation statements, instruments, certificates, and documents for and in
the name of Grantor and Grantor hereby irrevocably appoints Agent the agent and
attorney-in-fact of Grantor so to do. The lien hereof will automatically
attach, without further act, to all after acquired property attached to and/or
used in the operation of the Property or any part thereof.


 


E-13
















 


1.12         Expenses.  Grantor
will pay or reimburse Agent, upon demand therefor, for all reasonable attorney’s
fees, costs and expenses incurred by Agent in any suit, action, legal
proceeding or dispute of any kind in which Lenders or Agent is made a party or
appears as party plaintiff or defendant, affecting or arising in connection
with the Secured Obligations secured hereby, this Instrument or the interest
created herein, or the Property, including, but not limited to, the exercise of
the power of sale contained in this Instrument, any condemnation action
involving the Property or any action to protect the security hereof; and any
such amounts paid by Lenders or Agent shall be added to the Secured Obligations
secured by the lien of this Instrument.


 


1.13         Subrogation.  Agent
shall be subrogated to the claims and liens of all parties whose claims or
liens are discharged or paid with the proceeds of the Secured Obligations
secured hereby.


 


1.14         Limit of Validity. 
If from any circumstances whatsoever fulfillment of any provision of
this Instrument, the Guaranty, the Credit Agreement, the Notes or any other
Loan Document, at the time performance of such provision shall be due, shall be
subject to the defense of usury or otherwise transcend or violate applicable law
concerning interest or other charges, then ipso facto the obligation to be
fulfilled shall be reduced to the limit, so that in no event shall any exaction
be possible under this Instrument, the Guaranty, the Notes, the Credit
Agreement or any other Loan Document be subject to the defense of usury or
otherwise transcend or violate applicable law concerning interest or other
charges that is in excess of the current limit, but such obligation shall be
fulfilled to the maximum limit permitted. 
The provisions of this Section 1.14 shall control every other provision
of this Instrument, the Guaranty, the Notes, the Credit Agreement or any other
Loan Document.


 


1.15         Conveyance of Property. 
Grantor hereby acknowledges to Agent that (a) the identity and expertise
of Grantor was and continues to be a material circumstance upon which Agent has
relied in connection with, and which constitute valuable consideration to Agent
for, the extending to Borrower of the loans and other extensions of credit
evidenced by the Notes and Credit Agreement, and (b) any change in such
identity or expertise could materially impair or jeopardize the security for
the payment of the Secured Obligations granted to Agent by this Instrument.
Grantor therefore covenants and agrees with Agent, as part of the consideration
for the extending to Grantor of the loans evidenced by the Notes, that Grantor
shall not convey, transfer, assign, further encumber or pledge any or all of
its interest in the Property except as permitted under the Credit Agreement.


 


ARTICLE 2


 


2.01         Events of Default. 
The terms “Default” and “Event of Default” as used herein shall have the
following meanings:


 


“Default” shall mean any event which, with the giving of
notice or the lapse of time, or both, would become an Event of Default.


 


E-14

















 


“Event of Default” shall mean (a) any default in the
payment of the obligations of Grantor hereunder or of Borrower or any other
Guarantor under any of the other Loan Documents when the same shall become due
and payable which is not cured within any grace or notice and cure period
provided in the Credit Agreement or such other Loan Documents, if any, subject
to any limitations in the Credit Agreement on the right of Grantor, Borrower or
any other Guarantor to receive notices of default, or (b) any default in the
performance of any other obligations of Grantor hereunder which is not cured
within any grace or cure period provided in the Credit Agreement (it being
acknowledged by Grantor that no such cure period is provided with respect to a
failure to maintain insurance as required in Section 1.05, any default under Section
1.08, any default under Section 1.15, or any default excluded from any
provision for a grace period or cure of defaults contained in the Credit
Agreement, the Security Documents (as defined in the Credit Agreement) or any
other agreement evidencing or securing the Secured Obligations), or (c) any
representation or warranty of Grantor hereunder proving to be false or
incorrect in any material respect upon the date when made or deemed to have
been repeated, or (d) any default in the performance of the obligations of
Grantor or Borrower or any other Person under any of the Security Documents
beyond the expiration of any applicable notice and cure period, (e) the
occurrence of any “Event of Default” under the Credit Agreement or any other
Loan Document, (f) any amendment to or termination of a financing statement
naming Grantor as debtor and Agent as secured party, or any correction statement
with respect thereto, is filed in any jurisdiction by, or caused by, or at the
instance of Grantor or by, or caused by, or at the instance of any principal,
member, general partner or officer of Grantor (collectively, “Grantor Party”)
without the prior written consent of Agent; or (g) in the event that any
amendment to or termination of a financing statement naming Grantor as debtor
and Agent as secured party, or any correction statement with respect thereto,
is filed in any jurisdiction by any party other than a Grantor Party or Agent
or Agent’s counsel without the prior written consent of Agent, failure by
Grantor, within fifteen (15) days after notice to Grantor thereof (or such
longer period as Agent may agree to in writing) (i) to deliver to Agent UCC
financing statement searches of the appropriate jurisdiction(s) or other
evidence reasonably satisfactory to Agent that no other liens or security
interests (except for such, if any, as constitute Permitted Encumbrances
hereunder) have been filed against any of the Property,  (ii) to authorize, and execute any documents
reasonably requested by Agent to evidence authorization of, the filing of any
new financing statements, amendments or acknowledgements with respect to the
affected financing statement deemed necessary by Agent to restore Agent’s lien
priority, and (iii) to execute any acknowledgement or other document reasonably
requested by Agent to acknowledge and evidence the termination or nullification
of such unauthorized amendment, termination or correction statement.


 


2.02         Acceleration of Maturity. 
If an Event of Default shall have occurred and be continuing, then the
entire Secured Obligations secured hereby shall, at the option of Agent and as
permitted by the terms of the Credit Agreement, immediately become due and
payable without notice or demand except as required by law, time being of the
essence of this Instrument.


 


E-15

















 


2.03         Right to Enter and Take Possession.


 


(a)           If an Event of Default shall have occurred and be continuing, Grantor, upon
demand of Agent, shall forthwith surrender to Agent the actual possession of
the Property, and if and to the extent permitted by law, Agent itself, or by
such officers or agents as it may appoint, may enter and take possession of all
the Property (or such portion or portions as Agent may select) without the
appointment of a receiver, or an application therefor, and may exclude Grantor
and its agents and employees wholly therefrom, and may have joint access with
Grantor to the books, papers and accounts of Grantor.


 


(b)           If Grantor shall for any reason fail to surrender or deliver the Property
or any part thereof after such demand by Agent, Agent may obtain a judgment or
decree conferring upon Agent the right to immediate possession or requiring
Grantor to deliver immediate possession of the Property to Agent. Grantor will
pay to Agent, upon demand, all expenses of obtaining such judgment or decree,
including reasonable compensation to Agent, its attorneys and agents; and all
such expenses and compensation shall, until paid, be secured by the lien of
this Instrument.


 


(c)           Upon every such entering upon or taking of possession, Agent may hold,
store, use, operate, manage and control the Property and conduct the business
thereof and, from time to time, (i) make all necessary and proper maintenance,
repairs, renewals, replacements, additions, betterments and improvements
thereto and thereon and purchase or otherwise acquire additional fixtures,
personalty and other property; (ii) insure or keep the Property insured; (iii) lease,
manage and operate the Property and exercise all the rights and powers of
Grantor to the same extent as Grantor could in its own name or otherwise with
respect to the same; and (iv) enter into any and all agreements with respect to
the exercise by others of any of the powers herein granted Agent, all as Agent
from time to time may determine to be in its best interest. Agent may collect
and receive all the rents, issues, profits and revenues from the Property,
including those past due as well as those accruing thereafter, and, after
deducting (1) all expenses of taking, holding, managing and operating the
Property (including compensation for the services of all persons employed for
such purposes); (2) the cost of all such maintenance, repairs, renewals,
replacements, additions, betterments, improvements, purchases and acquisitions;
(3) the cost of such insurance; (4) such taxes, assessments and other similar
charges as Agent may at its option pay; (5) other proper charges upon the
Property or any part thereof; and (6) the reasonable compensation, expenses and
disbursements of the attorneys and agents of Agent, Agent shall apply the
remainder of the monies and proceeds so received by Agent in accordance with Section
12.5 of the Credit Agreement.  Agent
shall have no obligation to discharge any duties of a landlord to any tenant or
to incur any liability as a result of any exercise by Agent of any rights under
this Instrument or otherwise.  Agent shall
not be liable for any failure to collect rents, issues, profits and revenues
from the Property, nor shall Agent be liable to account for any such rents,
issues, profits or revenues unless actually received by Agent.


 


(d)           Whenever all that is due upon the Secured Obligations and under any of the
terms, covenants, conditions and agreements of this Instrument shall have been
paid, the Lenders have no obligation to make further Loans and the Issuing
Lender has no further obligation to issue Letters of Credit, and all Events of
Default cured, Agent shall surrender possession of the Property to Grantor, its
successors or assigns.  The same right of
taking 


 


E-16

















 


possession, however, shall exist if any subsequent Event of Default shall
occur and be continuing.


 


2.04         Performance by Agent. 
If there shall be a Default or Event of Default in the payment,
performance or observance of any term, covenant or condition of this
Instrument, Agent may, so long as such Default or Event of Default continues,
at its option, pay, perform or observe the same, and all payments made or costs
or expenses incurred by Agent in connection therewith, shall be secured hereby
and shall be, upon demand, immediately repaid by Grantor to Agent with interest
thereon at the Default Rate.  Agent shall
be the sole judge of the necessity for any such actions and of the amounts to
be paid. Agent is hereby empowered to enter and to authorize others to enter upon
the Land or any part thereof for the purpose of performing or observing any
such defaulted term, covenant or condition without thereby becoming liable to
Grantor or any person in possession holding under Grantor.


 


2.05         Receiver.  If an
Event of Default shall have occurred and be continuing, Agent, upon application
to a court of competent jurisdiction, shall be entitled as a matter of strict
right without regard to the occupancy or value of any security for the Secured
Obligations secured hereby or the solvency of any party bound for its payment,
to the appointment of a receiver to take possession of and to operate the
Property (or such portion or portions as Agent may select) and to collect and
apply the rents, issues, profits and revenues thereof.  The receiver shall have all of the rights and
powers permitted under the laws of the State of                                   .  Grantor will pay to Agent upon demand all
reasonable expenses, including receiver’s fees, attorney’s fees, costs and
agent’s compensation, incurred pursuant to the provisions of this Section 2.05,
and all such expenses shall be secured by this Instrument.


 


2.06         Enforcement.


 


(a)           If an Event of Default shall have occurred and be continuing, Agent, at its
option, may effect the foreclosure of this Instrument by selling the Property
(or such portion or portions thereof as the Agent may select) at public auction
at such time and place and upon such terms and conditions as may be required or
permitted by applicable law, after having first advertised the time, place and
terms of sale in the manner and to the extent required by applicable law.  At any foreclosure sale, such portion of the
Property as is offered for sale may, at the Agent’s option, be offered for sale
for one total price, and the proceeds of such sale accounted for in one account
without distinction between the items of security or without assigning to them
any proportion of such proceeds, the Grantor hereby waiving the application of
any doctrine of marshalling.


 


(b)           If an Event of Default shall have occurred and be continuing, Agent may, in
addition to and not in abrogation of the rights covered under subparagraph (a) of
this Section 2.06, either with or without entry or taking possession as herein
provided or otherwise, proceed by a suit or suits in law or in equity or by any
other appropriate proceeding or remedy (i) to enforce payment of the Secured
Obligations or the performance of any term, covenant, condition or agreement of
this Instrument or any other right, and (ii) to pursue any other remedy
available to it, all as Agent shall determine most effectual for such purposes.


 


E-17

















 


2.07         Purchase by Agent. 
Upon any foreclosure sale, Agent, on behalf of the Lenders, may bid for
and purchase the Property and shall be entitled to apply all or any part of the
Secured Obligations secured hereby as a credit to the purchase price.


 


2.08         Application of Proceeds of Sale.  The proceeds received by Agent as a result of
the foreclosure sale of the Property or the exercise of any other rights or
remedies hereunder shall be applied in the manner provided for in Section 12.5
of the Credit Agreement.


 


2.09         Grantor as Tenant Holding Over.  In the event of any such foreclosure sale by
Agent, Grantor shall be deemed a tenant holding over and shall forthwith
deliver possession to the purchaser or purchasers at such sale or be summarily
dispossessed according to provisions of law applicable to tenants holding over.


 


2.10         Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws.  Grantor agrees, to the
full extent permitted by law, that in case of a Default or Event of Default,
neither Grantor nor anyone claiming through or under it shall or will set up,
claim or seek to take advantage of any appraisement, valuation, stay, extension,
homestead, exemption or redemption laws now or hereafter in force, in order to
prevent or hinder the enforcement or foreclosure of this Instrument, or the
absolute sale of the Property, or the final and absolute putting into
possession thereof, immediately after such sale, of the purchasers thereat, and
Grantor, for itself and all who may at any time claim through or under it,
hereby waives to the full extent that it may lawfully so do, the benefit of all
such laws, and any and all right to have the assets comprised in the security
intended to be created hereby marshaled upon any foreclosure of the lien
hereof.


 


2.11         Waiver of Homestead. 
Grantor hereby waives and renounces all homestead and exemption rights
provided for by the Constitution and the laws of the United States and of any
state, in and to the Property as against the collection of the Secured
Obligations, or any part hereof.


 


2.12         Leases; Licensees. 
Agent, at its option, is authorized to foreclose this Instrument subject
to the rights of any tenants and licensees of the Property, and the failure to
make any such tenants or licensees parties to any such foreclosure proceedings
and to foreclose their rights will not be, nor be asserted by Grantor to be a
defense to any proceedings instituted by Agent to collect the sums secured
hereby.


 


2.13         Discontinuance of Proceedings and Restoration of the
Parties.  In case Agent shall have
proceeded to enforce any right, power or remedy under this Instrument by
foreclosure, entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to Agent, then and in every such case Grantor and Agent shall be
restored to their former positions and rights hereunder, and all rights, powers
and remedies of Agent shall continue as if no such proceeding had been taken.


 


2.14         Remedies Cumulative. 
No right, power or remedy conferred upon or reserved to Agent by this
Instrument is intended to be exclusive of any other right, power or remedy, but
each and every such right, power and remedy shall be cumulative and concurrent
and may be 


 


E-18

















 


exercised against Grantor as Agent may select and shall be in addition to
any other right, power and remedy given hereunder or now or hereafter existing
at law or in equity or by statute.


 


2.15         Waiver.


 


(a)           No delay or omission of Agent or of any Lender to exercise any right, power
or remedy accruing upon any Default or Event of Default shall exhaust or impair
any such right, power or remedy or shall be construed to be a waiver of any
such Default or Event of Default, or acquiescence therein; and every right,
power and remedy given by this Instrument to Agent may be exercised from time
to time and as often as may be deemed expedient by Agent.  No consent or waiver, expressed or implied,
by Agent to or of any Default or Event of Default by Grantor in the performance
of the obligations thereof hereunder shall be deemed or construed to be a
consent or waiver to or of any other Default or Event of Default in the
performance of the same or any other obligations of Grantor hereunder.  Failure on the part of Lenders to complain of
any act or failure to act or to declare a Default or Event of Default,
irrespective of how long such failure continues, shall not constitute a waiver
by any Lender of its rights hereunder or impair any rights, powers or remedies
consequent on any Default or Event of Default by Grantor.


 


(b)           If Lenders or Agent on behalf of the Lenders, (i) grant forbearance or an
extension of time for the payment of any sums secured hereby; (ii) take other
or additional security for the payment of any sums secured hereby; (iii) waive
or do not exercise any right granted herein or in the Notes, the Credit
Agreement or any other Loan Document; (iv) release any part of the Property
from the lien of this Instrument or otherwise change any of the terms,
covenants, conditions or agreements of the Notes, this Instrument or any other
Loan Document; (v) consent to the filing of any map, plat or replat affecting
the Property; (vi) consent to the granting of any easement or other right
affecting the Property; or (vii) make or consent to any agreement subordinating
the lien hereof, any such act or omission shall not release, discharge, modify,
change or affect the original liability under the Notes, the Credit Agreement,
the Guaranty, this Instrument or any other obligation of Grantor, or any
subsequent purchaser of the Property or any part thereof, or any maker, co-signer,
endorser, surety or guarantor; nor shall any such act or omission preclude
Agent from exercising any right, power or privilege herein granted or intended
to be granted in the event of any Default then made or of any subsequent
Default; nor, except as otherwise expressly provided in an instrument or
instruments executed by Agent, shall the lien of this Instrument be altered
thereby.  In the event of the sale or
transfer by operation of law or otherwise of all or any part of the Property,
Agent, without notice, is hereby authorized and empowered to deal with any such
vendee or transferee with reference to the Property or the Secured Obligations
secured hereby, or with reference to any of the terms, covenants, conditions or
agreements hereof, as fully and to the same extent as it might deal with the
original parties hereto and without in any way releasing or discharging any
liabilities, obligations or undertakings.


 


2.16         Suits to Protect the Property.  Agent shall have power (a) to institute and
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Property by any acts which may be unlawful or in violation of
this Instrument, (b) to preserve or protect its interest in the Property and in
the rents, issues, profits and revenues arising therefrom, and (c) to restrain
the enforcement of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid, if
the enforcement of 


 


E-19

















 


or compliance with such enactment, rule or order would impair the security
hereunder or be prejudicial to the interest of Lenders.


 


2.17         Agent May File Proofs of Claim.  In the case of any receivership, insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition or other
proceedings affecting Grantor, its creditors or its property, Agent, to the
extent permitted by law, shall be entitled to file such proofs of claim and
other documents as may be necessary or advisable in order to have the claims of
Agent allowed in such proceedings for the entire amount due and payable by
Grantor under this Instrument at the date of the institution of such
proceedings and for any additional amount which may become due and payable by
Grantor hereunder after such date.


 


2.18         WAIVER OF GRANTOR’S RIGHTS.  BY EXECUTION OF THIS INSTRUMENT, GRANTOR
EXPRESSLY: (A) ACKNOWLEDGES THE RIGHT OF AGENT AND/OR LENDERS TO ACCELERATE THE
SECURED OBLIGATIONS AND, TO THE EXTENT PERMITTED BY LAW, THE POWER OF AGENT TO
SELL THE PROPERTY BY NONJUDICIAL FORECLOSURE UPON DEFAULT BY GRANTOR WITHOUT
ANY JUDICIAL HEARING AND WITHOUT ANY NOTICE OTHER THAN SUCH NOTICE (IF ANY) AS
IS SPECIFICALLY REQUIRED TO BE GIVEN UNDER THE PROVISIONS OF THIS INSTRUMENT OR
BY LAW; (B) TO THE FULL EXTENT PERMITTED BY LAW, WAIVES ANY AND ALL RIGHTS
WHICH GRANTOR MAY HAVE UNDER THE CONSTITUTION OF THE UNITED STATES (INCLUDING,
WITHOUT LIMITATION, THE FIFTH AND FOURTEENTH AMENDMENTS THEREOF), THE VARIOUS
PROVISIONS OF THE CONSTITUTIONS FOR THE SEVERAL STATES, OR BY REASON OF ANY
OTHER APPLICABLE LAW, TO NOTICE AND TO JUDICIAL HEARING PRIOR TO THE EXERCISE
BY AGENT OF ANY RIGHT OR REMEDY HEREIN PROVIDED TO AGENT, EXCEPT SUCH NOTICE
(IF ANY) AS IS SPECIFICALLY REQUIRED TO BE PROVIDED IN THIS INSTRUMENT OR BY
APPLICABLE LAW; (C) ACKNOWLEDGES THAT GRANTOR HAS READ THIS INSTRUMENT AND THE
OTHER LOAN DOCUMENTS AND ANY AND ALL QUESTIONS REGARDING THE LEGAL EFFECT OF
THIS INSTRUMENT AND THE OTHER LOAN DOCUMENTS AND THEIR PROVISIONS HAVE BEEN
EXPLAINED FULLY TO GRANTOR AND GRANTOR HAS CONSULTED WITH COUNSEL OF GRANTOR’S
CHOICE PRIOR TO EXECUTING THIS INSTRUMENT; AND (D) ACKNOWLEDGES THAT ALL
WAIVERS OF THE AFORESAID RIGHTS OF GRANTOR HAVE BEEN MADE KNOWINGLY,
INTENTIONALLY AND WILLINGLY BY GRANTOR AS PART OF A BARGAINED FOR LOAN
TRANSACTION.


 


2.19         Claims Against Agent and Lenders.  No action at law or in equity shall be
commenced, or allegation made, or defense raised, by Grantor against Agent or
the Lenders for any claim under or related to this Instrument, the Notes, the
Credit Agreement, the Guaranty or any other instrument, document, transfer,
conveyance, assignment or loan agreement given by Grantor with respect to the
Secured Obligations secured hereby, or related to the conduct of the parties
thereunder, unless written notice of such claim, expressly setting forth the
particulars of the claim alleged by Grantor, shall have been given to Agent
within sixty (60) days from and after the initial awareness of Grantor of the
event, omission or circumstances forming the basis of Grantor for such
claim.  Any  failure by Grantor to timely provide such
written notice to Agent shall constitute a waiver by Grantor of such claim.


 


E-20

















 


2.20         [Intentionally Omitted].


 


2.21         Indemnification; Subrogation; Waiver of Offset.


 


(a)           Grantor shall indemnify, defend and hold Agent and the Lenders harmless
for, from and against any and all liability, obligations, losses, damages,
penalties, claims, actions, suits, costs and expenses (including Agent’s
reasonable attorneys’ fees, together with reasonable appellate counsel fees, if
any) of whatever kind or nature which may be asserted against, imposed on or
incurred by Agent or the Lenders in connection with the Secured Obligations,
this Instrument, the Property, or any part thereof, or the exercise by Agent of
any rights or remedies granted to it under this Instrument; provided, however,
that nothing herein shall be construed to obligate Grantor to indemnify, defend
and hold harmless Agent or the Lenders for, from and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions, suits,
costs and expenses asserted against, imposed on or incurred by Agent or a
Lender by reason of such Person’s willful misconduct or gross negligence if a
judgment is entered against Agent or a Lender by a court of competent
jurisdiction after the expiration of all applicable appeal periods.


 


(b)           If Agent or a Lender is made a party defendant to any litigation or any
claim is threatened or brought against Agent or a Lender concerning the Secured
Obligations, this Instrument, the Property, or any part thereof, or any
interest therein, or the construction, maintenance, operation or occupancy or
use thereof, then Grantor shall indemnify, defend and hold such Person harmless
for, from and against all liability by reason of said litigation or claims,
including reasonable attorneys’ fees (together with reasonable appellate
counsel fees, if any) and expenses incurred by such Person in any such litigation
or claim, whether or not any such litigation or claim is prosecuted to
judgment; provided, however, that nothing in this Section 2.21(b) shall be
construed to obligate Grantor to indemnify, defend and hold harmless Agent or a
Lender for, from and against any and all liabilities or claims imposed on or
incurred by such Person by reason of such Person’s willful misconduct or gross
negligence if a judgment is entered against such Person by a court of competent
jurisdiction after expiration of all applicable appeal periods.  If Agent commences an action against Grantor
to enforce any of the terms hereof or to prosecute any breach by Grantor of any
of the terms hereof or to recover any sum secured hereby, Grantor shall pay to
Agent its reasonable attorneys’ fees (together with reasonable appellate
counsel, fees, if any) and expenses.  The
right to such attorneys’ fees (together with reasonable appellate counsel fees,
if any) and expenses shall be deemed to have accrued on the commencement of
such action, and shall be enforceable whether or not such action is prosecuted
to judgment.  If Grantor breaches any
term of this Instrument, Agent may engage the services of an attorney or
attorneys to protect its rights hereunder, and in the event of such engagement
following any breach by Grantor, Grantor shall pay Agent reasonable attorneys’
fees (together with reasonable appellate counsel fees, if any) and expenses
incurred by Agent, whether or not an action is actually commenced against
Grantor by reason of such breach.  All
references to “attorneys” in this Subsection and elsewhere in this Instrument
shall include without limitation any attorney or law firm engaged by Agent and
Agent’s in-house counsel, and all references to “fees and expenses” in this
Subsection and elsewhere in this Instrument shall include without limitation
any fees of such attorney or law firm and any allocation charges and allocation
costs of Agent’s in-house counsel.


 


E-21

















 


(c)           A waiver of subrogation shall be obtained by Grantor from its insurance
carrier and, consequently, Grantor waives any and all right to claim or recover
against Agent, the Lenders and each of its officers, employees, agents and
representatives, for loss of or damage to Grantor, the Property, Grantor’s
property or the property of others under Grantor’s control from any cause
insured against or required to be insured against by the provisions of this
Instrument.


 


(d)           ALL SUMS PAYABLE BY GRANTOR HEREUNDER SHALL BE PAID WITHOUT NOTICE (EXCEPT
AS MAY OTHERWISE BE PROVIDED HEREIN), DEMAND, COUNTERCLAIM, SETOFF, DEDUCTION
OR DEFENSE AND WITHOUT ABATEMENT, SUSPENSION, DEFERMENT, DIMINUTION OR
REDUCTION, AND THE SECURED OBLIGATIONS AND LIABILITIES OF GRANTOR HEREUNDER
SHALL IN NO WAY BE RELEASED, DISCHARGED OR OTHERWISE AFFECTED BY REASON OF: (I)
ANY DAMAGE TO OR DESTRUCTION OF OR ANY CONDEMNATION OR SIMILAR TAKING OF THE
PROPERTY OR ANY PART THEREOF; (II) ANY RESTRICTION OR PREVENTION OF OR
INTERFERENCE WITH ANY USE OF THE PROPERTY OR ANY PART THEREOF; (III) ANY TITLE
DEFECT OR ENCUMBRANCE OR ANY EVICTION FROM THE LAND OR THE IMPROVEMENTS ON THE
LAND OR ANY PART THEREOF BY TITLE PARAMOUNT OR OTHERWISE; (IV) ANY BANKRUPTCY,
INSOLVENCY, REORGANIZATION, COMPOSITION, ADJUSTMENT, DISSOLUTION, LIQUIDATION,
OR OTHER LIKE PROCEEDING RELATING TO AGENT OR THE LENDERS, OR ANY ACTION TAKEN
WITH RESPECT TO THIS INSTRUMENT BY AGENT OR BY ANY RECEIVER OF AGENT, OR BY ANY
COURT, IN SUCH PROCEEDING; (V) ANY CLAIM WHICH GRANTOR HAS, OR MIGHT HAVE, AGAINST
AGENT OR THE LENDERS; (VI) ANY DEFAULT OR FAILURE ON THE PART OF AGENT OR THE
LENDERS TO PERFORM OR COMPLY WITH ANY OF THE TERMS HEREOF OR OF ANY OTHER
AGREEMENT WITH GRANTOR; OR (VII) ANY OTHER OCCURRENCE WHATSOEVER, WHETHER
SIMILAR OR DISSIMILAR TO THE FOREGOING, WHETHER OR NOT GRANTOR SHALL HAVE
NOTICE OR KNOWLEDGE OF ANY OF THE FOREGOING. 
GRANTOR WAIVES ALL RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE OR
OTHERWISE TO ANY ABATEMENT, SUSPENSION, DEFERMENT, DIMINUTION, OR REDUCTION OF
ANY SUM SECURED HEREBY AND PAYABLE BY GRANTOR.


 


2.22         Revolving Credit/Future Advance.  This Instrument secures Secured Obligations
which may provide for a variable rate of interest as well as revolving credit
advances and other future advances, whether such advances are obligatory or
otherwise.  Advances under the Notes are
subject to the terms and provisions of the Credit Agreement and the other
Security Documents. Grantor acknowledges that the Secured Obligations may
increase or decrease from time to time and that if the outstanding balance of
the Secured Obligations is ever repaid to zero the security title and security
interest created by this Instrument shall not be deemed released or
extinguished by operation of law or implied intent of the parties.  This Instrument shall remain in full force
and effect as to any further advances under the Credit Agreement made after any
such zero balance until the Secured Obligations are paid in full, all
agreements to make further advances or issue letters of credit have been terminated
and this Instrument has been canceled of record.  Grantor waives the operation of any
applicable statutes, case law or regulation having a contrary effect.


 


E-22

















 


2.23         Rejection of Leases. 
In the event a tenant under any Lease should be the subject of any
proceeding under the Federal Bankruptcy Act (Title 11 U.S.C.) or any other
federal, state, or local statute which provides for the possible termination or
rejection of the Leases assigned hereby, the Grantor covenants and agrees that
if any Lease that covers 25,000 square feet or more of the Property (a “Major
Lease”) is so rejected, no settlement for damages shall be made without prior
written consent of the Agent, and any check in payment of damages in respect of
such Major Lease for rejection of any Major Lease will be made payable both to
the Grantor and Agent.  The Grantor
hereby assigns any such payment to the Agent and further covenants and agrees
that upon the request of the Agent, it will duly endorse to the order of the
Agent any check, the proceeds of which will be applied to whatever portion of
the indebtedness secured hereby and by the Security Documents which the Agent
may elect.


 


2.24         Covenant to Perform under Leases.  Grantor covenants with Agent that Grantor (a)
shall observe and perform all the obligations imposed upon the lessor under the
Leases and, subject to Section 7.13 of the Credit Agreement, shall not do or
permit to be done anything to impair the value of the Leases as security for
the Secured Obligations; (b) shall use commercially reasonable efforts to
enforce the performance and observance of the obligations of the other parties
to the Leases to be performed thereunder consistent with the provisions of the
Credit Agreement; (c) will appear in and defend any action arising out of, or
in any manner connected with, any of the Leases, or the obligations or
liabilities of Grantor as the landlord, lessor or licensor thereof, or any
tenant, lessee, licensee or any guarantor thereunder; (d) shall not collect any
Revenues more than one (1) month in advance; (e) shall not execute any other
assignment of lessor’s interest in the Leases or the Revenues; (f) shall
execute and deliver at the request of Agent all such further assurances,
confirmations or assignments in connection with the Property as Agent shall
from time to time reasonably require; and (g) shall deliver to Agent executed
copies of all Leases required to be delivered to Agent pursuant to the terms of
the Credit Agreement.


 


ARTICLE 3


 


3.01         Successors and Assigns. 
This Instrument shall inure to the benefit of and be binding upon
Grantor and Agent and their respective heirs, executors, legal representatives,
successors and assigns.  Whenever a
reference is made in this Instrument to Grantor or Agent such reference shall
be deemed to include a reference to the heirs, executors, legal
representatives, successors and assigns of Grantor or Agent.


 


3.02         Terminology.  All
personal pronouns used in this Instrument whether used in the masculine,
feminine or neuter gender, shall include all other genders; the singular shall
include the plural, and vice versa. 
Titles and Articles are for convenience only and neither limit nor
amplify the provisions of this Instrument itself, and all references herein to
Articles, Sections or subsections thereof, shall refer to the corresponding
Articles, Sections or subsections thereof, of this Instrument unless specific
reference is made to such Articles, Sections or subsections thereof of another
document or instrument.


 


E-23
















 


3.03                           Severability.  If any provision of this Instrument or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Instrument and the
application of such provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.


 


3.04                           Notices.  Except as otherwise provided herein, any
notice or other communication required hereunder shall be in writing, and shall
be deemed to have been validly served, given or delivered if given and
delivered as provided in the Guaranty if given to Grantor or as provided in the
Credit Agreement if given to Agent.


 


3.05                           Conflict with Credit
Agreement Provisions.  Grantor hereby
acknowledges and agrees that, in the event of any conflict between the terms
hereof and the terms of the Credit Agreement, the terms of the Credit Agreement
shall control.


 


3.06                           Assignment.  This Instrument is assignable by Agent, and
any assignment hereof by Agent shall operate to vest in the assignee all rights
and powers herein conferred upon and granted to Agent.


 


3.07                           Time of the Essence.  Time is of the essence with respect to each
and every covenant, agreement and obligation of Grantor under this Instrument,
and any and all other Loan Documents to which Grantor is a party.


 


3.08                           Grantor.  Unless the context clearly indicates
otherwise, as used in this Instrument, “Grantor” means the grantors named in
recitals hereof or any of them.  The
obligations of Grantor hereunder shall be joint and several.  If any Grantor, or any signatory who signs on
behalf of any Grantor, is a corporation, partnership or other legal entity,
Grantor represents and warrants to Agent that this instrument is executed,
acknowledged and delivered by Grantor’s duly authorized representatives.


 


3.09                           No Waiver of
Remedies.  Agent may resort to any
remedies and the security given by the Guaranty, this Instrument or the other
Loan Documents in whole or in part, and in such portions and in such order as determined
by Agent’s sole discretion.  No such
action shall in any way be considered a waiver of any rights, benefits or
remedies evidenced or provided by the Guaranty, this Instrument or any of the
other Loan Documents.  The failure of
Agent to exercise any right, remedy or option provided in the Guaranty, this
Instrument or any of the other Loan Documents shall not be deemed a waiver of
such right, remedy or option or of any covenant or obligation secured by the
Guaranty, this Instrument or the other Loan Documents.  No acceptance by Agent of any payment after
the occurrence of any Event of Default and no payment by Agent of any
obligation for which Grantor is liable hereunder shall be deemed to waive or
cure any Event of Default with respect to Grantor’s liability to pay such
obligation.  No sale of all or any
portion of the Property, no forbearance on the part of Agent, and no extension
of time for the payment of the whole or any portion of the Secured Obligations
or any other indulgence given by Agent to Grantor, shall operate to release or
in any manner affect the interest of Agent or any Lender in the remaining
Property or the liability of Grantor to pay the Secured Obligations or the
liability of Grantor under the Guaranty. 
No waiver by Agent shall be effective unless it is in writing and then
only to the extent specifically stated. 
All costs and expenses of Agent and Lenders in exercising their rights
and remedies under this Instrument 


 


E-24

















 


(including reasonable attorneys’ fees and disbursements to the extent
permitted by law), shall be paid by Grantor immediately upon notice from Agent,
and such costs and expenses shall constitute a portion of the Secured
Obligations and shall be secured by this Instrument.  The interests and rights of Agent or any
Lender under the Guaranty, this Instrument or in any of the other Loan
Documents shall not be impaired by any indulgence, including (i) any renewal,
extension or modification which Agent or any Lender may grant with respect to
any of the Secured Obligations, (ii) any surrender, compromise, release,
renewal, extension, exchange or substitution which Agent or any Lender may
grant with respect to the Property or any portion thereof; or (iii) any release
or indulgence granted to any maker, endorser, guarantor or surety of any of the
Secured Obligations.


 


3.10                           Place of Payment; Forum;
Waiver of Jury Trial.  All Secured
Obligations which may be owing hereunder at any time by Borrower or Grantor
shall be payable at the place designated in the Credit Agreement (or if no such
designation is made, at the address of Agent indicated at the end of this
Instrument).  Grantor hereby irrevocably
submits generally and unconditionally for itself and in respect of its property
to the non-exclusive jurisdiction of any state court, or any United States
federal court, sitting in the county in which the Secured Obligations are
payable, and to the non-exclusive jurisdiction of any state court or any United
States federal court sitting in the state in which any of the Property is
located, over any suit, action or proceeding arising out of or relating to this
Instrument or the Secured Obligations. 
Grantor hereby irrevocably waives, to the fullest extent permitted by
law, any objection that Grantor may now or hereafter have to the laying of
venue in any such court and any claim that any such court is an inconvenient
forum.  Grantor hereby agrees and
consents that, in addition to any methods of service of process provided for
under applicable law, all service of process in any such suit, action or
proceeding may be made by certified or registered mail, return receipt
requested, directed to Grantor at its address stated in the first paragraph of
this Instrument, or at a subsequent address of Grantor of which Agent received
actual notice from Grantor in accordance with the Credit Agreement, and service
so made shall be completed five (5) days after the same shall have been so
mailed.  Nothing herein shall affect the
right of Agent to serve process in any manner permitted by law or limit the
right of Agent to bring proceedings against Grantor in any other court or
jurisdiction.  TO THE FULLEST EXTENT
PERMITTED BY LAW, GRANTOR WAIVES THE RIGHT TO TRIAL BY JURY IN CONNECTION WITH
ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS
INSTRUMENT OR ANY OTHER LOAN DOCUMENT.


 


ARTICLE 4 — STATE SPECIFIC PROVISIONS


 


4.01                           Principles of
Construction.  In the event of any
inconsistencies between the terms and conditions of this Article 4 and the
terms and conditions of this Instrument, the terms and conditions of this Article
4 shall control and be binding.


 


4.02                           Insert Other
State-Specific Provisions


 


ARTICLE 5- COMPLIANCE WITH CREDIT AGREEMENT


 


5.01                           Representations and
Warranties.  In addition to the
representations and warranties made by Grantor herein, Grantor hereby makes to
the Agent and the Lenders the representations 


 


E-25

















 


and warranties set forth in the Credit Agreement applicable to it, as if it
were a party thereto, including, without limitation, those contained in the
following sections:  Sections 6.1(c) and
(d), 6.2, 6.6, 6.7, 6.8, 6.9, 6.10, 6.12, 6.14, 6.15, 6.16, 6.17, 6.20, 6.23,
6.25, 6.26, 6.27, 6.28, 6.29, and 6.30.


 


5.02                           Covenants and
Agreements.  The Grantor covenants and
agrees that so long as any Loan or Note is outstanding that Grantor shall
comply with all of the covenants and agreements set forth in the Credit
Agreement applicable to it, as if it were a party thereto, including, without
limitation, those contained in the following sections:  Sections 7.2, 7.3, 7.4(e)(i) and (iii),
7.5(a), (b), (c), and (d), 7.6, 7.7 (to the extent required by Section 1.05
hereof), 7.8, 7.9, 7.10, 7.11, 7.12, 7.13, 7.14, 7.16, 7.19, 8.1, 8.2, 8.3,
8.4, 8.5, 8.6, 8.8, 8.10, 8.12, 8.13, 8.14, 18.9, 21 and 25.  For purposes of Sections 7.5(a), (b), (c) and
(d) of the Credit Agreement, notice given to Agent by Borrower shall satisfy
any requirement that Grantor deliver notice under the relevant section.


 


[SIGNATURES ON NEXT
PAGE]


 


E-26

















 


IN WITNESS WHEREOF, Grantor has executed this Instrument
as of the day and year first above written.


 


 


	
  Signed, Sealed and
  Delivered in the

  	
   

  	
  GRANTOR:

  
	
  presence of:

  	
   

  	
   

  
	
   

  	
   

  	
  ,                  a

  
	
   

  	
   

  	
   

  	
   

  
	
  Witness

  	
   

  	
   

  	
   

  
	
  Print Name:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
   

  	
   

  	
  Title: 

  	
  Executive Vice President
  - Corporate Development & 

  
	
  Witness

  	
   

  	
   

  	
   

  	
  Legal, Authorized
  Signatory

  
	
  Print Name:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  [SEAL]

  



 


E-27

















 


ACKNOWLEDGMENT


 


	
  THE STATE OF                                                                                

  	
  §

  
	
   

  	
  §

  
	
  COUNTY OF                                                                                     

  	
  §

  



 


This instrument was acknowledged before me on                           ,             , by Gerald J. Reihsen, III, as
Executive Vice President - Corporate Development & Legal of                                                               ,
a                                                             , on
behalf of said limited partnership.


 


 


	
  (SEAL)

  	
   

  	
   

  
	
   

  	
   

  	
  Notary Public in and for

  
	
   

  	
   

  	
  the State of

  
	
   

  	
   

  	
   

  
	
  My Commission Expires:

  	
   

  	
  Print Name of Notary:

  



 


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EXHIBIT “A” TO FORM OF MORTGAGE


 


LEGAL DESCRIPTION


 


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EXHIBIT “B” TO FORM OF MORTGAGE


 


PERMITTED ENCUMBRANCES


 


Permitted encumbrances are such matters as are shown on
Schedule [B], Part [I] to the pro forma Title Insurance Commitment No.                          dated                       , last revised                            issued by                                                to the Agent in connection with this
Instrument.


 


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EXHIBIT “C” TO FORM OF MORTGAGE


 


Schedule 1

(Description of “Debtor” and “Secured Party”)


 


A.                                  Debtor:


 


1.                                                                                                       
, a                       organized under the laws of the State of                               . 
Debtor has been using or operating under said name and identity or
corporate structure without change since                                                   .


 


Names and
Tradenames used within last five years:                                        .


 


Location of all
chief executive offices over last five years:


 


[15601 Dallas Parkway, Suite 600, Addison, 
Texas 75001]


 


Organizational
Number:


 


Federal Tax
Identification Number:


 


B.                                    Secured Party:


 


KEYBANK NATIONAL ASSOCIATION, a national banking association, as Agent.


 


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Schedule 2


 


(Notice Mailing Addresses of “Debtor” and “Secured Party”)


 


A.                                  The mailing address of Debtor is:


 


c/o Behringer Harvard Operating Partnership I LP


15601 Dallas Parkway


Suite 600


Addison, TX 75001


Attn:  Gerald J. Reihsen, III, Esq.


 


B.                                    The mailing address of Secured Party is:


 


KeyBank National Association

1200 Abernathy Road, N.E.

Suite 1550

Atlanta, Georgia  30328

Attn:  Kevin Murray


 

















 


EXHIBIT F


 


FORM OF DEED OF TRUST


 


[See Attached]


 
















 


NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL
PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION
FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR
SOCIAL SECURITY NUMBER OR YOUR DRIVER’S LICENSE NUMBER.


 


                                                                                ,


 


                                                  ,


as Grantor


 


to


 


LANDAMERICA PARTNERS TITLE COMPANY, a
Texas corporation


as Trustee


 


for the benefit of


 


KEYBANK NATIONAL ASSOCIATION,


a national banking
association,


as Agent


 


DEED OF TRUST, SECURITY AGREEMENT AND
ASSIGNMENT OF LEASES AND 


RENTS


 


Dated:                      As
of                                  


 


 


Property
Address:                                                       


 


Location:                                                                     


 


WHEN
RECORDED, RETURN TO:


 


McKenna Long &
Aldridge LLP


Suite 5300


303 Peachtree
Street, N.E.


Atlanta,
Georgia  30308


 


Attention:  William F. Timmons, Esq.


 


ATTENTION:  COUNTY CLERK — THIS INSTRUMENT COVERS GOODS
THAT ARE OR ARE TO BECOME FIXTURES ON THE REAL PROPERTY DESCRIBED HEREIN AND IS
TO BE FILED FOR RECORD IN THE RECORDS WHERE DEEDS OF TRUST ON REAL ESTATE ARE
RECORDED.  ADDITIONALLY, THIS INSTRUMENT
SHOULD BE APPROPRIATELY INDEXED, NOT ONLY AS A DEED OF TRUST, BUT ALSO AS A


 


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FINANCING STATEMENT
COVERING GOODS THAT ARE OR ARE TO BECOME FIXTURES ON THE REAL PROPERTY
DESCRIBED HEREIN.  THE MAILING ADDRESSES
OF GRANTOR (DEBTOR) AND AGENT (SECURED PARTY) ARE SET FORTH IN THIS
INSTRUMENT.  THIS DOCUMENT SERVES AS A
FIXTURE FILING UNDER SECTION 9.502 OF THE TEXAS BUSINESS AND COMMERCE
CODE.


 


Grantor’s Organizational
Identification Number
                                    .


 


THIS  MORTGAGE AND SECURITY AGREEMENT (this “Instrument”)
is made and entered into as of this 9th day of June, 2009, by and among                                                                             ,
a
                                                
(“Grantor”), having a mailing address of c/o Behringer Harvard Operating
Partnership I LP, 15601 Dallas Parkway, Suite 600, Addison, Texas 75001,                                                 ,
a
                                                      ,
as trustee (“Trustee”), having a business address of
                                                                              
and KEYBANK NATIONAL ASSOCIATION,
a national banking association (“KeyBank”), having a mailing address of 127
Public Square, Cleveland, Ohio 44114-1306, Attn: Real Estate Capital Services,
with a copy to KeyBank National Association, 1200 Abernathy Road, N.E., Suite 1550,
Atlanta, Georgia  30328, Attn: Kevin
Murray, as Agent for itself and each other lender (collectively, the “Lenders”)
which is or may hereafter become a party to that certain Credit Agreement, dated as of December 11, 2007, by
and among Behringer Harvard Operating Partnership I LP, a Texas limited
partnership (“Borrower”), KeyBank, as Agent and the Lenders, as amended by that
certain First Amendment to Credit Agreement and Other Loan Documents dated as
of even date herewith (as the same may be further varied, amended, restated,
renewed, consolidated, extended or otherwise supplemented from time to time,
the “Credit Agreement”) (KeyBank, in its capacity as Agent, is hereinafter
referred to as “Agent”).  Capitalized
terms used herein that are not otherwise defined herein shall have the meanings
set forth in the Credit Agreement.


 


W I T N E S S E T H:


 


FOR AND
IN CONSIDERATION of the sum of Ten and No/100 Dollars
($10.00) and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and in order to secure the indebtedness and other
obligations of Grantor and Borrower hereinafter set forth, Grantor does hereby
GRANT, BARGAIN, SELL, CONVEY, ASSIGN, TRANSFER and SET OVER UNTO Trustee, with
GENERAL WARRANTY in trust WITH POWER OF SALE, for the ratable benefit of
Lenders, and their successors and assigns, all of the following described land
and interests in land, estates, easements, rights, improvements, property,
fixtures, equipment, furniture, furnishings, appliances, general intangibles,
and appurtenances, whether now or hereafter existing or acquired (collectively,
the “Property”; provided, however, the Property shall not include personal
property of tenants under Leases or personal property of subtenants under
subleases to which neither the Borrower nor Grantor is the tenant or subtenant,
as applicable, in items that would otherwise constitute Property hereunder):


 


All those tracts
or parcels of land and easements more particularly described in Exhibit “A”
attached hereto and by this reference made a part hereof (the “Land”).


 


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All present and
future buildings, structures, parking areas, annexations and improvements of
every nature whatsoever now or hereafter situated on the Land (hereinafter
referred to as the “Improvements”) and all materials intended for construction,
reconstruction, alteration and repairs of the Improvements now or hereafter
erected, all of which materials shall be deemed to be included within the
Improvements immediately upon the delivery thereof to the Land, and all gas and
electric fixtures, radiators, heaters, engines and machinery, boilers, ranges,
elevators and motors, plumbing and heating fixtures, incinerating, sprinkling,
and waste removal systems, carpeting and other floor coverings, fire
extinguishers and any other safety equipment required by governmental
regulation or law, washers, dryers, water heaters, mirrors, mantels, air
conditioning apparatus, refrigerating plants, refrigerators, cooking apparatus
and appurtenances, storm windows and doors, window and door screens, awnings
and storm sashes, which are or shall be owned by Grantor and attached to said
Improvements and all other furnishings, furniture, glassware, tableware,
uniforms, linen, drapes and curtains and related hardware and mounting devices,
wall to wall carpeting, radios, lamps, telephone systems, televisions and
television systems, computer systems, guest ledgers, vehicles, fixtures,
machinery, equipment, apparatus, appliances, books and records, chattels,
inventory, accounts, farm products, consumer goods, general intangibles and
personal property of every kind and nature whatsoever now or hereafter owned by
Grantor and located in, on or about, or used or intended to be used with or in
connection with the use, operation or enjoyment of the Property, including all
extensions, additions, improvements, betterments, after-acquired property,
renewals, replacements and substitutions, or proceeds from a permitted sale of
any of the foregoing, together with the benefit of any deposits or payments now
or hereafter made by Grantor or on behalf of Grantor, all of which are hereby
declared and shall be deemed to be fixtures and accessions to the Land and a
part of the Property as between the parties hereto and all persons claiming by,
through or under them, and which shall be deemed to be a portion of the
security for the indebtedness herein described and to be secured by this
Instrument.


 


All easements,
access rights, rights-of-way, strips and gores of land, vaults, streets, ways,
alleys, passages, sewer rights, waters, water courses, water rights and
powers,  irrigation systems (including,
without limitation, underground wiring, pipes, pumps and sprinkler heads),
minerals, flowers, plants, shrubs, crops, trees, timber, fences, signs,
bridges, fountains, monuments and other emblements now or hereafter located on
the Land or under or above the same or any part or parcel thereof, and all
estates, rights, titles, interests, privileges, liberties, servitudes,
licenses, tenements, hereditaments and appurtenances, reversion and reversions,
remainder and remainders, whatsoever, in any way belonging, relating or
appertaining to the Land or any part thereof, or which hereafter shall in any
way belong, relate or be appurtenant thereto, whether now owned or hereafter
acquired by Grantor.


 


All leases,
tenancies, occupancies and licenses, whether oral or written (collectively, the
“Leases”), and all income, rents, issues, profits, room rentals, transient or
guest payments, fees, charges or other payments for the use or occupancy of
rooms or other facilities, and revenues of the Property from time to time
accruing (including, without limitation, all payments under Leases, all
guarantees of the foregoing or letters of credit relating to the foregoing,
lease termination payments, proceeds of insurance, condemnation payments,
tenant security, damage or other deposits whether held by Grantor or in a trust
account, escrow funds, fees, charges, rents, license fees, accounts, royalties,
security, damage or other deposits from time to time accruing, all payments
under working interests, production payments, royalties, overriding


 


4

















 


royalties, operating
interests, participating interest and other such entitlements, and all the
estate, right, title, interest, property, possession, claim and demand
whatsoever at law, as well as in equity, of Grantor of, in and to the same
(collectively, the “Revenues”); reserving only the right to Grantor to collect
the same (other than, subject to Section 7.7 of the Credit Agreement and Section 17
of the Assignment of Leases and Rents, lease termination payments, insurance
proceeds and condemnation payments) so long as no Event of Default has occurred
and is continuing.


 


All insurance
policies, building service, building maintenance, construction, development,
management, indemnity, and other similar agreements and contracts and
subcontracts, written or oral, express or implied, now or hereafter entered
into, arising or in any manner related to the purchase, construction, design,
improvement, use, operation, ownership, occupation, enjoyment, sale, conversion
or other disposition (voluntary or involuntary) of the Property, or the
buildings and improvements now or hereafter located thereon, or any other
interest in the Property, or any combination thereof, franchise agreements,
property management agreements, cable television agreements, contracts for the
purchase of supplies, telephone service agreements, yellow pages or other
advertising agreements, sales contracts, construction contracts, architects
agreements, general contract agreements, design agreements, engineering
agreements, technical service agreements, sewer and water and other utility
agreements, service contracts, agreements relating to the collection of
receivables or use of customer lists, all bookings and reservations for space
or facilities within the Property, all purchase options, option agreements,
rights of first refusal, contract deposits, earnest money deposits, prepaid
items and payments due and to become due thereunder, and further including all
payment and performance bonds, labor, deposits, assurances, construction
guaranties, guaranties, warranties, indemnities and other undertakings,
architectural plans and specifications, drawings, surveys, soil reports, engineering
reports, inspection reports, environmental audits and other technical
descriptions and reports relating to the Property, renderings and models,
permits, consents, approvals, licenses, variances, agreements, contracts,
building permits, purchase orders and equipment leases, personal property
leases, and all causes of action relating thereto.


 


All deposit
accounts, instruments, accounts receivable, documents, causes of action,
claims, names by which the Property or the improvements thereon may be operated
or known, all rights to carry on business under such names, all telephone
numbers or listings, all rights, interest and privileges of which Grantor may
have in any capacity under any covenants, restrictions or declarations now or
hereafter relating to the Property or the Improvements, and all notes or
chattel paper now or hereafter arising from or by virtue of any transactions
relating to the Property or the Improvements located thereon and all customer
lists, other lists, and business information relating in any way to the
Property or the Improvements or the use thereof, whether now owned or hereafter
acquired;


 


All assets related
to the ownership or operation of the Property or the Improvements now or
hereafter erected thereon, including, without limitation, accounts (including,
without limitation, health-care-insurance receivables), chattel paper (whether
tangible or electronic), deposit accounts, documents, general intangibles
(including, without limitation, payment intangibles, and all current and after
acquired copyrights, copyright rights, advertising materials, web sites, and
web pages, software and software licenses, trademarks and service marks,
trademark rights, trademark applications, service mark rights, service mark
applications, trade


 


5

















 


dress rights, company
names, logos, and all domain names, owned or used in connection with the
Grantor’s business, and in each case all goodwill associated therewith), goods
(including, without limitation, inventory, equipment, fixtures and accessions),
instruments (including, without limitation, promissory notes), investment
property, letter-of-credit rights, letters of credit, money, supporting
obligations, as-extracted collateral, timber to be cut and all proceeds and
products of anything described or referred to above in this Subsection (g), in
each case as such terms are defined under the Uniform Commercial Code as in
effect in the applicable jurisdiction.


 


All cash funds,
deposit accounts and other rights and evidence of rights to cash, now or
hereafter created or held by Trustee or Agent pursuant to this Instrument, the
Credit Agreement or any other of the Loan Documents.


 


All proceeds,
products, substitutions and accessions of the foregoing of every type.


 


TO HAVE AND TO HOLD the
Property and all parts, rights, members and appurtenances thereof, to the use,
benefit and behoof of Trustee for the ratable benefit of Agent and the Lenders
and their respective successors and assigns, IN FEE SIMPLE forever; and Grantor
covenants that Grantor is lawfully seized and possessed of the Property as
aforesaid, and has good right to convey the same, that the same is unencumbered
except for those matters expressly set forth in Exhibit “B” attached
hereto and by this reference made a part hereof (the “Permitted Encumbrances”),
and that Grantor does warrant and will forever defend the title thereto against
the claims of all persons whomsoever, except as to those matters set forth in
said Exhibit “B” attached hereto or otherwise specifically approved by
Agent in writing after the date hereof.


 


IN TRUST NEVERTHELESS to
secure the following described obligations (collectively, the “Secured
Obligations”):


 


The debt evidenced
by (i) those certain Revolving Credit Notes made by Borrower in the
aggregate principal amount of One Hundred Ninety-Three Million and No/100
Dollars ($193,000,000.00) to the order of Lenders, and (ii) that certain
Swing Loan Note made by Borrower in the principal amount of Twenty-Five Million
and No/100 Dollars ($25,000,000.00) to the order of KeyBank, each of which has
been issued pursuant to the Credit Agreement and each of which is due and
payable in full on or before December 11, 2010, unless extended as
provided in the Credit Agreement; and (ii) each other note as may be
issued under the Credit Agreement, each as originally executed, or if varied,
extended, supplemented, consolidated, amended, replaced, renewed, modified or
restated from time to time as so varied, extended, supplemented, consolidated,
amended, replaced, renewed, modified or restated (collectively, the “Notes”);


 


The payment,
performance and discharge of each and every obligation, covenant and agreement
of Grantor contained herein or of Grantor contained in that certain
Unconditional Guaranty of Payment and Performance by Grantor and others in
favor of KeyBank, as Agent for itself and each other Lender, dated as of December 11,
2007, as amended by that certain First Amendment to Credit Agreement and Other
Loan Documents dated as of even date herewith (as amended, restated, modified,
renewed, supplemented or extended from time to time, the


 


6

















 


“Guaranty”), of Borrower
contained in the Credit Agreement, and of Grantor and Borrower in the other
Loan Documents, including, without limitation, the obligation of Borrower to
reimburse Issuing Lender for any draws under the Letters of Credit, and in the
other Loan Documents;


 


Any and all
additional advances made by Agent or any Lender to protect or preserve the
Property or the lien and security title hereof in and to the Property, or for
taxes, assessments or insurance premiums as hereinafter provided (whether or
not Grantor is the owner of the Property at the time of such advances);


 


Any and all other
indebtedness now or hereafter owing by Borrower to Agent or any Lender pursuant
to the terms of the Credit Agreement, whether now existing or hereafter arising
or incurred, however evidenced or incurred, whether express or implied, direct
or indirect, absolute or contingent, due or to become due, including, without
limitation, all principal, interest, fees, expenses, yield maintenance amounts
and indemnification amounts, and all renewals, modifications, consolidations,
replacements and extensions thereof; and


 


All costs and
expenses incurred by the Trustee, Agent and the Lenders in connection with the
enforcement and collection of the Secured Obligations, including, without
limitation, all attorneys’ fees and disbursements, and all other such costs and
expenses described in and incurred pursuant to the Notes, the Credit Agreement,
the Guaranty, this Instrument, and the other Loan Documents (collectively, the “Enforcement
Costs”).


 


Subject to Section 2.22
hereof, should the Secured Obligations secured by this Instrument be paid and
performed according to the terms and effect thereof when the same shall become
due and payable, and should Grantor perform all covenants contained herein in a
timely manner and the obligation of the Lenders to make Loans and issue Letters
of Credit under the Credit Agreement has terminated (other than surviving
indemnity obligations as to which no claim is then pending), then this
Instrument shall be released.


 


Grantor hereby further
covenants and agrees with Trustee and Agent as follows:


 


ARTICLE 6


 


6.01                           Payment
of Secured Obligations.  Grantor will pay
and perform or cause to be paid and performed the Secured Obligations according
to the tenor thereof and all other sums now or hereafter secured hereby as the
same shall become due.


 


6.02                           Funds
for Impositions.  After the occurrence
and during the continuance of an Event of Default, Grantor shall pay to Agent,
subject to Agent’s option under Section 1.03 hereof, on the days that
monthly installments of interest are payable under the Notes, until the Notes
are paid in full, a sum (hereinafter referred to as the “Funds”) reasonably
estimated by Agent to provide an amount necessary for payment of the following
items in full fifteen (15) days prior to when such items become due
(hereinafter collectively referred to as the “Impositions”): (a) the
yearly real estate taxes, ad valorem taxes, personal property taxes,
assessments and betterments, and (b) the yearly premium installments for
the insurance covering the Property and required by the Credit Agreement.  The Impositions shall be reasonably


 


7

















 


estimated initially and
from time to time by Agent on the basis of assessments and bills and estimates
thereof.  The Funds shall be held by
Agent in a separate interest bearing account free of any liens or claims on the
part of other creditors of Grantor and as part of the security for the Secured
Obligations.  Grantor shall pay all
Impositions prior to delinquency as required by Section 1.03 hereof.  In the event Agent elects to reserve Funds as
permitted under this Section 1.02, within ten (10) days after Grantor
furnishes Agent with reasonably satisfactory evidence that Grantor has paid one
or more of the items comprising the Impositions, Agent shall reimburse Grantor
(or the one paying the Impositions) therefor to the extent of the Funds (plus
accrued interest) then held by Agent. 
Alternatively, Agent shall apply the Funds to pay the Impositions with
respect to which the Funds were paid to the extent of the Funds then held by
Agent and provided Grantor has delivered to Agent the assessments or bills
therefor.  Grantor shall be permitted to
pay any Imposition early in order to take advantage of any available discounts.  Agent shall make no charge for so holding and
applying the Funds or for verifying and compiling said assessments and
bills.  The Funds are pledged as
additional security for the Secured Obligations, and may be applied, at Agent’s
option and without notice to Grantor, to the payment of the Secured Obligations
upon the occurrence of any Event of Default. 
If at any time the amount of the Funds held by Agent shall be less than
the amount reasonably deemed necessary by Agent to pay Impositions as such
become due, Grantor shall pay to Agent any amount necessary to make up the
deficiency within fifteen (15) business days after notice from Agent to Grantor
requesting payment thereof.  Upon payment
and performance in full of the Secured Obligations and termination of the
obligation of the Lenders to make Loans and of Issuing Lender to issue Letters
of Credit, Agent shall promptly refund to Grantor any Funds then held by Agent.


 


6.03                           Impositions,
Liens and Charges.  Grantor shall pay all
Impositions and other charges, if any, attributable to the Property prior to
delinquency, and at Agent’s option during the continuance of an Event of
Default, Grantor shall pay in the manner hereafter provided under this Section 1.03.  Grantor shall, during continuance of an Event
of Default, furnish to Agent all bills and notices of amounts due under Section 1.03
as soon as received, and in the event Grantor shall make payment directly,
Grantor shall, as and when available, furnish to Agent receipts evidencing such
payments prior to the dates on which such payments are delinquent, subject to
Grantor’s right to contest taxes, assessments and other governmental charges as
provided in the Credit Agreement. 
Grantor shall promptly discharge (by bonding, payment or otherwise) any
lien filed against the Property or Grantor (including federal tax liens) and
will keep and maintain the Property free from the claims of all persons
supplying labor or materials to the Property, subject to Grantor’s right to
contest the same as provided in the Credit Agreement.  Grantor shall not claim or be entitled to any
credit against the taxable value of the Property by reason of this Instrument,
or any deduction in or credit on the Secured Obligations by reason of
Impositions paid.


 


6.04                           Taxes,
Liens and Other Charges.


 


(a)                                  In
the event of the passage of any state, federal, municipal or other governmental
law, order, rule or regulation, subsequent to the date hereof, in any
manner changing or modifying the laws now in force governing the taxation of
debts secured by deeds of trust or the manner of collecting taxes so as to
adversely affect Agent or the Lenders, Grantor will promptly pay any such
tax.  If Grantor fails to make such
payment promptly, or if, in the


 


8

















 


opinion of Agent, any
such state, federal, municipal, or other governmental law, order, rule or
regulation prohibits Grantor from making such payment or would penalize Agent
or the Lenders if Grantor makes such payment or if, in the opinion of Agent,
the making of such payment could reasonably result in the imposition of
interest beyond the maximum amount permitted by applicable law, then (i) the
Total Commitment shall be reduced by 125% of the Allocated Loan Amount
associated with the Property, (ii) notwithstanding the terms of Section 5.4(e) of
the Credit Agreement, within sixty (60) days of demand, the Borrower shall pay
to Agent for the pro rata accounts of the Lenders, an amount necessary such
that the amount of the outstanding Loans and Letter of Credit Liabilities do
not exceed the Total Commitment or the Borrowing Base Availability, and (iii) the
Property shall no longer be included in the Borrowing Base.


 


(b)                                 Grantor
will pay all taxes, liens, assessments and charges of every character including
all utility charges, whether public or private, already levied or assessed or
that may hereafter be levied or assessed upon or against the Property as
required under the Credit Agreement.


 


6.05                           Insurance.


 


Unless Borrower has
already done so, Grantor shall procure for, deliver to and maintain for the
benefit of Agent and Lenders the insurance policies described in Section 7.7
of the Credit Agreement.  Grantor shall
pay all premiums on such insurance policies. 
All proceeds of any property or casualty insurance or awards of damages
on account of any taking or condemnation for public use of or injury to the
Property are hereby assigned and shall be paid to Agent, for the benefit of the
Lenders, subject to Borrower’s and Grantor’s right to adjust certain claims and
use such proceeds as provided in the Credit Agreement.  Any such proceeds shall be released and
advanced to Borrower or Grantor in accordance with and subject to the
requirements of the Credit Agreement and be applied to the cost of repairing or
restoring the Property or the remaining portion of the Property, with any
balance remaining to be applied in accordance with the terms and provisions of
the Credit Agreement.  In the event of a
foreclosure sale of all or any part of the Property pursuant to the enforcement
of this Instrument, the purchaser of such Property shall succeed to all rights
of Grantor, including any rights to the proceeds of insurance and to unearned
premiums, in and to all of the policies of insurance to the extent that they
relate to the Property.  In the event of
a foreclosure sale, Agent is hereby authorized, without the further consent of
Grantor, to take such steps as Agent may deem advisable to cause the interest
of such purchaser to be protected by any of such policies.  In case of Grantor’s failure to keep the
Property properly insured as required herein, Agent, after notice to Grantor,
at its option may (but shall not be required to) acquire such insurance as
required herein at Borrower’s and Grantor’s sole expense.  TEXAS
FINANCE CODE SECTION 307.052 COLLATERAL PROTECTION INSURANCE NOTICE:  (A) GRANTOR IS REQUIRED TO (i) KEEP
THE PROPERTY INSURED AGAINST DAMAGE IN THE AMOUNT SPECIFIED IN THE CREDIT
AGREEMENT; (ii) PURCHASE THE INSURANCE FROM AN INSURER THAT IS AUTHORIZED
TO DO BUSINESS IN THE STATE OF TEXAS OR AN ELIGIBLE SURPLUS LINES INSURER OR
OTHERWISE AS PROVIDED IN THE CREDIT AGREEMENT; AND (iii) NAME AGENT AS THE
PERSON TO BE PAID UNDER THE POLICY IN THE EVENT OF A LOSS AS PROVIDED IN THE
CREDIT AGREEMENT; (B) SUBJECT TO THE PROVISIONS HEREOF AND OF THE CREDIT
AGREEMENT, GRANTOR MUST, IF REQUIRED BY AGENT, DELIVER TO AGENT


 


9

















 


A COPY
OF THE POLICY AND PROOF OF THE PAYMENT OF PREMIUMS; AND (C) SUBJECT TO THE
PROVISIONS HEREOF AND OF THE CREDIT AGREEMENT, IF GRANTOR FAILS TO MEET ANY
REQUIREMENT LISTED IN THE FOREGOING SUBPARTS (A) OR (B), AGENT MAY OBTAIN
COLLATERAL PROTECTION INSURANCE ON BEHALF OF GRANTOR AT BORROWER’S AND GRANTOR’S
EXPENSE.


 


6.06                           Condemnation.  If all or any portion of the Property shall
be damaged or taken through condemnation (which term when used in this
Instrument shall include any damage or taking by any governmental authority or
any transfer by private sale in lieu thereof), either temporarily or
permanently, then all compensation, awards and other payments or relief
thereof, shall be paid and applied in accordance with terms and provisions of
the Credit Agreement.


 


6.07                           Care,
Use and Management of Property.


 


(a)                                  Grantor
will keep, or cause to be kept, the roads and walkways, landscaping and all other
Improvements of any kind now or hereafter erected on the Land or any part
thereof in good condition and repair, will not commit or suffer any waste,
impairment or deterioration (ordinary wear and tear excepted) and will not do
or suffer to be done anything which will increase, except to a de minimus
extent, the risk of fire or other hazard to the Property or any part thereof.


 


(b)                                 Other
than minor articles of personal property not material to the value or operation
of the Property, Grantor will not remove or demolish nor alter the structural
character of any building located on the Land or any fixtures or personal
property relating thereto except when incidental to the replacement of fixtures
and personal property with items of like quality and utility (which would not
impair the value of the Property as a whole) or customary tenant improvements
pursuant to Leases approved or deemed approved pursuant to the Credit
Agreement.


 


(c)                                  If
the Property or any material part thereof is materially damaged by fire or any
other cause, Grantor will give prompt written notice thereof to Agent.


 


(d)                                 To
the extent not prohibited under the terms of the applicable Leases, Agent and
each of the Lenders or its representative is hereby authorized, upon reasonable
notice, to enter upon and inspect the Property at any time during normal
business hours.


 


(e)                                  Grantor
will promptly comply with all present and future laws, ordinances, rules and
regulations of any governmental authority, all restrictive covenants and other
agreements affecting the Property or relating to the operation thereof  affecting the Property or any part thereof
and all licenses or permits affecting the Property or any part thereof, subject
to Grantor’s right to contest the same as provided in the Credit Agreement.


 


(f)                                    Grantor
shall keep the Property, including the Improvements and the Personal Property
(as hereinafter defined), in good order, repair and tenantable condition and
shall replace fixtures, equipment, machinery and appliances on the Property
when necessary to keep such items in first class order, repair, and tenantable
condition (ordinary wear and tear excepted).


 


10
















 


(g)                                 Grantor
shall keep all franchises, trademarks, trade names, service marks and licenses
and permits necessary for the Grantor’s use and occupancy of the Property in
good standing and in full force and effect.


 


(h)                                 Unless
required by applicable law or unless Agent has otherwise agreed in writing,
Grantor shall not allow changes in the nature of the occupancy or use for which
the Property was intended at the time this Instrument was executed.  Grantor shall not abandon the Property.  Grantor shall not initiate, fail to contest
or acquiesce in a change in the zoning classification of the Property or
subject the Property to restrictive or negative covenants without Agent’s
written consent.  Grantor shall in all
material respects comply with, observe and perform all zoning and other laws
affecting the Property, all agreements and restrictive covenants affecting the
Property, and all licenses and permits affecting the Property, subject to
Grantor’s right to contest compliance with laws to the extent permitted in the
Credit Agreement.


 


(i)                                     Agent
may, at Grantor’s expense, make or cause to be made reasonable entries upon and
inspections of the Property as permitted in the Credit Agreement, or at any
other time when necessary or appropriate, in the sole reasonable discretion of
Agent, to protect or preserve the Property.


 


(j)                                     If
all or any part of the Property shall be damaged by fire or other casualty or
loss, then, subject to the provisions of the Credit Agreement, Grantor will
promptly restore the Property to the equivalent of its original condition; and
if a part of the Property shall be damaged through condemnation, Grantor will
promptly restore, repair or alter the remaining portions of the Property in a
manner satisfactory to Agent. 
Notwithstanding the foregoing, Grantor shall not be obligated to so
restore unless, in each instance, Agent agrees to make available to Grantor
(subject to the terms of the Credit Agreement) any net insurance or
condemnation proceeds actually received by Agent hereunder in connection with
such casualty loss or condemnation, to the extent such proceeds are required to
defray the expense of such restoration; provided, however, that, subject to the
provisions of the Credit Agreement, the insufficiency of any such insurance or
condemnation proceeds to defray the entire expense of restoration shall in no
way relieve Grantor of its obligation to restore.


 


(k)                                  Grantor
shall pay all normal and customary operating expenses for the Property as the
same become due.


 


6.08                           Leases
and other Agreements Affecting Property.


 


(a)                                  As
additional security for the Secured Obligations, Grantor presently and
unconditionally assigns and transfers to Agent all of Grantor’s right, title
and interest in and to the Leases and the Revenues, including those now due,
past due or to become due by virtue of any of the Leases for the occupancy or
use of all or any part of the Property. 
Grantor hereby authorizes Agent or Agent’s agents to collect the
Revenues and hereby directs such tenants, lessees and licensees of the Property
to pay the Revenues to Agent or Agent’s agents; provided, however, Grantor
shall have a license (revocable upon the occurrence and during the continuance
of an Event of Default) to collect and receive the Revenues.  Grantor agrees that each and every tenant,
lessee and licensee of the Property may pay, and hereby irrevocably authorizes
and directs each and every tenant, lessee and licensee of the Property to pay,
the Revenues to Agent


 


11

















 


or Agent’s agents on
Agent’s written demand therefor (which demand may be made by Agent at any time
after the occurrence and during the continuance of an Event of Default) without
any obligation on the part of said tenant, lessee or licensee to inquire as to
the existence of an Event of Default and notwithstanding any notice or claim of
Grantor to the contrary, and Grantor agrees that Grantor shall have no right or
claim against said tenant, lessee or licensee for or by reason of any Revenues
paid to Agent following receipt of such written demand.


 


(b)                                 Grantor
hereby covenants that Grantor has not executed any prior assignment of the
Leases or the Revenues, that Grantor has not performed, and will not perform,
any acts and has not executed, and will not execute, any instruments which
would prevent Agent from exercising the rights of the beneficiary of this
Instrument, and that at the time of execution of this Instrument, there has
been no anticipation or prepayment of any of the Revenues for more than one (1) month
prior to the due dates of such Revenues. 
Grantor further covenants that Grantor will not hereafter collect or
accept payment of any Revenues more than one (1) month prior to the due
dates of such Revenues.


 


(c)                                  Grantor
agrees that neither the foregoing assignment of Leases and Revenues nor the
exercise of any of Agent’s rights and remedies under this Section or Article 2
hereof shall be deemed to make Agent a mortgagee-in-possession or otherwise
responsible or liable in any manner with respect to the Leases, the Property or
the use, occupancy, enjoyment or operation of all or any portion thereof,
unless and until Agent, in person or by agent, assumes actual possession
thereof.  Grantor further agrees that the
appointment of any receiver for the Property by any court at the request of
Agent or by agreement with Grantor, or the entering into possession of any part
of the Property by such receiver, shall not be deemed to make Agent a
mortgagee-in-possession or otherwise responsible or liable in any manner with
respect to the Leases, the Property or the use, occupancy, enjoyment or
operation of all or any portion thereof.


 


(d)                                 If
Agent exercises its rights and remedies pursuant to this Section or Article 2
hereof, all Revenues thereafter collected shall be applied in such order as
Agent may elect in its discretion to the reasonable costs of taking control of
and managing the Property and collecting the Revenues, including, but not
limited to, reasonable attorneys’ fees actually incurred, fees, receiver fees,
premiums on receiver’s bonds, costs of repairs to the Property, premiums on
insurance policies, Impositions and other charges on the Property, and the
costs of discharging any obligation or liability of Grantor as landlord, lessor
or licensor of the Property, or to the Secured Obligations.  Agent or any receiver shall have access to
the books and records used in the operation and maintenance of the Property and
shall be liable to account only for those Revenues actually received.  Agent shall not be liable to Grantor, anyone
claiming under or through Grantor or anyone having an interest in the Property
by reason of anything done or left undone by Agent pursuant to this Section or
Article 2 hereof, except in the event of Agent’s gross negligence or
willful misconduct.   If the Revenues are not sufficient to meet the
costs of taking control of and managing the Property and collecting the
Revenues, any monies reasonably expended by Agent for such purposes shall
become a portion of the Secured Obligations. 
Unless Agent and Grantor agree in writing to other terms of payment,
such amounts shall be payable upon notice from Agent to Grantor requesting
payment thereof and shall bear interest from the date of disbursement at the
Default Rate  stated in the Credit
Agreement unless payment of interest at such rate would be contrary to
applicable law, in which event such amounts shall bear interest at the highest
rate which may be collected from Grantor under applicable law.  The


 


12

















 


entering upon and taking
possession of and maintaining of control of the Property by Agent or any
receiver and the application of Revenues as provided herein shall not cure or
waive any Event of Default or invalidate any other right or remedy of Agent hereunder.


 


(e)                                  It is
the intention of Agent and Grantor that the assignment effectuated by this
Instrument with respect to the Revenues shall be a direct and currently
effective assignment and shall not constitute merely an obligation to grant a
lien, security interest or pledge for the purpose of securing the Secured
Obligations.


 


(f)                                    In
the event that a court of competent jurisdiction determines that,
notwithstanding such expressed intent of the parties, Agent’s interest in the
Revenues constitutes a lien on or security interest in or pledge of the
Revenues, it is agreed and understood that the forwarding of a notice to
Borrower after the occurrence of an Event of Default advising Borrower of the
revocation of Borrower’s license to collect such Revenues, shall be sufficient
action by Agent to (i) perfect such lien on or security interest in or
pledge of the Revenues, (ii) take possession thereof and (iii) entitle
Agent to immediate and direct payment of the Revenues, for application as
provided in this Instrument, all without the necessity of any further action by
Agent, including, without limitation, any action to obtain possession of the
Land, Improvements or any other portion of the Property.


 


6.09                           Leases
of the Property.


 


(a)                                  Except
as permitted in the Credit Agreement, Grantor shall not enter into any Lease of
all or any portion of the Property or amend, supplement or otherwise modify, or
terminate or cancel, or accept the surrender of, or consent to the assignment
or subletting of, or grant any concessions to or waive the performance of any
obligations of any tenant, lessee or licensee under, any now existing or future
Lease of the Property, without the prior written consent of Agent.  Grantor, at Agent’s request, shall furnish
Agent with executed copies of all Leases hereafter made of all or any part of
the Property.  Upon Agent’s request,
Grantor shall make a separate and distinct assignment to Agent, as additional
security, of all Leases hereafter made of all or any part of the Property.


 


(b)                                 There
shall be no merger of the leasehold estates created by the Leases with the fee
estate of the Property without the prior written consent of Agent.  Agent may at any time and from time to time
by specific written instrument intended for the purpose, unilaterally
subordinate the lien of this Instrument to any Lease, without joinder or
consent of, or notice to, Grantor, any tenant or any other Person, and notice
is hereby given to each tenant under a Lease of such right to subordinate.  No such subordination shall constitute a
subordination to any lien or other encumbrance, whenever arising, or improve
the right of any junior lienholder. 
Nothing herein shall be construed as subordinating this Instrument to
any Lease.


 


(c)                                  Grantor
hereby appoints Agent its attorney-in-fact, coupled with an interest,
empowering Agent to subordinate this Instrument to any Leases.


 


6.10                           Security
Agreement.


 


(a)                                  Insofar
as the machinery, apparatus, equipment, fittings, fixtures, building supplies
and materials, general intangibles and articles of personal property either
referred to or


 


13

















 


described in this
Instrument as part of the Property, or in any way connected with the use and
enjoyment of the Property is concerned, Grantor grants unto Agent a security
interest therein and this Instrument is hereby made and declared to be a
security agreement, encumbering each and every item of personal property (the “Personal
Property”) included herein, in compliance with the provisions of the Uniform
Commercial Code as enacted in the applicable jurisdiction as set forth in Section 3.04  below (the “UCC”).  A financing statement or statements affecting
all of said personal property aforementioned, shall be appropriately
filed.  The remedies for any violation of
the covenants, terms and conditions of the security agreement herein contained
shall be, subject to the provisions of the Credit Agreement, (i) as
prescribed herein with respect to the Property, or (ii) as prescribed by
general law, or (iii) as prescribed by the specific statutory consequences
now or hereafter enacted and specified in said UCC, all at Agent’s sole
election.  Grantor and Agent agree that
the filing of such financing statement(s) in the records normally having
to do with personal property shall never be construed as in any way derogating
from or impairing this declaration and hereby stated intention of Grantor and
Agent that everything used in connection with the production of income from the
Property and/or adapted for use therein and/or which is described or reflected
in this Instrument, is to the full extent provided by law, and at all times and
for all purposes and in all proceedings both legal or equitable shall be,
regarded as part of the real estate irrespective of whether (i) any such
item is physically attached to the Improvements, (ii) serial numbers are
used for the better identification of certain items capable of being thus
identified in a recital contained herein, or (iii) any such item is
referred to or reflected in any such financing statement(s) so filed at
any time.  Similarly, the mention in any
such financing statement(s) of the rights in and to (1) the proceeds
of any fire and/or hazard insurance policy, or (2) any award in eminent
domain proceedings for a taking or for loss of value, or (3) Grantor’s
interest as lessor in any present or future lease or rights to income growing
out of the use and/or occupancy of the Property, whether pursuant to lease or
otherwise, shall never be construed as in any way altering any of the rights of
Agent as determined by this Instrument, subject to the provisions of the Credit
Agreement, or impugning the priority of Agent’s lien granted hereby or by any
other recorded document, but such mention in such financing statement(s) is
declared to be for the protection of Agent in the event any court shall at any
time hold with respect to the foregoing (1), (2) or (3), that notice of
Agent’s priority of interest to be effective against a particular class of
persons, must be filed in the UCC records.


 


(b)                                 Grantor
warrants that (i) Grantor’s (that is, “Debtor’s”) correct legal name
(including, without limitation, punctuation and spacing) indicated on the
public record of Grantor’s jurisdiction of organization, identity or corporate
structure, residence or chief executive office and jurisdiction of organization
are as set forth in Subsection 1.10(c) hereof; (ii) Grantor (that is,
“Debtor”) has been using or operating under said name, identity or corporate
structure without change for the time period set forth in Subsection 1.10(c) hereof,
and (iii) the location of the tangible Personal Property secured by this
Instrument is upon the Land (except that the books and records related to the
Property may be stored and maintained at another site). Grantor covenants and
agrees that Grantor shall not change any of the matters addressed by clauses (i) or
(iii) of this Subsection 1.10(b) unless it has given Agent thirty
(30) days prior written notice of any such change and Grantor authorizes Agent
to file such additional financing statements or other instruments in such
jurisdictions as Agent may deem necessary or advisable in its sole discretion
to prevent any filed financing statement from becoming misleading or losing its
perfected status.


 


14

















 


(c)                                  The
information contained in this Subsection 1.10(c) is provided in order that
this Instrument shall comply with the requirements of the Uniform Commercial
Code, as enacted in the State of Texas, for instruments to be filed as
financing statements.  The names of the “Debtor”
and the “Secured Party”, the identity or corporate structure, jurisdiction of
organization, organizational number, federal tax identification number, and
residence or chief executive office of “Debtor”, and the time period for which “Debtor”
has been using or operating under said name and identity or corporate structure
without change, are as set forth in Schedule 1 of Exhibit “C” attached
hereto and by this reference made a part hereof; the mailing address of the “Secured
Party” from which information concerning the security interest may be obtained,
and the mailing address of “Debtor”, are as set forth in Schedule 2 of Exhibit “C”
attached hereto; and a statement indicating the types, or describing the items,
of Personal Property secured by this Instrument is set forth hereinabove.


 


(d)                                 Exhibit “C”
correctly sets forth all names and tradenames that Grantor has used within the
last five years, and also correctly sets forth the locations of all of the
chief executive offices of Grantor over the last five years.


 


(e)                                  The
Grantor hereby covenants and agrees that:


 


(1)                                  Grantor
shall not merge or consolidate into, or transfer any of the Property to, any
other person or entity except as permitted under the Credit Agreement.


 


(2)                                  Grantor
shall, at any time and from time to time, take such steps as Agent may
reasonably request for Agent (A) to use commercially reasonable efforts to
obtain an acknowledgment, in form and substance reasonably satisfactory to Agent,
of any bailee having possession of any of the Property, stating that the bailee
holds possession of such Property on behalf of Agent, (B) to obtain “control”
of any investment property, letter-of-credit rights, or electronic chattel
paper (as such terms are defined by the UCC with corresponding provisions
thereof defining what constitutes “control” for such items of collateral), with
any agreements establishing control to be in form and substance reasonably
satisfactory to Agent, and (C) otherwise to insure the continued
perfection and priority of the Agent’s security interest in any of the Property
and of the preservation of its rights therein. 
If Grantor shall at any time, acquire a “commercial tort claim” (as such
term is defined in the UCC) with respect to the Property or any portion
thereof, Grantor shall promptly notify Agent thereof in writing, providing a
reasonable description and summary thereof, and shall execute a supplement to
this Instrument in form and substance acceptable to Agent granting a security
interest in such commercial tort claim to Agent.


 


(3)                                  Grantor
hereby authorizes Agent, its counsel or its representative, at any time and
from time to time, to file financing statements, amendments and continuations
that describe or relate to the Property or any portion thereof in such
jurisdictions as Agent may deem necessary or desirable in order to perfect the
security interests granted by Grantor under this Instrument or any other Loan
Document, and such financing statements may contain, among other items as Agent
may deem advisable to include therein, the federal tax identification number of
Grantor.


 


15

















 


(4)                                  Grantor
shall not license, lease, sell or otherwise transfer any of the general intangibles
to any third party during the term of this Instrument and the Credit Agreement
without the prior written consent of the Agent (which consent may be withheld
in the Agent’s sole discretion); and the Grantor will continue to use all
trademarks, service marks and trade names in a consistent manner and shall take
all commercially reasonable steps to properly maintain any formal registrations
on the general intangibles that are material to the value or operation of the
Property, and to defend and enforce them, for the term of this Instrument and
the Credit Agreement.


 


6.11                           Further
Assurances; After-Acquired Property.  At
any time and from time to time, upon request by Agent, Grantor will make,
execute and deliver or cause to be made, executed and delivered, to Trustee and
Agent and, where appropriate, cause to be recorded and/or filed and from time
to time thereafter to be rerecorded and/or refiled at such time and in such
offices and places as shall reasonably be deemed desirable by Agent, any and
all such other and further deeds of trust, security agreements, financing
statements, notice filings, continuation statements, instruments of further
assurance, certificates and other documents as may, in the reasonable opinion
of Agent, be necessary or desirable in order to effectuate, complete, or
perfect, or to continue and preserve (a) the obligation of Grantor under
the Guaranty, this Instrument and the other Loan Documents and (b) this
Instrument as a first and prior lien upon and security interest in and to all
of the Property, whether now owned or hereafter acquired by Grantor. Upon any
failure by Grantor so to do, Agent may make, execute, record, file, re-record
and/or refile any and all such deeds of trust, security agreements, financing
statements, continuation statements, instruments, certificates, and documents
for and in the name of Grantor and Grantor hereby irrevocably appoints Agent
the agent and attorney-in-fact of Grantor so to do. The lien hereof will
automatically attach, without further act, to all after acquired property
attached to and/or used in the operation of the Property or any part thereof.


 


6.12                           Expenses.  Grantor will pay or reimburse Agent, upon
demand therefor, for all reasonable attorney’s fees, costs and expenses
incurred by Agent in any suit, action, legal proceeding or dispute of any kind
in which Lenders, Agent or Trustee is made a party or appears as party
plaintiff or defendant, affecting or arising in connection with the Secured
Obligations secured hereby, this Instrument or the interest created herein, or
the Property, including, but not limited to, the exercise of the power of sale
contained in this Instrument, any condemnation action involving the Property or
any action to protect the security hereof; and any such amounts paid by
Lenders, Agent or Trustee shall be added to the Secured Obligations secured by
the lien of this Instrument.


 


6.13                           Subrogation.  Agent shall be subrogated to the claims and
liens of all parties whose claims or liens are discharged or paid with the proceeds
of the Secured Obligations secured hereby.


 


6.14                           Limit
of Validity.  If from any circumstances
whatsoever fulfillment of any provision of this Instrument, the Guaranty, the
Credit Agreement, the Notes or any other Loan Document, at the time performance
of such provision shall be due, shall be subject to the defense of usury or
otherwise transcend or violate applicable law concerning interest or other
charges, then ipso facto the obligation to be fulfilled shall be reduced to the
limit, so that in no event shall any exaction be possible under this
Instrument, the Guaranty, the Notes, the Credit Agreement or


 


16

















 


any other Loan Document
be subject to the defense of usury or otherwise transcend or violate applicable
law concerning interest or other charges that is in excess of the current
limit, but such obligation shall be fulfilled to the maximum limit
permitted.  The provisions of this Section 1.14
shall control every other provision of this Instrument, the Guaranty, the
Notes, the Credit Agreement or any other Loan Document.


 


6.15                           Conveyance
of Property.  Grantor hereby acknowledges
to Agent that (a) the identity and expertise of Grantor was and continues
to be a material circumstance upon which Agent has relied in connection with,
and which constitute valuable consideration to Agent for, the extending to
Borrower of the loans and other extensions of credit evidenced by the Notes and
Credit Agreement, and (b) any change in such identity or expertise could materially
impair or jeopardize the security for the payment of the Secured Obligations
granted to Agent by this Instrument. Grantor therefore covenants and agrees
with Agent, as part of the consideration for the extending to Grantor of the
loans evidenced by the Notes, that Grantor shall not convey, transfer, assign,
further encumber or pledge any or all of its interest in the Property except as
permitted under the Credit Agreement.


 


ARTICLE 7


 


7.01                           Events
of Default.  The terms “Default” and “Event
of Default” as used herein shall have the following meanings:


 


“Default” shall mean any
event which, with the giving of notice or the lapse of time, or both, would
become an Event of Default.


 


“Event of Default” shall
mean (a) any default in the payment of the obligations of Grantor
hereunder or of Borrower or any other Guarantor under any of the other Loan
Documents when the same shall become due and payable which is not cured within
any grace or notice and cure period provided in the Credit Agreement or such other
Loan Documents, if any, subject to any limitations in the Credit Agreement on
the right of Grantor, Borrower or any other Guarantor to receive notices of
default, or (b) any default in the performance of any other obligations of
Grantor hereunder which is not cured within any grace or cure period provided
in the Credit Agreement (it being acknowledged by Grantor that no such cure
period is provided with respect to a failure to maintain insurance as required
in Section 1.05, any default under Section 1.08, any default under Section 1.15,
or any default excluded from any provision for a grace period or cure of
defaults contained in the Credit Agreement, the Security Documents (as defined
in the Credit Agreement) or any other agreement evidencing or securing the
Secured Obligations), or (c) any representation or warranty of Grantor
hereunder proving to be false or incorrect in any material respect upon the
date when made or deemed to have been repeated, or (d) any default in the
performance of the obligations of Grantor or Borrower or any other Person under
any of the Security Documents beyond the expiration of any applicable notice
and cure period, (e) the occurrence of any “Event of Default” under the
Credit Agreement or any other Loan Document, (f) any amendment to or
termination of a financing statement


 


17

















 


naming Grantor as debtor
and Agent as secured party, or any correction statement with respect thereto,
is filed in any jurisdiction by, or caused by, or at the instance of Grantor or
by, or caused by, or at the instance of any principal, member, general partner
or officer of Grantor (collectively, “Grantor Party”) without the prior written
consent of Agent; or (g) in the event that any amendment to or termination
of a financing statement naming Grantor as debtor and Agent as secured party,
or any correction statement with respect thereto, is filed in any jurisdiction
by any party other than a Grantor Party or Agent or Agent’s counsel without the
prior written consent of Agent, failure by Grantor, within fifteen (15) days
after notice to Grantor thereof (or such longer period as Agent may agree to in
writing) (i) to deliver to Agent UCC financing statement searches of the
appropriate jurisdiction(s) or other evidence reasonably satisfactory to
Agent that no other liens or security interests (except for such, if any, as
constitute Permitted Encumbrances hereunder) have been filed against any of the
Property, (ii) to authorize, and execute any documents reasonably
requested by Agent to evidence authorization of, the filing of any new
financing statements, amendments or acknowledgements with respect to the
affected financing statement deemed necessary by Agent to restore Agent’s lien
priority, and (iii) to execute any acknowledgement or other document
reasonably requested by Agent to acknowledge and evidence the termination or
nullification of such unauthorized amendment, termination or correction
statement.


 


7.02                           Acceleration
of Maturity.  If an Event of Default shall
have occurred and be continuing, then the entire Secured Obligations secured
hereby shall, at the option of Agent and as permitted by the terms of the
Credit Agreement, immediately become due and payable without notice or demand
except as required by law, time being of the essence of this Instrument.


 


7.03                           Right
to Enter and Take Possession.


 


(a)                                  If an
Event of Default shall have occurred and be continuing, Grantor, upon demand of
Agent, shall forthwith surrender to Agent the actual possession of the Property,
and if and to the extent permitted by law, Agent itself, or by such officers or
agents as it may appoint, may enter and take possession of all the Property (or
such portion or portions as Agent may select) without the appointment of a
receiver, or an application therefor, and may exclude Grantor and its agents
and employees wholly therefrom, and may have joint access with Grantor to the
books, papers and accounts of Grantor.


 


(b)                                 If
Grantor shall for any reason fail to surrender or deliver the Property or any
part thereof after such demand by Agent, Agent may obtain a judgment or decree
conferring upon Agent the right to immediate possession or requiring Grantor to
deliver immediate possession of the Property to Agent. Grantor will pay to
Agent, upon demand, all expenses of obtaining such judgment or decree,
including reasonable compensation to Agent, its attorneys and agents; and all
such expenses and compensation shall, until paid, be secured by the lien of
this Instrument.


 


(c)                                  Upon
every such entering upon or taking of possession, Agent may hold, store, use,
operate, manage and control the Property and conduct the business thereof and,
from


 


18

















 


time to time, (i) make
all necessary and proper maintenance, repairs, renewals, replacements,
additions, betterments and improvements thereto and thereon and purchase or
otherwise acquire additional fixtures, personalty and other property; (ii) insure
or keep the Property insured; (iii) lease, manage and operate the Property
and exercise all the rights and powers of Grantor to the same extent as Grantor
could in its own name or otherwise with respect to the same; and (iv) enter
into any and all agreements with respect to the exercise by others of any of
the powers herein granted Agent, all as Agent from time to time may determine
to be in its best interest. Agent may collect and receive all the rents,
issues, profits and revenues from the Property, including those past due as
well as those accruing thereafter, and, after deducting (1) all expenses
of taking, holding, managing and operating the Property (including compensation
for the services of all persons employed for such purposes); (2) the cost
of all such maintenance, repairs, renewals, replacements, additions,
betterments, improvements, purchases and acquisitions; (3) the cost of
such insurance; (4) such taxes, assessments and other similar charges as
Agent may at its option pay; (5) other proper charges upon the Property or
any part thereof; and (6) the reasonable compensation, expenses and
disbursements of the attorneys and agents of Agent, Agent shall apply the
remainder of the monies and proceeds so received by Agent in accordance with Section 12.5
of the Credit Agreement.  Agent shall
have no obligation to discharge any duties of a landlord to any tenant or to
incur any liability as a result of any exercise by Agent of any rights under
this Instrument or otherwise.  Agent
shall not be liable for any failure to collect rents, issues, profits and
revenues from the Property, nor shall Agent be liable to account for any such
rents, issues, profits or revenues unless actually received by Agent.


 


(d)                                 Whenever
all that is due upon the Secured Obligations and under any of the terms,
covenants, conditions and agreements of this Instrument shall have been paid,
the Lenders have no obligation to make further Loans and the Issuing Lender has
no further obligation to issue Letters of Credit, and all Events of Default
cured, Agent shall surrender possession of the Property to Grantor, its
successors or assigns.  The same right of
taking possession, however, shall exist if any subsequent Event of Default
shall occur and be continuing.


 


7.04                           Performance
by Agent.  If there shall be a Default or
Event of Default in the payment, performance or observance of any term,
covenant or condition of this Instrument, Agent may, so long as such Default or
Event of Default continues, at its option, pay, perform or observe the same,
and all payments made or costs or expenses incurred by Agent in connection
therewith, shall be secured hereby and shall be, upon demand, immediately
repaid by Grantor to Agent with interest thereon at the Default Rate.  Agent shall be the sole judge of the
necessity for any such actions and of the amounts to be paid. Agent is hereby
empowered to enter and to authorize others to enter upon the Land or any part
thereof for the purpose of performing or observing any such defaulted term,
covenant or condition without thereby becoming liable to Grantor or any person
in possession holding under Grantor.


 


7.05                           Receiver.  If an Event of Default shall have occurred
and be continuing, Agent, upon application to a court of competent
jurisdiction, shall be entitled as a matter of strict right without regard to
the occupancy or value of any security for the Secured Obligations secured
hereby or the solvency of any party bound for its payment, to the appointment
of a receiver to take possession of and to operate the Property (or such
portion or portions as Agent may select) and to collect and apply the rents,
issues, profits and revenues thereof. 
The receiver shall have


 


19

















 


all of the rights and
powers permitted under the laws of the State of Texas.  Grantor will pay to Agent upon demand all
reasonable expenses, including receiver’s fees, attorney’s fees, costs and
agent’s compensation, incurred pursuant to the provisions of this Section 2.05,
and all such expenses shall be secured by this Instrument.


 


7.06                           Enforcement.


 


(a)                                  If an
Event of Default shall have occurred and be continuing, to the extent permitted
by law, Agent, at its option, may effect the foreclosure of this Instrument by
directing the Trustee to sell the Property (or such portion or portions thereof
as the Trustee may select) at public auction at such time and place and upon
such terms and conditions as may be required or permitted by applicable law,
after having first advertised the time, place and terms of sale not less than
once a week for three successive weeks in a newspaper having general
circulation in the city or county in which the Land being sold lies.  At any foreclosure sale, such portion of the
Property as is offered for sale may, at the Trustee’s option, be offered for
sale for one total price, and the proceeds of such sale accounted for in one
account without distinction between the items of security or without assigning
to them any proportion of such proceeds, the Grantor hereby waiving the
application of any doctrine of marshalling.


 


(b)                                 If an
Event of Default shall have occurred and be continuing, Agent may, in addition
to and not in abrogation of the rights covered under subparagraph (a) of
this Section 2.06, either with or without entry or taking possession as
herein provided or otherwise, proceed by a suit or suits in law or in equity or
by any other appropriate proceeding or remedy (i) to enforce payment of
the Secured Obligations or the performance of any term, covenant, condition or
agreement of this Instrument or any other right, and (ii) to pursue any
other remedy available to it, all as Agent shall determine most effectual for
such purposes.


 


7.07                           Purchase
by Agent.  Upon any foreclosure sale,
Agent, on behalf of the Lenders, may bid for and purchase the Property and
shall be entitled to apply all or any part of the Secured Obligations secured
hereby as a credit to the purchase price.


 


7.08                           Application
of Proceeds of Sale.  The proceeds
received by Agent as a result of the foreclosure sale of the Property or the
exercise of any other rights or remedies hereunder shall be applied in the
manner provided for in Section 12.5 of the Credit Agreement.


 


7.09                           Grantor
as Tenant Holding Over.  In the event of
any such foreclosure sale by Agent, Grantor shall be deemed a tenant holding
over and shall forthwith deliver possession to the purchaser or purchasers at
such sale or be summarily dispossessed according to provisions of law
applicable to tenants holding over.


 


7.10                           Waiver
of Appraisement, Valuation, Stay, Extension and Redemption Laws.  Grantor agrees, to the full extent permitted
by law, that in case of a Default or Event of Default, neither Grantor nor
anyone claiming through or under it shall or will set up, claim or seek to take
advantage of any appraisement, valuation, stay, extension, homestead, exemption
or redemption laws now or hereafter in force, in order to prevent or hinder the
enforcement or foreclosure of this Instrument, or the absolute sale of the
Property, or the final and absolute putting into possession thereof,
immediately after such sale, of the purchasers thereat, and Grantor, for itself



 


20
















 


and all who may at any time claim through or under it, hereby waives to the
full extent that it may lawfully so do, the benefit of all such laws, and any
and all right to have the assets comprised in the security intended to be
created hereby marshaled upon any foreclosure of the lien hereof.


 


7.11                           Waiver of
Homestead.  Grantor hereby waives and
renounces all homestead and exemption rights provided for by the Constitution
and the laws of the United States and of any state, in and to the Property as
against the collection of the Secured Obligations, or any part hereof.


 


7.12                           Leases;
Licensees.  Agent, at its option, is
authorized to foreclose this Instrument subject to the rights of any tenants
and licensees of the Property, and the failure to make any such tenants or
licensees parties to any such foreclosure proceedings and to foreclose their
rights will not be, nor be asserted by Grantor to be a defense to any
proceedings instituted by Agent to collect the sums secured hereby.


 


7.13                           Discontinuance of
Proceedings and Restoration of the Parties. 
In case Agent shall have proceeded to enforce any right, power or remedy
under this Instrument by foreclosure, entry or otherwise, and such proceedings
shall have been discontinued or abandoned for any reason, or shall have been
determined adversely to Agent, then and in every such case Grantor and Agent
shall be restored to their former positions and rights hereunder, and all
rights, powers and remedies of Agent shall continue as if no such proceeding
had been taken.


 


7.14                           Remedies
Cumulative.  No right, power or remedy
conferred upon or reserved to Agent by this Instrument is intended to be
exclusive of any other right, power or remedy, but each and every such right,
power and remedy shall be cumulative and concurrent and may be exercised
against Grantor as Agent may select and shall be in addition to any other
right, power and remedy given hereunder or now or hereafter existing at law or
in equity or by statute.


 


7.15                           Waiver.


 


(a)                               No delay or
omission of Agent or of any Lender to exercise any right, power or remedy
accruing upon any Default or Event of Default shall exhaust or impair any such
right, power or remedy or shall be construed to be a waiver of any such Default
or Event of Default, or acquiescence therein; and every right, power and remedy
given by this Instrument to Agent may be exercised from time to time and as
often as may be deemed expedient by Agent. 
No consent or waiver, expressed or implied, by Agent to or of any
Default or Event of Default by Grantor in the performance of the obligations
thereof hereunder shall be deemed or construed to be a consent or waiver to or
of any other Default or Event of Default in the performance of the same or any
other obligations of Grantor hereunder. 
Failure on the part of Lenders to complain of any act or failure to act
or to declare a Default or Event of Default, irrespective of how long such
failure continues, shall not constitute a waiver by any Lender of its rights
hereunder or impair any rights, powers or remedies consequent on any Default or
Event of Default by Grantor.


 


(b)                              If Lenders or Agent
on behalf of the Lenders, (i) grant forbearance or an extension of time
for the payment of any sums secured hereby; (ii) take other or additional
security for the payment of any sums secured hereby; (iii) waive or do not
exercise any right 


 


21

















 


granted herein or
in the Notes, the Credit Agreement or any other Loan Document; (iv) release
any part of the Property from the lien of this Instrument or otherwise change
any of the terms, covenants, conditions or agreements of the Notes, this
Instrument or any other Loan Document; (v) consent to the filing of any
map, plat or replat affecting the Property; (vi) consent to the granting
of any easement or other right affecting the Property; or (vii) make or
consent to any agreement subordinating the lien hereof, any such act or
omission shall not release, discharge, modify, change or affect the original
liability under the Notes, the Credit Agreement, the Guaranty, this Instrument
or any other obligation of Grantor, or any subsequent purchaser of the Property
or any part thereof, or any maker, co-signer, endorser, surety or guarantor;
nor shall any such act or omission preclude Agent from exercising any right,
power or privilege herein granted or intended to be granted in the event of any
Default then made or of any subsequent Default; nor, except as otherwise
expressly provided in an instrument or instruments executed by Agent, shall the
lien of this Instrument be altered thereby. 
In the event of the sale or transfer by operation of law or otherwise of
all or any part of the Property, Agent, without notice, is hereby authorized
and empowered to deal with any such vendee or transferee with reference to the
Property or the Secured Obligations secured hereby, or with reference to any of
the terms, covenants, conditions or agreements hereof, as fully and to the same
extent as it might deal with the original parties hereto and without in any way
releasing or discharging any liabilities, obligations or undertakings.


 


7.16                           Suits to Protect
the Property.  Agent shall have power (a) to
institute and maintain such suits and proceedings as it may deem expedient to
prevent any impairment of the Property by any acts which may be unlawful or in
violation of this Instrument, (b) to preserve or protect its interest in
the Property and in the rents, issues, profits and revenues arising therefrom,
and (c) to restrain the enforcement of or compliance with any legislation
or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order would impair the security hereunder or be
prejudicial to the interest of Lenders.


 


7.17                           Agent May File
Proofs of Claim.  In the case of any
receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment,
composition or other proceedings affecting Grantor, its creditors or its
property, Agent, to the extent permitted by law, shall be entitled to file such
proofs of claim and other documents as may be necessary or advisable in order
to have the claims of Agent allowed in such proceedings for the entire amount
due and payable by Grantor under this Instrument at the date of the institution
of such proceedings and for any additional amount which may become due and
payable by Grantor hereunder after such date.


 


7.18                           WAIVER OF GRANTOR’S
RIGHTS.  BY EXECUTION OF THIS INSTRUMENT,
GRANTOR EXPRESSLY: (A) ACKNOWLEDGES THE RIGHT OF AGENT AND/OR LENDERS TO
ACCELERATE THE SECURED OBLIGATIONS AND, TO THE EXTENT PERMITTED BY LAW, THE
POWER OF AGENT TO CAUSE TRUSTEE TO SELL THE PROPERTY BY NONJUDICIAL FORECLOSURE
UPON DEFAULT BY GRANTOR WITHOUT ANY JUDICIAL HEARING AND WITHOUT ANY NOTICE
OTHER THAN SUCH NOTICE (IF ANY) AS IS SPECIFICALLY REQUIRED TO BE GIVEN UNDER
THE PROVISIONS OF THIS INSTRUMENT OR BY LAW; (B) TO THE FULL EXTENT
PERMITTED BY LAW, WAIVES ANY AND ALL RIGHTS WHICH GRANTOR MAY HAVE UNDER
THE CONSTITUTION OF THE UNITED STATES (INCLUDING, 


 


22

















 


WITHOUT LIMITATION,
THE FIFTH AND FOURTEENTH AMENDMENTS THEREOF), THE VARIOUS PROVISIONS OF THE
CONSTITUTIONS FOR THE SEVERAL STATES, OR BY REASON OF ANY OTHER APPLICABLE LAW,
TO NOTICE AND TO JUDICIAL HEARING PRIOR TO THE EXERCISE BY AGENT OF ANY RIGHT
OR REMEDY HEREIN PROVIDED TO AGENT, EXCEPT SUCH NOTICE (IF ANY) AS IS
SPECIFICALLY REQUIRED TO BE PROVIDED IN THIS INSTRUMENT OR BY APPLICABLE LAW; (C) ACKNOWLEDGES
THAT GRANTOR HAS READ THIS INSTRUMENT AND THE OTHER LOAN DOCUMENTS AND ANY AND
ALL QUESTIONS REGARDING THE LEGAL EFFECT OF THIS INSTRUMENT AND THE OTHER LOAN
DOCUMENTS AND THEIR PROVISIONS HAVE BEEN EXPLAINED FULLY TO GRANTOR AND GRANTOR
HAS CONSULTED WITH COUNSEL OF GRANTOR’S CHOICE PRIOR TO EXECUTING THIS
INSTRUMENT; AND (D) ACKNOWLEDGES THAT ALL WAIVERS OF THE AFORESAID RIGHTS
OF GRANTOR HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND WILLINGLY BY GRANTOR AS PART OF
A BARGAINED FOR LOAN TRANSACTION.


 


7.19                           Claims Against
Agent and Lenders.  No action at law or
in equity shall be commenced, or allegation made, or defense raised, by Grantor
against Agent or the Lenders for any claim under or related to this Instrument,
the Notes, the Credit Agreement, the Guaranty or any other instrument,
document, transfer, conveyance, assignment or loan agreement given by Grantor
with respect to the Secured Obligations secured hereby, or related to the
conduct of the parties thereunder, unless written notice of such claim,
expressly setting forth the particulars of the claim alleged by Grantor, shall
have been given to Agent within sixty (60) days from and after the initial
awareness of Grantor of the event, omission or circumstances forming the basis
of Grantor for such claim.  Any  failure by Grantor to timely provide such
written notice to Agent shall constitute a waiver by Grantor of such claim.


 


7.20                           [Intentionally
Omitted].


 


7.21                           Indemnification;
Subrogation; Waiver of Offset.


 


(a)                               Grantor shall
indemnify, defend and hold Agent and the Lenders harmless for, from and against
any and all liability, obligations, losses, damages, penalties, claims,
actions, suits, costs and expenses (including Agent’s reasonable attorneys’
fees, together with reasonable appellate counsel fees, if any) of whatever kind
or nature which may be asserted against, imposed on or incurred by Agent or the
Lenders in connection with the Secured Obligations, this Instrument, the
Property, or any part thereof, or the exercise by Agent of any rights or
remedies granted to it under this Instrument; provided, however, that nothing
herein shall be construed to obligate Grantor to indemnify, defend and hold
harmless Agent or the Lenders for, from and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, suits, costs and
expenses asserted against, imposed on or incurred by Agent or a Lender by
reason of such Person’s willful misconduct or gross negligence if a judgment is
entered against Agent or a Lender by a court of competent jurisdiction after the
expiration of all applicable appeal periods.


 


(b)                              If Agent or a
Lender is made a party defendant to any litigation or any claim is threatened
or brought against Agent or a Lender concerning the Secured Obligations, this
Instrument, the Property, or any part thereof, or any interest therein, or the
construction, 


 


23

















 


maintenance,
operation or occupancy or use thereof, then Grantor shall indemnify, defend and
hold such Person harmless for, from and against all liability by reason of said
litigation or claims, including reasonable attorneys’ fees (together with
reasonable appellate counsel fees, if any) and expenses incurred by such Person
in any such litigation or claim, whether or not any such litigation or claim is
prosecuted to judgment; provided, however, that nothing in this Section 2.21(b) shall
be construed to obligate Grantor to indemnify, defend and hold harmless Agent
or a Lender for, from and against any and all liabilities or claims imposed on
or incurred by such Person by reason of such Person’s willful misconduct or
gross negligence if a judgment is entered against such Person by a court of
competent jurisdiction after expiration of all applicable appeal periods.  If Agent commences an action against Grantor
to enforce any of the terms hereof or to prosecute any breach by Grantor of any
of the terms hereof or to recover any sum secured hereby, Grantor shall pay to
Agent its reasonable attorneys’ fees (together with reasonable appellate
counsel, fees, if any) and expenses.  The
right to such attorneys’ fees (together with reasonable appellate counsel fees,
if any) and expenses shall be deemed to have accrued on the commencement of
such action, and shall be enforceable whether or not such action is prosecuted
to judgment.  If Grantor breaches any
term of this Instrument, Agent may engage the services of an attorney or
attorneys to protect its rights hereunder, and in the event of such engagement
following any breach by Grantor, Grantor shall pay Agent reasonable attorneys’
fees (together with reasonable appellate counsel fees, if any) and expenses
incurred by Agent, whether or not an action is actually commenced against
Grantor by reason of such breach.  All
references to “attorneys” in this Subsection and elsewhere in this Instrument
shall include without limitation any attorney or law firm engaged by Agent and
Agent’s in-house counsel, and all references to “fees and expenses” in this
Subsection and elsewhere in this Instrument shall include without limitation
any fees of such attorney or law firm and any allocation charges and allocation
costs of Agent’s in-house counsel.


 


(c)                                  A waiver of
subrogation shall be obtained by Grantor from its insurance carrier and,
consequently, Grantor waives any and all right to claim or recover against
Agent, the Lenders and each of its officers, employees, agents and
representatives, for loss of or damage to Grantor, the Property, Grantor’s
property or the property of others under Grantor’s control from any cause insured
against or required to be insured against by the provisions of this Instrument.


 


(d)                                 ALL SUMS PAYABLE BY
GRANTOR HEREUNDER SHALL BE PAID WITHOUT NOTICE (EXCEPT AS MAY OTHERWISE BE
PROVIDED HEREIN), DEMAND, COUNTERCLAIM, SETOFF, DEDUCTION OR DEFENSE AND WITHOUT
ABATEMENT, SUSPENSION, DEFERMENT, DIMINUTION OR REDUCTION, AND THE SECURED
OBLIGATIONS AND LIABILITIES OF GRANTOR HEREUNDER SHALL IN NO WAY BE RELEASED,
DISCHARGED OR OTHERWISE AFFECTED BY REASON OF: (I) ANY DAMAGE TO OR
DESTRUCTION OF OR ANY CONDEMNATION OR SIMILAR TAKING OF THE PROPERTY OR ANY PART THEREOF;
(II) ANY RESTRICTION OR PREVENTION OF OR INTERFERENCE WITH ANY USE OF THE
PROPERTY OR ANY PART THEREOF; (III) ANY TITLE DEFECT OR ENCUMBRANCE
OR ANY EVICTION FROM THE LAND OR THE IMPROVEMENTS ON THE LAND OR ANY PART THEREOF
BY TITLE PARAMOUNT OR OTHERWISE; (IV) ANY BANKRUPTCY, INSOLVENCY,
REORGANIZATION, COMPOSITION, ADJUSTMENT, DISSOLUTION, LIQUIDATION, OR OTHER
LIKE PROCEEDING RELATING TO AGENT OR THE LENDERS, OR ANY ACTION TAKEN WITH
RESPECT TO THIS INSTRUMENT BY ANY TRUSTEE OR BY 


 


24

















 


ANY RECEIVER OF
AGENT, OR BY ANY COURT, IN SUCH PROCEEDING; (V) ANY CLAIM WHICH GRANTOR
HAS, OR MIGHT HAVE, AGAINST AGENT OR THE LENDERS; (VI) ANY DEFAULT OR
FAILURE ON THE PART OF AGENT OR THE LENDERS TO PERFORM OR COMPLY WITH
ANY OF THE TERMS HEREOF OR OF ANY OTHER AGREEMENT WITH GRANTOR; OR (VII) ANY
OTHER OCCURRENCE WHATSOEVER, WHETHER SIMILAR OR DISSIMILAR TO THE FOREGOING,
WHETHER OR NOT GRANTOR SHALL HAVE NOTICE OR KNOWLEDGE OF ANY OF THE
FOREGOING.  GRANTOR WAIVES ALL RIGHTS NOW
OR HEREAFTER CONFERRED BY STATUTE OR OTHERWISE TO ANY ABATEMENT, SUSPENSION,
DEFERMENT, DIMINUTION, OR REDUCTION OF ANY SUM SECURED HEREBY AND PAYABLE BY
GRANTOR.


 


7.22                           Revolving Credit/Future
Advance.  This Instrument secures Secured
Obligations which may provide for a variable rate of interest as well as
revolving credit advances and other future advances, whether such advances are
obligatory or otherwise.  Advances under
the Notes are subject to the terms and provisions of the Credit Agreement and
the other Security Documents. Grantor acknowledges that the Secured Obligations
may increase or decrease from time to time and that if the outstanding balance
of the Secured Obligations is ever repaid to zero the security title and
security interest created by this Instrument shall not be deemed released or
extinguished by operation of law or implied intent of the parties.  This Instrument shall remain in full force
and effect as to any further advances under the Credit Agreement made after any
such zero balance until the Secured Obligations are paid in full, all
agreements to make further advances or issue letters of credit have been
terminated and this Instrument has been canceled of record.  Grantor waives the operation of any
applicable statutes, case law or regulation having a contrary effect.


 


ARTICLE 8


 


8.01                           Successors and
Assigns.  This Instrument shall inure to
the benefit of and be binding upon Grantor, Trustee and Agent and their respective
heirs, executors, legal representatives, successors and assigns.  Whenever a reference is made in this
Instrument to Grantor, Trustee or Agent such reference shall be deemed to
include a reference to the heirs, executors, legal representatives, successors
and assigns of Grantor or Agent.


 


8.02                           Terminology.  All personal pronouns used in this Instrument
whether used in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural, and vice versa.  Titles and Articles are for convenience only
and neither limit nor amplify the provisions of this Instrument itself, and all
references herein to Articles, Sections or subsections thereof, shall refer to
the corresponding Articles, Sections or subsections thereof, of this Instrument
unless specific reference is made to such Articles, Sections or subsections
thereof of another document or instrument.


 


8.03                           Severability.  If any provision of this Instrument or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Instrument and the
application of such provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.


 


25

















 


8.04                           Applicable
Law.  This Instrument will be governed by
the substantive laws of the State of Texas, without giving effect to its
principles of choice of law or conflicts of law (except with respect to choice
of law or conflicts of law provisions of its Uniform Commercial Code), and the
laws of the United States applicable to transactions in the State of
Texas.  Should any obligation or remedy
under this Instrument be invalid or unenforceable pursuant to the laws provided
herein to govern, the laws of any other state referred to herein or of another
state whose laws can validate and apply thereto shall govern.


 


8.05                           Notices.  Except as otherwise provided herein, any
notice or other communication required hereunder shall be in writing, and shall
be deemed to have been validly served, given or delivered if given and
delivered as provided in the Guaranty if given to Grantor or as provided in the
Credit Agreement if given to Agent.


 


8.06                           Conflict with
Credit Agreement Provisions.  Grantor
hereby acknowledges and agrees that, in the event of any conflict between the
terms hereof and the terms of the Credit Agreement, the terms of the Credit
Agreement shall control.


 


8.07                           Assignment.  This Instrument is assignable by Agent, and
any assignment hereof by Agent shall operate to vest in the assignee all rights
and powers herein conferred upon and granted to Agent.


 


8.08                           Time of the
Essence.  Time is of the essence with
respect to each and every covenant, agreement and obligation of Grantor under
this Instrument, and any and all other Loan Documents to which Grantor is a
party.


 


8.09                           Grantor.  Unless the context clearly indicates
otherwise, as used in this Instrument, “Grantor” means the grantors named in
recitals hereof or any of them.  The
obligations of Grantor hereunder shall be joint and several.  If any Grantor, or any signatory who signs on
behalf of any Grantor, is a corporation, partnership or other legal entity,
Grantor represents and warrants to Agent that this instrument is executed,
acknowledged and delivered by Grantor’s duly authorized representatives.


 


8.10                           Place of Payment;
Forum; Waiver of Jury Trial.  All Secured
Obligations which may be owing hereunder at any time by Borrower or Grantor
shall be payable at the place designated in the Credit Agreement (or if no such
designation is made, at the address of Agent indicated at the end of this
Instrument).  Grantor hereby irrevocably
submits generally and unconditionally for itself and in respect of its property
to the non-exclusive jurisdiction of any state court, or any United States
federal court, sitting in the county in which the Secured Obligations are
payable, and to the non-exclusive jurisdiction of any state court or any United
States federal court sitting in the state in which any of the Property is
located, over any suit, action or proceeding arising out of or relating to this
Instrument or the Secured Obligations. 
Grantor hereby irrevocably waives, to the fullest extent permitted by
law, any objection that Grantor may now or hereafter have to the laying of
venue in any such court and any claim that any such court is an inconvenient
forum.  Grantor hereby agrees and
consents that, in addition to any methods of service of process provided for
under applicable law, all service of process in any such suit, action or
proceeding may be made by certified or registered mail, return receipt
requested, directed to Grantor at its address stated in Section 4.03(l) of
this Instrument, or at a 


 


26

















 


subsequent address
of Grantor of which Agent received actual notice from Grantor in accordance
with the Credit Agreement, and service so made shall be completed five (5) days
after the same shall have been so mailed. 
Nothing herein shall affect the right of Agent to serve process in any
manner permitted by law or limit the right of Agent to bring proceedings
against Grantor in any other court or jurisdiction.  TO THE FULLEST EXTENT PERMITTED BY LAW,
GRANTOR WAIVES THE RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY ACTION, SUIT
OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS INSTRUMENT OR ANY OTHER
LOAN DOCUMENT.


 


ARTICLE 9— STATE SPECIFIC PROVISIONS


 


9.01                           Principles of
Construction.  In the event of any
inconsistencies between the terms and conditions of this Article 4 and the
terms and conditions of this Instrument, the terms and conditions of this Article 4
shall control and be binding.


 


9.02                           Insert Other
State-Specific Provisions.


 


ARTICLE 10 — COMPLIANCE WITH CREDIT AGREEMENT


 


10.01                     Representations and
Warranties.  In addition to the
representations and warranties made by Grantor herein, Grantor hereby makes to
the Agent and the Lenders the representations and warranties set forth in the
Credit Agreement applicable to it, as if it were a party thereto, including,
without limitation, those contained in the following sections:  Sections 6.1(c) and (d), 6.2, 6.6, 6.7,
6.8, 6.9, 6.10, 6.12, 6.14, 6.15, 6.16, 6.17, 6.20, 6.23, 6.25, 6.26, 6.27,
6.28, 6.29, and 6.30.


 


10.02                     Covenants and
Agreements.  The Grantor covenants and
agrees that so long as any Loan or Note is outstanding that Grantor shall
comply with all of the covenants and agreements set forth in the Credit
Agreement applicable to it, as if it were a party thereto, including, without
limitation, those contained in the following sections:  Sections 7.2, 7.3, 7.4(e)(i) and (iii),
7.5(a), (b), (c), and (d), 7.6, 7.7 (to the extent required by Section 1.05
hereof), 7.8, 7.9, 7.10, 7.11, 7.12, 7.13, 7.14, 7.16, 7.19, 8.1, 8.2, 8.3,
8.4, 8.5, 8.6, 8.8, 8.10, 8.12, 8.13, 8.14, 18.9, 21, and 25.  For purposes of Sections 7.5(a), (b), (c) and
(d) of the Credit Agreement, notice given to Agent by Borrower shall
satisfy any requirement that Grantor deliver notice under the relevant section.


 


27

















 


IN WITNESS WHEREOF,
Grantor and Trustee have executed this Instrument as of the day and year first
above written.


 


	
   

  	
   

  	
  GRANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  , a

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President - Corporate
  Development & Legal

  



 


 


[SIGNATURES
CONTINUED ON NEXT PAGE]


 

















 


	
   

  	
   

  	
  TRUSTEE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  , a

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [SEAL]

  



 


 


[SIGNATURES
CONTINUED ON NEXT PAGE]


 


29

















 


ACKNOWLEDGMENT


 


	
  THE STATE OF                                                                               

  	
  §

  
	
   

  	
  §

  
	
  COUNTY OF                                                                                    

  	
  §

  



 


This instrument was acknowledged before me on
                          ,
20    , by Gerald J. Reihsen, III, as Executive Vice
President - Corporate Development & Legal of                                                                                             ,
a                                                 ,
on behalf of said
                                                .


 


	
  (SEAL)

  
	
   

  	
  Notary Public in and for

  
	
   

  	
  the State of                    

  
	
   

  	
   

  
	
  My Commission Expires:

  	
  Print Name of Notary:

  
	
   

  	
   

  
			



 


[SIGNATURES
CONTINUED ON NEXT PAGE]


 


30
















 


ACKNOWLEDGMENT


 


	
  THE STATE OF                                                                               

  	
  §

  
	
   

  	
  §

  
	
  COUNTY OF                                                                                    

  	
  §

  



 


This instrument was
acknowledged before me on
                          ,
20    , by                                                ,
as                       of
                                                        ,  a
                                          ,
on behalf of said
                                    .


 


	
  (SEAL)

  
	
   

  	
  Notary Public in and for

  
	
   

  	
  the State of                    

  
	
   

  	
   

  
	
  My Commission Expires:

  	
  Print Name of Notary:

  
	
   

  



 


31

















 


EXHIBIT “A”
TO FORM OF DEED OF TRUST


 


LEGAL
DESCRIPTION


 


1

















 


EXHIBIT “B”


 


Permitted Encumbrances


 


Permitted
encumbrances are such matters as are shown on Schedule [B], Part [I] to
the pro forma Title Insurance Commitment No.                                   
dated                                ,
last revised                                       
issued by                                                     
to the Agent in connection with this Instrument.


 


1

















 


EXHIBIT “C” TO FORM OF DEED OF
TRUST


 


Schedule 1


(Description of “Debtor” and “Secured
Party”)


 


A.                                   Debtor:


 


1.                                       , a
                                          
organized under the laws of the State of
                          .  Debtor has been using or operating under said
name and identity or corporate structure without change since
                          .


 


Names and Tradenames used within last five years: 
                                              .


 


Location of all chief executive offices over last five years:


 


[15601 Dallas Parkway, Suite 600, Addison,  Texas 75001]


 


Organizational Number:


 


Federal Tax Identification Number:


 


B.                                     Secured Party:


 


KEYBANK NATIONAL ASSOCIATION, a national banking
association, as Agent.


 


1

















 


Schedule 2


 


(Notice Mailing Addresses of “Debtor”
and “Secured Party”)


 


A.                                   The mailing address of Debtor is:


 


c/o Behringer Harvard Operating Partnership I LP


15601 Dallas Parkway


Suite 600


Addison, TX 75001


Attn:  Gerald J.
Reihsen, III, Esq.


 


B.                                     The mailing address of Secured Party is:


 


KeyBank National Association


1200 Abernathy Road, N.E.


Suite 1550


Atlanta, Georgia 
30328


Attn:  Kevin Murray


 

















 


EXHIBIT G


 


FORM OF REQUEST FOR REVOLVING CREDIT LOAN


 


KeyBank National Association, as Agent

800 Superior 

Cleveland, Ohio 44114-1306

Attn:  Diana D’Aquila


 


Ladies and Gentlemen:


 


Pursuant to the provisions
of §2.7 of the Credit Agreement dated as of December 11, 20072007,
as amended by that certain First Amendment to Credit Agreement and Other Loan
Documents dated as of June 9, 2009 (as the same may
hereafter be amended, the “Credit Agreement”), by and among Behringer Harvard
Operating Partnership I LP (the “Borrower”), KeyBank National Association for
itself and as Agent, and the other Lenders from time to time party thereto, the
undersigned Borrower hereby requests and certifies as follows:


 


1.                                       Revolving Credit Loan.  The undersigned Borrower hereby requests a [Revolving Credit Loan under §2.1] [Swing Loan under §2.52.4] of the Credit Agreement:


 


Principal Amount: 
$                    


Type (LIBOR Rate, Base Rate):


Drawdown Date:


Interest Period for Revolving Credit LIBOR Rate Loans:


 


by credit to the general account of the Borrower with the
Agent at the Agent’s Head Office.


 


[If the requested Loan is a
Swing Loan and the Borrower desires for such Loan to be a Revolving
Credit LIBOR Rate Loan following its conversion as provided
in §2.52.4(d), specify the Interest
Period following
conversion:                                  ]


 


2.                                       Use of Proceeds. 
Such Loan shall be used for purposes permitted by §2.9 of the Credit
Agreement.


 


3.                                       No Default. 
The undersigned chief financial officer or chief accounting officer of
Borrower certifies on behalf of Borrower (and not in his individual capacity)
that the Borrower isand the Guarantors are and will be
in compliance with all covenants under the Loan Documents after giving effect
to the making of the Loan requested hereby and no Default or Event of Default
has occurred and is continuing.  Attached hereto is a Borrowing Base
Certificate setting forth a calculation of the Borrowing Base Availability
after giving effect to the Loan requested hereby.  No condemnation proceedings are pending or,
to the undersigned’s knowledge, threatened against any Mortgaged Property.


 


4.                                       Representations True.  The undersigned chief financial officer or
chief accounting officer of the Borrower certifies, represents and agrees on
behalf of the Borrower (and not in his individual capacity) that each of the
representations and warranties made by or on behalf of the Borrower, the
Guarantors or their respective Subsidiaries, contained in the Credit Agreement,
in 


 

















 


the other Loan Documents
or in any document or instrument delivered pursuant to or in connection with
the Credit Agreement was true in all material respects as of the date on which
it was made and, is true in all material respects as of the date hereof and
shall also be true at and as of the Drawdown Date for the Loan requested
hereby, with the same effect as if made at and as of such Drawdown Date, except
to the extent of changes resulting from transactions permitted by the Loan
Documents and except as previously disclosed in writing by the Borrower to
Agent and approved by the Agent in writing (which disclosures shall be deemed
to amend the Schedules and other disclosures delivered as contemplated in this
Agreement (it being understood and agreed that any representation or warranty
which by its terms is made as of a specified date shall be required to be true
and correct only as of such specified date).


 


5.                                       Other Conditions. 
The undersigned chief financial officer or chief accounting officer of
the Borrower certifies, represents and agrees on behalf of the Borrower (and
not in his individual capacity) that all other conditions to the making of the
Loan requested hereby set forth in the Credit Agreement have been satisfied or
waived in writing.


 


6.                                       Definitions. 
Terms defined in the Credit Agreement are used herein with the meanings
so defined.


 


IN WITNESS WHEREOF, the
undersigned has duly executed this request this
           day of
                          ,
200    .


 


	
   

  	
  BEHRINGER HARVARD OPERATING 

  PARTNERSHIP I LP, a Texas limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  BHR, Inc., a
  Delaware corporation, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 

















 


EXHIBIT FH


 


FORM OF LETTER OF CREDIT REQUEST


 


[DATE]


 


KeyBank National Association, as Agent

1675 Broadway, Suite 400

Denver, Colorado  80202

Attn:  Cheryl Van Klompenberg


 


Re:                             Letter of Credit Request under Credit Agreement
dated as of December 11, 2007


 


Ladies and Gentlemen:


 


Pursuant to §2.102.9
of the Credit Agreement dated as of December 11, 2007, as
amended by that certain First Amendment to Credit Agreement and Other Loan
Documents, by and among you, certain other Lenders and
Behringer Harvard Operating Partnership I LP (the “Borrower”) (the “Credit
Agreement”), we hereby request that you issue a Letter of Credit as follows:


 


(i)                                     Name and address of beneficiary:


 


(ii)                                  Face amount: $


 


(iii)                               Proposed Issuance Date:


 


(iv)                              Proposed Expiration Date:


 


(v)                                 Other terms and conditions as set forth in the
proposed form of Letter of Credit attached hereto.


 


(vi)                              Purpose of Letter of Credit:


 


This Letter of Credit
Request is submitted pursuant to, and shall be governed by, and subject to
satisfaction of, the terms, conditions and provisions set forth in §2.102.9
of the Credit Agreement.


 


The undersigned chief
financial officer or chief accounting officer of the Borrower certifies on
behalf of the Borrower (and not in his individual capacity) that the Borrower
is and will be in compliance with all covenants under the Loan Documents after
giving effect to the


FH-1

















 


issuance of the Letter of Credit requested hereby and no
Default or Event of Default has occurred and is continuing.  Attached hereto is a Borrowing Base
Certificate setting forth a calculation of the Borrowing Base Availability
after giving effect to the Letter of Credit requested hereby.  No condemnation proceedings are pending or,
to the undersigned’s knowledge, threatened against any Mortgaged Property.


 


We also understand that if
you grant this request this request obligates us to accept the requested Letter
of Credit and pay the issuance fee and Letter of Credit fee as required by §2.102.9(e).  All capitalized terms defined in the Credit
Agreement and used herein without definition shall have the meanings set forth
in §1.1 of the Credit Agreement.


 


The undersigned chief
financial officer or chief accounting officer of the Borrower certifies,
represents and agrees on behalf of the Borrower (and not in his individual
capacity) that each of the representations and warranties made by or on behalf
of the Borrower, the Guarantors or their respective Subsidiaries, contained in
the Credit Agreement, in the other Loan Documents or in any document or
instrument delivered pursuant to or in connection with the Credit Agreement was
true in all material respects as of the date on which it was made, is true as
of the date hereof and shall also be true at and as of the proposed issuance
date of the Letter of Credit requested hereby, with the same effect as if made
at and as of the proposed issuance date, except to the extent of changes
resulting from transactions permitted by the Loan Documents and except as
previously disclosed in writing by the Borrower to Agent and approved by the
Agent in writing (which disclosures shall be deemed to amend the Schedules and
other disclosures delivered as contemplated in this Agreement (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct only as of such
specified date).


 


Very truly yours,


 


	
   

  	
  BEHRINGER HARVARD OPERATING

  PARTNERSHIP I LP, a Texas limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  BHR, Inc., a
  Delaware corporation, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


FH-2

















 


EXHIBIT GI


 


FORM OF
BORROWING BASE CERTIFICATE


 


BORROWING BASE WORKSHEET


 


	
  A.

  	
   

  	
  Borrowing Base Value Test: Aggregate Amount of
  Appraised Value of each Mortgaged Property plus, during the Initial Term, the
  incurred costs of Three Eldridge Place, or during the Extension Term, the
  Appraised Value of the Three Eldridge Place (contribution of Three Eldridge
  Place to Borrowing Base Value not to exceed 25% of the Borrowing Base Value
  until it becomes a Stabilized Property)

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [See attached spreadsheet
  listing values]

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
   

  	
  60% of Borrowing Base Value during Initial Term,
  or 57.5% of Borrowing Base Value during Extension Term

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
   

  	
  Sum of Debt Service Coverage Amounts for each
  Mortgaged Property

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [See Attached Spreadsheet]

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.

  	
   

  	
  Borrowing Base Availability:  Lesser of B or C

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  



 


GI-1
















 


EXHIBIT J


 


FORM OF COMPLIANCE CERTIFICATE


 


KeyBank National Association, as Agent

127 Public Square

Cleveland, Ohio 44114-1306

Attn:  Joshua Mayers


 


Ladies and Gentlemen:


 


Reference is made to the
Credit Agreement dated as of December 11, 20072007, as amended by that certain First Amendment to Credit Agreement and
Other Loan Documents dated as of June 9, 2009 (as the same may
hereafter be amended, the “Credit Agreement”) by and among Behringer Harvard
Operating Partnership I LP (the “Borrower”), KeyBank National Association for
itself and as Agent, and the other Lenders from time to time party
thereto.  Terms defined in the Credit
Agreement and not otherwise defined herein are used herein as defined in the
Credit Agreement.


 


Pursuant to the Credit
Agreement, the Borrower is furnishing to you herewith (or has most recently
furnished to you) the consolidated financial statements of the Borrower for the
fiscal period ended                               
(the “Balance Sheet Date”).  Such
financial statements have been prepared in accordance with GAAP and present
fairly the consolidated financial position of the Borrower at the date thereof
and the results of its operations for the periods covered thereby.


 


This certificate is
submitted in compliance with requirements of §2.11(d5.3(a), 5.3(b), 5.4(b), 5.7(b), §7.4(c), §8.1, §10.12 or §11.3 of
the Credit Agreement.  If this
certificate is provided under a provision other than §7.4(c), the calculations
provided below are made using the consolidated financial statements of the Borrower
as of the Balance Sheet Date adjusted in the best good faith estimate of the Borrower
to give effect to the making of a Loan, issuance of a Letter of Credit,
acquisition or disposition of property or other event that occasions the preparation
of this certificate; and the nature of such event and the estimate of the Borrower
of its effects are set forth in reasonable detail in an attachment hereto.  The undersigned officer is the chief
financial officer or chief accounting officer of the Borrower.


 


The undersigned
representative has caused the provisions of the Loan Documents to be reviewed
and has no knowledge of any Default or Event of Default. (Note: If the signer
does have knowledge of any Default or Event of Default, the form of certificate
should be revised to specify the Default or Event of Default, the nature
thereof and the actions taken, being taken or proposed to be taken by the
Borrower with respect thereto.)


 


The undersigned is
providing the attached information to demonstrate compliance as of the date
hereof with the covenants described in the attachment hereto.


 

















 


IN WITNESS WHEREOF, the
undersigned has duly executed this Compliance Certificate on behalf of the
Borrower (and not in his individual capacity) this           
day of                       ,
200    .


 


	
   

  	
  BEHRINGER HARVARD OPERATING

  PARTNERSHIP I LP, a Texas limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  BHR, Inc., a
  Delaware corporation, its

  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 

















 


APPENDIX TO COMPLIANCE CERTIFICATE


 

















 


WORKSHEET


 


GROSS ASSET VALUE*


 


	
  A.

  	
   

  	
  Stabilized Properties
  owned for prior six (6) fiscal quarters (other than 222 Riverside Plaza
  and, 1325 G Street, the IPC Portfolio and the Beacon Portfolio):

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Net Operating Income for
  the prior four (4) consecutive fiscal quarters:

  	
   

  	
  $

  	
            

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Capital Reserves for
  such Real Estate:

  	
   

  	
  $

  	
            

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  1 minus 2 divided
  by 7.50%:

  	
   

  	
  $

  	
            

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
   

  	
  The acquisition
  cost of Real Estate acquired during the prior six (6) fiscal quarters (other
  than 222 Riverside Plaza and, 1325
  G Street, the IPC Portfolio and the Beacon
  Portfolio):

  	
   

  	
  $

  	
            

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
   

  	
  Construction in Progress
  of Development Properties, until the earlier of (x) the 1 year
  anniversary of the project completion for such Real Estate and (y) the
  first day of the first fiscal quarter following the date such Real Estate
  first achieves a Lease Rate of at least 85%:

  	
   

  	
  $

  	
            

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.

  	
   

  	
  Acquisition cost of 222
  Riverside Plaza and, 1325 G Street, the IPC Portfolio and the Beacon Portfolio:

  	
   

  	
  $

  	
            

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E.

  	
   

  	
  Aggregate of
  Unrestricted Cash and Cash Equivalents:

  	
   

  	
  $

  	
            

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  F.

  	
   

  	
  Book Value of Land
  Assets:

  	
   

  	
  $

  	
            

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  G.

  	
   

  	
  Lesser of book value or
  outstanding principal balance of Mortgage Receivables secured by office
  properties and the Multifamily Facility

  	
   

  	
  $

  	
            

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  H.

  	
   

  	
  Investments in bonds of Publicly Traded REITs
  (as defined in §8.3(p)) (limited to office, industrial, self-storage,
  multi-family or retail Publicly Traded REITs) valued at the lesser of cost or
  value per GAAP; plus

  	
   

  	
  $

  	
            

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  I.

  	
   

  	
  Investments in preferred or common stock of
  Publicly Traded REITs (limited to office, industrial, self-storage,
  multi-family or retail Publicly Traded REITs) valued at the lesser of cost or
  value per GAAP; plus

  	
   

  	
  $

  	
            

  



 

















 


	
  J.

  	
   

  	
  Investments in Mezzanine Mortgage Receivables
  valued at the lesser of cost or value per GAAP.

  	
   

  	
  $

  	
            

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  K.H.

  	
   

  	
  Pro rata share of Gross
  Asset Value attributable to such assets owned by Unconsolidated Affiliates:

  	
   

  	
  $

  	
            

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Gross Assets Value equals sum of A.3 plus B plus C plus
  D plus E plus F plus G plus H plus I plus J plus K

  	
   

  	
  $

  	
            

  



 






*  Gross Asset Value will be adjusted, as
appropriate, for acquisitions, dispositions and other changes to the portfolio
during the calendar quarter most recently ended prior to a date of
determination.  All income, expense and
value associated with assets included in Gross Asset Value disposed of during
the four (4) calendar quarter period most recently ended prior to a date
of determination will be eliminated from calculations. Gross Asset Value shall
be calculated in accordance with §1.2(l).


 

















 


EXHIBIT HK


 


FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT


 


THIS
ASSIGNMENT AND ACCEPTANCE AGREEMENT (this “Agreement”) dated                                         ,
by and between                                                         
(“Assignor”), and                                                         
(“Assignee”).


 


W I T N E S S E T H:


 


WHEREAS, Assignor is a party to that certain Credit
Agreement, dated December 11, 2007, as
amended by that certain First Amendment to Credit Agreement and Other Loan
Documents dated as of June 9, 2009, by and among BEHRINGER
HARVARD OPERATING PARTNERSHIP I LP (“Borrower”), the other lenders
that are or may become a party thereto, and KEYBANK
NATIONAL ASSOCIATION, individually and as Agent (the “Credit
Agreement”); and


 


WHEREAS, Assignor desires to transfer to Assignee [Describe assigned Commitment] under the Credit Agreement and
its rights with respect to the Commitment assigned and its Outstanding Loans
with respect thereto;


 


NOW,
THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars ($10.00)
and other good and valuable considerations, the receipt and sufficiency of
which are hereby acknowledged, Assignor and Assignee hereby agree as follows:


 


7.                                       1. Definitions.  Terms
defined in the Credit Agreement and used herein without definition shall have
the respective meanings assigned to such terms in the Credit Agreement.


 


8.                                       2. Assignment.


 


(a)                                  Subject to the terms and conditions of this
Agreement and in consideration of the payment to be made by Assignee to
Assignor pursuant to Paragraph 5 of this Agreement, effective as of the “Assignment
Date” (as defined in Paragraph 7 below), Assignor hereby irrevocably sells,
transfers and assigns to Assignee, without recourse, a portion of its [Revolving Credit][Term Loan] Note in the amount of
$                              
representing a $                              
[Revolving Credit] [Term Loan] Commitment, and a                                   
percent (          %)[ Revolving Credit][Term Loan] Commitment Percentage,
and a corresponding interest in and to all of the other rights and obligations
under the Credit Agreement and the other Loan Documents relating thereto (the
assigned interests being hereinafter referred to as the “Assigned Interests”),
including Assignor’s share of all outstanding [Revolving
Credit][Term] Loans with respect to the
Assigned Interests and the right to receive interest and principal on and all
other fees and amounts with respect to the Assigned Interests, all from and
after the Assignment Date, all as if Assignee were an original Lender under and
signatory to the Credit Agreement having a [Revolving
Credit][Term Loan] Commitment Percentage
equal to the amount of the respective Assigned Interests.


 


(b)                                 Assignee, subject to the terms and conditions
hereof, hereby assumes all obligations of Assignor with respect to the Assigned
Interests from and after the Assignment 


 


HK-1

















 


Date as if Assignee were
an original Lender under and signatory to the Credit Agreement, which
obligations shall include, but shall not be limited to, the obligation to make [Revolving Credit][Term] Loans to the Borrower with
respect to the Assigned Interests and to indemnify the Agent as provided
therein (such obligations, together with all other obligations set forth in the
Credit Agreement and the other Loan Documents are hereinafter collectively
referred to as the “Assigned Obligations”). 
Assignor shall have no further duties or obligations with respect to,
and shall have no further interest in, the Assigned Obligations or the Assigned
Interests.


 


9.                                       3. Representations and Requests of Assignor.


 


(a)                                  Assignor represents and warrants to Assignee (i) that
it is legally authorized to, and has full power and authority to, enter into
this Agreement and perform its obligations under this Agreement; (ii) that
as of the date hereof, before giving effect to the assignment contemplated
hereby the principal face amount of Assignor’s [Revolving
Credit][Term Loan] Note is $                        
and the aggregate outstanding principal balance of the [Revolving
Credit][Term] Loans made by it equals Note is $                        ,
and (iii) that it has forwarded to the Agent the [Revolving
Credit][Term Loan] Note held by
Assignor.  Assignor makes no
representation or warranty, express or implied, and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with the Loan Documents or the execution, legality, validity,
enforceability, genuineness or sufficiency of any Loan Document or any other
instrument or document furnished pursuant thereto or in connection with the
Loan, the collectability of the Loans, the continued solvency of the Borrower
or the continued existence, sufficiency or value of the Collateral or any
assets of the Borrower which may be realized upon for the repayment of the
Loans, or the performance or observance by the Borrower of any of its
obligations under the Loan Documents to which it is a party or any other
instrument or document delivered or executed pursuant thereto or in connection
with the Loan; other than that it is the legal and beneficial owner of, or has
the right to assign, the interests being assigned by it hereunder and that such
interests are free and clear of any adverse claim.


 


(b)                                 Assignor requests that the Agent obtain
replacement notes for each of Assignor and Assignee as provided in the Credit
Agreement.


 


10.                                 4. Representations of Assignee.  Assignee makes and confirms to the Agent,
Assignor and the other Lenders all of the representations, warranties and
covenants of a Lender under Articles 14 and 18 of the Credit Agreement.  Without limiting the foregoing, Assignee (a) represents
and warrants that it is legally authorized to, and has full power and authority
to, enter into this Agreement and perform its obligations under this Agreement;
(b) confirms that it has received copies of such documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Agreement; (c) agrees that it has and will, independently
and without reliance upon Assignor, any other Lender or the Agent and based
upon such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in evaluating the Loans, the Loan
Documents, the creditworthiness of the Borrower and the value of the assets of
the Borrower, and taking or not taking action under the Loan Documents; (d) appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers as are reasonably incidental thereto pursuant to the terms
of the Loan Documents; (e) agrees that, by this Assignment, Assignee has
become a party to and will perform in accordance with their terms all the
obligations which by the terms of the Loan 


 


HK-2

















 


Documents are required to
be performed by it as a Lender; (f) represents and warrants that Assignee
does not control, is not controlled by, is not under common control with and is
otherwise free from influence or control by, the Borrower or REIT, (g) represents
and warrants that if Assignee is not incorporated under the laws of the United
States of America or any State, it has on or prior to the date hereof delivered
to Borrower and Agent certification as to its exemption (or lack thereof) from
deduction or withholding of any United States federal income taxes and (h) if
Assignee is an assignee of any portion of the Revolving Credit Notes, Assignee
has a net worth as of the date hereof of not less than $100,000,000.00 unless
waived in writing by Borrower and Agent as required by the Credit Agreement.  Assignee agrees that Borrower may rely on the
representation contained in Section 4(i).


 


11.                                 5. Payments to Assignor. 
In consideration of the assignment made pursuant to Paragraph 1 of this
Agreement, Assignee agrees to pay to Assignor on the Assignment Date, an amount
equal to $                        
representing the aggregate principal amount outstanding of the [Revolving Credit][Term]  Loans owing to Assignor
under the Loan Agreement and the other Loan Documents with respect to the
Assigned Interests.


 


12.                                 6. Payments by Assignor. 
Assignor agrees to pay the Agent on the Assignment Date the registration
fee required by §18.2 of the Credit Agreement.


 


13.                                 7. Effectiveness.


 


(a)                                  The effective date for this Agreement shall be                               
(the “Assignment Date”).  Following the
execution of this Agreement, each party hereto shall deliver its duly executed
counterpart hereof to the Agent for acceptance and recording in the Register by
the Agent.


 


(b)                                 Upon such acceptance and recording and from and
after the Assignment Date, (i) Assignee shall be a party to the Credit
Agreement and, to the extent of the Assigned Interests, have the rights and
obligations of a Lender thereunder, and (ii) Assignor shall, with respect
to the Assigned Interests, relinquish its rights and be released from its
obligations under the Credit Agreement.


 


(c)                                  Upon such acceptance and recording and from and
after the Assignment Date, the Agent shall make all payments in respect of the
rights and interests assigned hereby accruing after the Assignment Date
(including payments of principal, interest, fees and other amounts) to
Assignee.


 


(d)                                 All outstanding Revolving
Credit LIBOR Rate Loans shall continue in effect for the remainder of their
applicable Interest Periods and Assignee shall accept the currently effective
interest rates on its Assigned Interest of each Revolving
Credit LIBOR Rate Loan.


 


14.                                 8. Notices.  Assignee
specifies as its address for notices and its Lending Office for all assigned
Loans, the offices set forth below:


 


HK-3

















 


	
  Notice Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attn:

  	
   

  	
   

  
	
   

  	
  Facsimile:

  	
   

  
				



 


	
  Domestic Lending Office:

  	
  Same as above

  
	
   

  	
   

  
	
  Eurodollar Lending
  Office:

  	
  Same as above

  



 


15.                                 9. Payment Instructions. 
All payments to Assignee under the Credit Agreement shall be made as
provided in the Credit Agreement in accordance with the separate instructions
delivered to Agent.


 


16.                                 10. Governing Law. 
THIS AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT FOR ALL
PURPOSES AND TO BE GOVERNED BY, AND PURSUANT TO NEW YORK GENERAL OBLIGATIONS
LAW SECTION 5-1401 SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REFERENCE TO CONFLICT OF LAWS).


 


17.                                 11. Counterparts.  This
Agreement may be executed in any number of counterparts which shall together
constitute but one and the same agreement.


 


18.                                 12. Amendments.  This
Agreement may not be amended, modified or terminated except by an agreement in
writing signed by Assignor and Assignee, and consented to by Agent.


 


19.                                 13. Successors.  This
Agreement shall inure to the benefit of the parties hereto and their respective
successors and assigns as permitted by the terms of Credit Agreement.


 


[signatures on following page]


 


HK-4

















 


IN WITNESS WHEREOF,
intending to be legally bound, each of the undersigned has caused this
Agreement to be executed on its behalf by its officers thereunto duly
authorized, as of the date first above written.


 


	
   

  	
  ASSIGNEE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 


RECEIPT ACKNOWLEDGED AND

ASSIGNMENT CONSENTED TO BY:


 


KEYBANK NATIONAL ASSOCIATION, as Agent


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  CONSENTED TO BY:(1)

  	
   

  
	
   

  	
   

  	
   

  
	
  BEHRINGER HARVARD OPERATING

  	
   

  
	
  PARTNERSHIP I LP, a Texas limited partnership

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  BHR, Inc., a Delaware corporation, its General Partner

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 






(1) Insert to extent required by Credit Agreement.


 


HK-5
















 


EXHIBIT IL


 


FORM OF LETTER OF CREDIT
APPLICATION


 


      KeyBank National Association


 


	
  Application and Agreement
  for Irrevocable Standby Letter of Credit

  
	
   

  	
   

  
	
  To: 
  International Standby Services Group

  4910 Tiedeman, 4th floor

  Brooklyn, Ohio 44144

  Mailcode: OH-01-51-0435

  Fax Number: (216) 813-3719

   

  	
  Date:

  
	
  Please issue your
  Irrevocable Letter of Credit and notify the Beneficiary by

     Swift          (Advising
  Bank Swift Address)                                                                                                                                         

     Courier       (Contact
  Name)
                                                                         (Telephone
  Number)

  
	
   

  	
   

  
	
  Beneficiary: (show full
  name & complete street address)

  	
  Applicant: (show full name
  & complete street address)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Expiration Date:

  	
  Dollar Amount $                        and
  currency if other than USD

  
	
   

  	
   

  
	
  

  Automatic Extension Clause

  	
  

  Days Notice:

  	
  (Amount in words):

  
	
   

  	
   

  
	
  Ultimate Expiration Date:

  	
   

  
	
   

  	
   

  
	
  Available by Drafts at
  sight drawn on you and accompanied by the following documents:

  
	
   

  	
  1.

  	
  Beneficiary’s statement
  signed by an authorized individual of (Beneficiary) certifying. “The
  Principal, (Applicant), has not performed or fulfilled all the undertakings,
  covenants and conditions in accordance with the terms of the agreement dated
                          between
  (Applicant) and (Beneficiary)”.

  
	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Beneficiary’s statement
  signed by an authorized individual or (Beneficiary) certifying. “We hereby
  certify that invoices under sales agreement between (Applicant) and
  (Beneficiary) have been submitted for payment and said invoices are past, due
  and payable”.

  
	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Beneficiary’s statement
  signed by an authorized individual of (Beneficiary) certifying. “We hereby
  certify that (Applicant) has failed to honor their contractual agreement
  dated                       between
  (Applicant) and (Beneficiary) and that payment has not been made and is                       past
  due.

  
	
   

  	
   

  	
   

  
	
   

  	
  4.

  	
  Beneficiary’s statement
  signed by one of its authorized individuals certifying that                               
  (Applicant) was the successful bidder under the Tender No.
                       
  dated
                           
  for supply of
                               
  and that                                    
  (Applicant) has withdrawn their bid or failed to enter into contract.

  
	
   

  	
   

  	
   

  
	
   

  	
  5.

  	
  Beneficiary’s statement
  signed by an authorized individual reading:                                          

  (Please indicate below the
  wording that is to appear in the statement to be presented.)

  
	
   

  	
   

  	
   

  
	
   

  	
  6.

  	
  No statement or document
  by the beneficiary other than a draft is required to be presented under this
  Letter of Credit.

  
	
   

  	
   

  	
   

  
	
  Partial Drawings:

  	
  o Permitted

  	
  o Not Permitted

  	
  Charges for: Applicant

  
	
   

  	
   

  	
   

  
	
  Special instructions or
  conditions:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Applicant shall keep and
  maintain Demand Deposit Account
  No.              at
  all times.  KeyBank is authorized to
  debit the Demand Deposit Account or any successor account to pay any amounts
  which become due by Applicant in connection with the Letter of Credit,
  including any fees charged to Applicant or the amount of any draw(s) made
  under the Letter of Credit by the Beneficiary.

  
	
   

  	
   

  	
   

  
	
  This application and
  agreement are subject to either the current uniform customs and practice for
  documentary credits established by the International Chamber of Commerce or
  the current International Standby Practices established by the International
  Chamber of Commerce, (whichever may be determined to be appropriate by
  Keycorp Affiliates under the circumstances), and to the terms and conditions
  set forth in the Letter of Credit Reimbursement and Security Agreement
  executed by the Applicant.

  
	
   

  
	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Date:

  	
   

  
	
  (Customer’s Signature)

  	
   

  	
  (Customer’s Bank Sign Here
  –

  if other than a Keycorp Affiliate)

  	
   

  	
   

  
													



 


1

















 


EXHIBIT M


 


FORM OF ASSIGNMENT AND SUBORDINATION

OF MANAGEMENT AGREEMENT


 


ASSIGNMENT AND SUBORDINATION OF MANAGEMENT AGREEMENT


 


The undersigned [HPT MANAGEMENT SERVICES LP, a Texas limited partnership]
(the “Manager”), which manages certain real property commonly known as                                
located at                               
(the “Property”) on behalf of                                           ,
a                                 
(Owner”) acknowledges that this Assignment and Subordination of Management
Agreement (this “Agreement”) is being executed and delivered to satisfy a
certain obligation of  Behringer
Harvard Operating Partnership I LP, a Texas limited partnership (the “Borrower”)
set forth in that certain Credit Agreement dated as of December 11, 2007,
as amended by that certain First Amendment to Credit Agreement and Other Loan
Documents dated as of the date hereof (together with all supplements,
amendments and restatements thereto, herein referred to as the “Loan Agreement”)
among Borrower, KEYBANK NATIONAL ASSOCIATION, a
national banking association (“KeyBank”), individually and as Agent (“Agent”)
for itself and the other lending institutions from time to time party to the
Loan Agreement (collectively, the “Lenders”). 
Any capitalized terms used herein but not defined herein shall have the
same meanings as are ascribed to them in the Loan Agreement.


 


Owner and Manager
hereby agree with Agent as follows:


 


20.                                The Manager acknowledges and understands that this Agreement is being
executed and delivered to satisfy a certain obligation of Borrower pursuant to
the Loan Agreement.


 


21.                                For purposes hereof, “Management Agreement” shall mean [that certain Fifth
Amended and Restated Property Management and Leasing Agreement dated May 15,
2008 between Behringer Harvard REIT I, Inc. (“REIT”), Borrower and
Manager, as amended by that certain First Amendment to the Fifth Amended and
Restated Property Management and Leasing Agreement dated June 25, 2008, as
amended by that certain Second Amendment to the Fifth Amended and Restated
Property Management and Leasing Agreement dated August 13, 2008, as
partially assigned to                       
pursuant to that certain Partial Assignment and Assumption of Fifth Amended and
Restated Property Management and Leasing Agreement dated September 25,
2008, and as affected by that certain Property Management and Leasing Agreement
Transfer dated April 1, 2008 between Manager, REIT, Borrower and BHRES,
pursuant to which the Manager engaged BHRES to perform with respect to the
Property, all of the Manager’s duties and obligations under the Management
Agreement that require a real estate broker license,][INSERT APPROPRIATE
DESCRIPTION OF MANAGEMENT AGREEMENT IF NOT THE SAME AS ABOVE] together with all
other permitted amendments and supplements thereto.


 


2

















 


22.                                 As additional collateral security for the Loan, the Owner hereby
conditionally transfers, sets over and assigns to Agent all of the Owners’
rights, title and interest in and to the Management Agreement, said transfer
and assignment to automatically become a present, unconditional assignment, at
Agent’s option, upon an Event of Default by Borrower under the Loan Agreement
or any of the other Loan Documents (the “Assignment”).


 


23.                                 The Manager hereby consents to the Assignment by the Owner of the Owners’
rights, title and interest in and to the Management Agreement and to each and
all of the terms and conditions thereof notwithstanding any terms to the
contrary in the Management Agreement. 
Manager agrees that, in the event Agent delivers written notice to the
Manager that Agent is exercising its rights under the Assignment to become the “Owner”
under the Management Agreement, the Manager will continue at Agent’s direction,
for a period not to exceed three (3) months unless otherwise agreed by
Manager and Agent, to perform services for Agent pursuant to and in accordance
with the terms of the Management Agreement provided that the fees of the
Manager which may be due or which thereafter become due for services rendered
are paid in accordance with the terms of the Management Agreement, irrespective
of any contrary instruments, direction or requests from the Owner.  However, it is expressly understood that
Agent neither assumes nor has any obligation to the Manager to exercise its
rights under the Assignment or to declare a default under any mortgage or any
other Loan Documents.  In the event Agent
exercises its rights under the Assignment, the Manager agrees that Agent shall
have no obligations or liabilities under the Management Agreement or this
Agreement for services performed by Manager prior to the time Agent exercises
its rights under the Assignment, but after Agent exercises its rights under the
Assignment to succeed to the Owners’ interests under the Management Agreement,
Agent shall be obligated for all services subsequently performed and shall be
bound by the terms and provisions contained therein.


 


24.                                 The Management Agreement, and any rights and claims of the Manager against
the Owner thereunder, is and shall be subject and subordinate in all respects
to (i) the Loan Documents and the rights and claims of the Agent and the
Lenders thereunder, and (ii) any and all modifications, amendments,
renewals, restatements or substitutions of the Loan Documents; provided,
however, that so long as no Event of Default has occurred under the Loan
Agreement, the Manager shall be entitled to receive, on a monthly basis, its management
fees for services rendered in accordance with the Management Agreement pursuant
to the payment procedures outlined therein. 
This Paragraph 5 shall be self-operative and no further instrument of
subordination shall be required.  If
requested, however, the Owner or the Manager shall execute and deliver such
further instruments as the Agent may deem reasonably necessary to effectuate
this subordination.


 


25.                                 In the event that there shall have occurred and be continuing an Event of
Default under the Loan Agreement or any other Loan Document, the Manager shall (i) unless
and until terminated by Agent in accordance with Paragraph 7 by the Manager in
accordance with Paragraph 9 below, as applicable, continue performance under
the Management Agreement in accordance with the terms thereof, and (ii) not
(a) demand or accept any payment under or in respect of the Management
Agreement or (b) take any action to obtain any interest in any of the
security described in and encumbered by the Loan Documents because of any
obligation under the Management Agreement; provided, however, that any such
compensation received by Manager shall be received by Manager as trustee for
Agent and shall be paid over to Agent on account of the indebtedness of
Borrower to the Lenders.  The Owner and
the Manager 


 


3

















 


understand, however, that nothing contained herein or in any of the other
Loan Documents shall be construed to obligate the Agent to perform or discharge
any of the obligations, duties or liabilities of the Owner under the Management
Agreement.


 


26.                                 Upon the occurrence of any default by any Owner under the terms of the
Management Agreement (including, but not limited to, nonpayment of fees due
Manager but not paid by reason of the subordination of fees provided for
herein) in respect of which Manager has elected to exercise any right or
remedy, the Manager shall, concurrently with Manager’s delivery of notice
thereof to Owner, provide the Agent with notice in writing thereof (which
notice may consist of a copy of the notice provided by Manager to Owner), and
after receipt of said notice, the Agent shall have the same time period within
which to cure said default as the Owner has under the Management Agreement
(plus an additional thirty (30) days) although the Owner and the Manager
understand that the Agent shall not have any obligation to do so.  Furthermore, the Owner and the Manager agree
that, notwithstanding anything to the contrary contained in the Management
Agreement, the Agent may immediately terminate, upon written notice to the
Manager and without the payment of any cancellation or termination fee or
penalty or other liability, the Management Agreement upon the occurrence and
during the continuance of an Event of Default under the Loan Agreement or any
other Loan Document.  In the event that
the Agent elects to terminate the Management Agreement in accordance with this
Paragraph 7, the Owner and the Manager understand and agree that the Manager
shall look solely to the Owner for any and all fees, charges or other sums
payable to the Manager under the Management Agreement, including any
out-of-pocket costs properly incurred by the Manager; provided, however, that
if the Agent has delivered to Manager a written notice that Agent has exercised
its rights to become the “Owner” under the Management Agreement pursuant to
Paragraph 4, and subsequently elects to terminate the Management Agreement
pursuant to this Paragraph 7, then the Manager may look to the Agent for
payment of such fees and costs incurred from the date Agent became the “Owner”
under the Management Agreement to the date of termination of the Management
Agreement to the extent provided in Paragraph 4.  If the Management Agreement shall be
terminated by the Agent in accordance with this Paragraph 7, the Manager agrees
to cooperate with the Agent to ensure a smooth transition to the new property
manager to be selected by the Agent.


 


27.                                 This Agreement shall inure to the benefit of the Agent and its successors
and assigns.  In the event of any
inconsistency or conflict with the provisions of this Agreement and the
provisions of the Management Agreement, the provisions of this Agreement shall
control.


 


28.                                 The Manager agrees that it shall not change, amend, modify in any material
respect or terminate the Management Agreement as it relates to the Property
without the Agent’s prior written approval in each instance, which approval
shall not be unreasonably withheld.  If
the Manager does so amend, modify or terminate the Management Agreement in
violation of this Paragraph 9, such amendment, modification or termination
shall be void ab initio with respect to the Property. Notwithstanding the
foregoing, the provisions of this Paragraph 9 shall not be deemed to limit or
otherwise restrict the right of the Manager to terminate the Management
Agreement in accordance with the terms of the Management Agreement by reason of
default by the Owner thereunder after compliance by Manager with Paragraph 7
hereof.


 


29.                                 This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of                   
(excluding the law applicable to conflicts and choice of law).


 


4

















 


30.                                 Without limiting the generality of any other provisions contained herein or
in the other Loan Documents, no failure on the part of the Agent or the Lenders
to exercise, and no delay in exercising, any right hereunder or under any of
the other Loan Documents shall operate as a waiver thereof, nor shall any
single or partial exercise of any right preclude any other or further exercise
thereof or the exercise of any other right. 
The rights and remedies of the Agent and the Lenders provided herein and
in the other Loan Documents are cumulative and are in addition to, and are not
exclusive of, any rights or remedies provided by law or in equity.


 


31.           Manager represents and warrants to the Agent that as of the date hereof (i) the
Management Agreement is in full force and effect and has not been amended,
modified, assigned, terminated or supplemented, (ii) the Manager is not in
default under the provisions of the Management Agreement and there is no
condition which, with the giving of notice and/or the lapse of time, would
constitute such a default and (iii) to the best of Manager’s knowledge,
the Owner is not in default under the provisions of the Management Agreement
and there is no condition which, with the giving of notice and/or the lapse of
time, would constitute such a default.


 


32.                                 This Agreement may not be amended, modified, terminated or supplemented
without the written approval of the Manager, the Owner and the Agent.


 


33.                                 This Agreement may be executed in several counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same instrument.


 


[Signatures Begin
on the Following Page]


 


5

















 


IN WITNESS WHEREOF,
the Manager, Agent and the Owner have executed and delivered this Agreement as
of the          day of                      ,
20   .


 


 


	
   

  	
  MANAGER:

  
	
   

  	
   

  	
   

  
	
   

  	
  [HPT
  MANAGEMENT SERVICES LP, a Texas limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:      

  	
  IMS, LLC, a                       
  limited liability company, its general partner]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:                                                                                    

  
	
   

  	
   

  	
  Name:                                                                               

  
	
   

  	
   

  	
  Title:                                                                                 

  



 


[Signatures
Continued On Next Page]


 


6

















 


	
   

  	
  AGREED
  AND CONSENTED TO:

  
	
   

  	
   

  
	
   

  	
  OWNER:

  
	
   

  	
   

  
	
   

  	
                                             ,
                                a
                       

  
	
   

  	
                                         

  
	
   

  	
   

  
	
   

  	
  By:                                                                                                 

  
	
   

  	
  Name:                                                                                            

  
	
   

  	
  Title:                                                                                              

  



 


[Signatures
Continued On Next Page]


 

















 


	
   

  	
  AGREED
  AND CONSENTED TO:

  
	
   

  	
   

  
	
   

  	
  AGENT:

  
	
   

  	
   

  
	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION, as Agent

  
	
   

  	
   

  
	
   

  	
  By:                                                                                                  

  
	
   

  	
  Name:                                                                                             

  
	
   

  	
  Title:                                                                                               

  



 


2
















 


SCHEDULE 1.1


 


LENDERS AND COMMITMENTS




REVOLVING CREDIT LOAN


 


	
  Name and Address

  	
   

  	
  Revolving Credit

  Commitment

  	
   

  	
  Revolving Credit

  Commitment Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  KeyBank National Association

  127 Public Square

  Cleveland, Ohio  44114-1306

  Attention:  Kevin Murray

  Telephone:  216-689-5986

  Facsimile:  216-689-4997

  	
   

  	
  $

  	
  45,000,000.0028,950,000.00

  	
   

  	
  1515.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wachovia Bank, National
  Association

  201 S. College Street,
  CP9

  NC1183

  Charlotte, NC 28288

  Attention:     Vincent
  Massey

  Telephone:   (704)-590-3321

  Facsimile:    (704)-715-0094

  	
   

  	
  $

  	
  45,000,000.0028,950,000.00

  	
   

  	
  1515.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Aareal Bank AGCapital Corporation

  Paulinenstrasse 15

  65189 Wiesbaden

  Germany

  250 Park Avenue, Suite 820

  New York, New York 
  10177

  Attention:     Petra FriedhoferChristian Berry

  Telephone:   +49-(0)611-348-2356(212) 508-4083

  Facsimile:    +49-(0)611-348-2757(917) 322-0285

  	
   

  	
  $

  	
  45,000,000.0028,950,000.00

  	
   

  	
  1515.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


1

















 


	
  Name and Address

  	
   

  	
  Revolving Credit

  Commitment

  	
   

  	
  Revolving Credit

  Commitment Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Westdeutsche Immobilienbank AG

  Grosse Bleiche 46

  55116 Mainz

  Germany

  Attention:     Klaus
  MayNanja Junge

  Telephone:   +49
  6131 9280 - 74287215

  Facsimile:    +49
  6131 9280 - 7490

  	
   

  	
  $

  	
  30,000,000.0019,300,000.00

  	
   

  	
  1010.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RBS Citizens, N.A. d/b/a
  Charter One

  1215 Superior Ave, 6th Floor

  Cleveland, OH 44114

  Attention:     R.J.
  Quinn

  Telephone:   (216)-277-0744

  Facsimile:    (216)-277-4607

  	
   

  	
  $

  	
  24,000,000.0015,440,000.00

  	
   

  	
  88.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fifth Third Bank, a
  Michigan banking corporation

  MD 1MOC2B

  5050 Kingsley Drive

  Cincinnati, OH 45263

  Attention:     Joyce
  Elam

  Telephone:   (513)-358-7336

  Facsimile:    (513)-358-3479

  	
   

  	
  $

  	
  24,000,000.0015,440,000.00

  	
   

  	
  88.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  National City Bank

  CREA

  2000 Auburn Drive, Suite 400

  Beachwood, OH 44122

  Attention:     Peggy
  Cramer

  Telephone:   (216)-488-9124

  Facsimile:    (216)-488-0214

  	
   

  	
  $

  	
  21,000,000.0013,510,000.00

  	
   

  	
  77.00

  	
  %

  



 


2

















 


	
  Name and Address

  	
   

  	
  Revolving Credit

  Commitment

  	
   

  	
  Revolving Credit

  Commitment Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Allied Irish Banks,
  P.L.C.

  2nd Floor, Iona House

  Shelbourne Road

  Ballsbridge, Dublin 4,
  Ireland

  Attention:     Berne
  Glynn/Peter Garvey

  Telephone:   +353
  1 641 6633 / 6636

  Facsimile:    +353
  1 641 6668

  	
   

  	
  $

  	
  18,000,000.0011,580,000.00

  	
   

  	
  66.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PNC Bank, National
  Association

  500 1st Avenue

  Pittsburgh, PA 15219

  Attention:     Colleen
  Mannerino

  Telephone:   (412)-760-7647

  Facsimile:    (412)-705-2124

  	
   

  	
  $

  	
  15,000,000.009,650,000.00

  	
   

  	
  55.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Citibank, N.A.

  8401 N. Central
  Expressway

  Suite 500

  Dallas, TX 75225

  Attention:    Kimberly
  Brand

  Telephone:   (972)-419-3454

  Facsimile:    (972)-419-3308

  	
   

  	
  $

  	
  15,000,000.009,650,000.00

  	
   

  	
  55.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of America, N.A.

  901 Main Street, 20th Floor

  TX1-492-20-06

  Dallas, TX 75202

  Attention:     Cindy
  King

  Telephone:   (214)-209-1925

  Facsimile:    (214)-209-1571

  	
   

  	
  $

  	
  12,000,000.007,720,000.00

  	
   

  	
  44.00

  	
  %

  



 


3

















 


	
  Name and Address

  	
   

  	
  Revolving Credit

  Commitment

  	
   

  	
  Revolving Credit

  Commitment Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Texas Capital Bank,
  National Association

  6060 N. Central
  Expressway

  Dallas, TX 75206

  Attention:     Claudia
  Watkins

  Telephone:   (972)-560-4525

  Facsimile:    (214)
  706-6849

  	
   

  	
  $

  	
  6,000,000.003,860,000.00

  	
   

  	
  22.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  300,000,000.00193,000,000.00

  	
   

  	
  100

  	
  %

  



 


4

















 


TERM LOAN


 


	
  Name and Address

  	
   

  	
  Term Loan 

  Commitment

  	
   

  	
  Term Loan

  Commitment Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  KeyBank National Association

  127 Public Square

  Cleveland, Ohio  44114-1306

  Attention:  Kevin Murray

  Telephone:  216-689-5986

  Facsimile:  216-689-4997

  	
   

  	
  $

  	
  42,000,000.00

  	
   

  	
  21

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wachovia Bank, National
  Association

  201 S. College Street,
  CP9

  NC1183

  Charlotte, NC 28288

  Attention:     Vincent
  Massey

  Telephone:   (704)-590-3321

  Facsimile:    (704)-715-0094

  	
   

  	
  $

  	
  30,000,000.00

  	
   

  	
  15

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Aareal Bank AG

  Paulinenstrasse 15

  65189 Wiesbaden

  Germany

  Attention:     Petra
  Friedhofer

  Telephone:   +49-(0)611-348-2356

  Facsimile:    +49-(0)611-348-2757

  	
   

  	
  $

  	
  30,000,000.00

  	
   

  	
  15

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Westdeutsche
  Immobilienbank AG

  Grosse Bleiche 46

  55116 Mainz

  Germany

  Attention:     Klaus
  May

  Telephone:   +49
  6131 9280 - 7428

  Facsimile:    +49
  6131 9280 - 7490

  	
   

  	
  $

  	
  20,000,000.00

  	
   

  	
  10

  	
  %

  



 


1
















 


	
  Name and Address

  	
   

  	
  Term Loan

  Commitment

  	
   

  	
  Term Loan

  Commitment Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RBS Citizens, N.A. d/b/a
  Charter One

  1215 Superior Ave, 6th Floor

  Cleveland, OH 44114

  Attention:     R.J.
  Quinn

  Telephone:   (216)-277-0744

  Facsimile:    (216)-277-4607

  	
   

  	
  $

  	
  16,000,000.00

  	
   

  	
  8

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fifth Third Bank, a
  Michigan banking corporation

  MD 1MOC2B

  5050 Kingsley Drive

  Cincinnati, OH 45263

  Attention:     Joyce
  Elam

  Telephone:   (513)-358-7336

  Facsimile:    (513)-358-3479

  	
   

  	
  $

  	
  16,000,000.00

  	
   

  	
  8

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  National City Bank

  CREA

  2000 Auburn Drive, Suite 400

  Beachwood, OH 44122

  Attention:     Peggy
  Cramer

  Telephone:   (216)-488-9124

  Facsimile:    (216)-488-0214

  	
   

  	
  $

  	
  14,000,000.00

  	
   

  	
  7

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PNC Bank, National
  Association

  500 1st Avenue

  Pittsburgh, PA 15219

  Attention:     Colleen
  Mannerino

  Telephone:   (412)-760-7647

  Facsimile:    (412)-705-2124

  	
   

  	
  $

  	
  10,000,000.00

  	
   

  	
  5

  	
  %

  



 


2

















 


	
  Name and Address

  	
   

  	
  Term Loan 

  Commitment

  	
   

  	
  Term Loan

  Commitment Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Citibank, N.A.

  8401 N. Central
  Expressway

  Suite 500

  Dallas, TX 75225

  Attention:     Kimberly
  Brand

  Telephone:   (972)-419-3454

  Facsimile:    (972)-419-3308

  	
   

  	
  $

  	
  10,000,000.00

  	
   

  	
  5

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of America, N.A.

  901 Main Street, 20th Floor

  TX1-492-20-06

  Dallas, TX 75202

  Attention:     Cindy
  King

  Telephone:   (214)-209-1925

  Facsimile:    (214)-209-1571

  	
   

  	
  $

  	
  8,000,000.00

  	
   

  	
  4

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Texas Capital Bank,
  National Association

  6060 N. Central
  Expressway

  Dallas, TX 75206

  Attention:     Claudia
  Watkins

  Telephone:   (972)
  560-4525

  Facsimile:    (214)
  706-6849

  	
   

  	
  $

  	
  4,000,000.00

  	
   

  	
  2

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  200,000,000.00

  	
   

  	
  100

  	
  %

  



 


3

















 


TOTAL COMMITMENTS


 


	
  Name

  	
   

  	
  Total Commitment

  	
   

  	
  Total Commitment

  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  KeyBank National Association

  	
   

  	
  $

  	
  87,000,000.00

  	
   

  	
  17.4

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wachovia Bank, National
  Association

  	
   

  	
  $

  	
  75,000,000.00

  	
   

  	
  15.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Aareal Bank AG

  	
   

  	
  $

  	
  75,000,000.00

  	
   

  	
  15.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Westdeutsche
  Immobilienbank AG

  	
   

  	
  $

  	
  50,000,000.00

  	
   

  	
  10.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RBS Citizens, N.A. d/b/a
  Charter One

  	
   

  	
  $

  	
  40,000,000.00

  	
   

  	
  8.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fifth Third Bank, a
  Michigan banking corporation

  	
   

  	
  $

  	
  40,000,000.00

  	
   

  	
  8.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  National City Bank

  	
   

  	
  $

  	
  35,000,000.00

  	
   

  	
  7.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Allied Irish Banks,
  P.L.C.

  	
   

  	
  $

  	
  18,000,000.00

  	
   

  	
  3.6

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PNC Bank, National
  Association

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  	
  5.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Citibank, N.A.

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  	
  5.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  20,000,000.00

  	
   

  	
  4.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Texas Capital Bank, National
  Association

  	
   

  	
  $

  	
  10,000,000.00

  	
   

  	
  2.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  500,000,000.00

  	
   

  	
  100.0

  	
  %

  



 


SCHEDULE 1.2


 


SUBSIDIARY GUARANTORS


 


(UPDATED
FROM TIME TO TIME BY AGENT)


 


June 9, 2009 Update


 


Behringer Harvard
Cyprus, LLC, a Colorado limited liability company


 


4

















 


Behringer Harvard Wayside, LLC, a Delaware limited
liability company


 


Behringer Harvard Centreport Office LP, a Texas limited
partnership


 


Behringer Harvard Texas Street LP, a Delaware limited
partnership


 


Behringer Harvard Eldridge Land LP, a Texas limited
partnership


 


IPC Maryland I
Holdings, LLC, a Delaware limited liability company


 


IPC Realty II, LLC,
a Delaware limited liability company


 


IPC Realty, LLC, a
Delaware limited liability company


 


IPC Commercial Properties,
LLC, a Delaware limited liability company


 


IPC LP/WP Holdings,
LLC, a Delaware limited liability company


 


IPC Fifth Third
Holdings, LLC, a Delaware limited liability company


 


IPC Metrocenter
Holdings, LLC, a Delaware limited liability company


 


IPC Crescent Center
Holdings, LLC, a Delaware limited liability company


 


IPC NOI Holdings, Inc.,
a Delaware corporation


 


IPC (US) Realty
Holdings III, Inc., a Delaware corporation


 


Woodcrest Road
Associates II, LLC, a Delaware limited liability company


 


Behringer Harvard
Equity Drive LP, a Delaware limited partnership


 


Behringer Harvard
City Centre Owner LLC, a Delaware limited liability company


 


IPC Florida III
Holdings, LLC, a Delaware limited liability company


 


IPC Florida III,
LLC, a Delaware limited liability company


 


Behringer Harvard
Briarlake Plaza LP, a Delaware limited partnership


 


5

















 


SCHEDULE 2.9


 


OUTSTANDING LETTERS OF CREDIT


 


None.


 


1

















 


SCHEDULE 4.3


 


ACCOUNTS


 


None.


 


1

















 


SCHEDULE 5.3


 


ELIGIBLE REAL ESTATE QUALIFICATION DOCUMENTS


 


With respect to any
parcel of Real Estate of the Borrower or a Subsidiary Guarantor proposed to be
included in the Collateral, each of the following:


 


(a)           Description of Property.  A narrative
description of the Real Estate, the improvements thereon and the tenants and
Leases relating to such Real Estate.


 


(b)           Security Documents.  (i) Such
Security Documents relating to such Real Estate as the Agent shall in good
faith require, duly executed and delivered by the respective parties thereto,
and (ii) such Security Documents relating to Equity Interests and/or
Distribution Interests as Agent may reasonably request, including any amendments
to or additional Security Documents, in order to grant to the Agent, for the
benefit of the Lenders, the best possible first priority lien and security
interest in as much of such Equity Interests and/or Distribution Interests (or
such portion thereof) as may be granted by the Borrower and any Subsidiary that
is a direct or indirect owner of such Real Estate.


 


(c)           Enforceability Opinion.  If required
by the Agent, the favorable legal opinion of counsel to Borrower or such
Subsidiary Guarantor, from counsel reasonably acceptable to the Agent and
qualified to practice in the State in which such Real Estate is located,
addressed to the Lenders and the Agent covering the enforceability of such
Security Documents and such other matters as the Agent shall reasonably
request.


 


(d)           Perfection of Liens.  Evidence
reasonably satisfactory to the Agent that the Security Documents are effective
to create in favor of the Agent a legal, valid and enforceable first lien or
security title and security interest in such Real Estate and that all filings,
recordings, deliveries of instruments and other actions necessary or desirable
to protect and preserve such liens or security title or security interests have
been duly effected.


 


(e)           Survey and Taxes.  The Survey of such
Real Estate, together with the Surveyor Certification and evidence of payment
of all real estate taxes, assessments and municipal charges on such Real Estate
which on the date of determination are required to have been paid under §7.8.


 


(f)            Title Insurance; Title Exception Documents. 
The Title Policy (or “marked” commitment/proforma policy for a Title
Policy) covering such Real Estate, including all endorsements thereto, and
together with proof of payment of all fees and premiums for such policy, and true
and accurate copies of all documents listed as exceptions under such policy.


 


(g)           UCC Certification.  A certification
from the Title Insurance Company, records search firm, or counsel satisfactory
to the Agent that a search of the appropriate public records disclosed no
conditional sales contracts, security agreements, chattel mortgages, leases of
personalty, financing statements or title retention agreements which affect any
property, rights or interests of the Borrower or such Subsidiary Guarantor that
are or are intended to be subject to the security interest, security title,
assignments, and mortgage liens created by the Security 


 


1

















 


Documents relating to such Real Estate except to the extent that the same
are discharged and removed prior to or simultaneously with the inclusion of the
Real Estate in the Collateral.


 


(h)           Management Agreement.  A true copy of
the Management Agreement, if any, relating to such Real Estate, which shall be
in form and substance reasonably satisfactory to the Agent.


 


(i)            Subordination of Management Agreement. 
A subordination of management agreement, which shall be in form and
substance reasonably satisfactory to the Agent.


 


(j)            Leases.  True copies of all Leases
relating to such Real Estate together with Lease Summaries for all such Leases
if available, and a Rent Roll for such Real Estate certified by the Borrower or
Subsidiary Guarantor as accurate and complete as of a recent date, each of
which shall be in form and substance reasonably satisfactory to the Required
Lenders.


 


(k)           Lease Form.  The form of Lease, if
any, to be used by the Borrower or such Subsidiary Guarantor in connection with
future leasing of such Mortgaged Property, which shall be in form and substance
reasonably satisfactory to the Agent.


 


(l)            Subordination Agreements.  A
Subordination, Attornment and Non-Disturbance Agreement from Major Tenants of
such Real Estate, and from other tenants of such Real Estate as required by the
Agent.


 


(m)          Estoppel Certificates.  Estoppel
certificates from Major Tenants of such Real Estate, and from other tenants of
such Real Estate as required by Agent, such certificates to be dated not more
than thirty (30) days prior to the inclusion of such Real Estate in the
Collateral (unless extended in Agent’s reasonable discretion, but in any case,
not to exceed 60 days), each such estoppel certificate to be in form and
substance reasonably satisfactory to the Agent.


 


(n)           Certificates of Insurance.  Each of (i) a
current certificate of insurance as to the insurance maintained by the Borrower
or such Subsidiary Guarantor on such Real Estate (including flood insurance if
necessary) from the insurer or an independent insurance broker dated as of the
date of determination, identifying insurers, types of insurance, insurance
limits, and policy terms; (ii) certified copies of all policies evidencing
such insurance (or certificates therefor signed by the insurer or an agent
authorized to bind the insurer); and (iii) such further information and
certificates from the Borrower or such Subsidiary Guarantor, its insurers and
insurance brokers as the Agent may reasonably request, all of which shall be in
compliance with the requirements of this Agreement.


 


(o)           Property Condition Report.  A
property condition report from a firm of professional engineers or architects
selected by Borrower and reasonably acceptable to Agent (the “Inspector”)
satisfactory in form and content to the Agent and the Required Lenders, dated
not more than ninety (90) days prior to the inclusion of such Real Estate in
the Collateral, addressing such matters as the Agent and the Required Lenders
may reasonably require.


 


(p)           Hazardous Substance Assessments.  A
hazardous waste site assessment report addressed to the Agent (or the subject
of a reliance letter addressed to, and in a form reasonably satisfactory to,
the Agent) concerning Hazardous Substances and asbestos on such Real Estate 


 


2

















 


dated or updated not more than ninety (90) days prior to the inclusion of
such Real Estate in the Collateral, from the Environmental Engineer, such
report to contain no qualifications except those that are acceptable to the
Required Lenders in their reasonable discretion and to otherwise be in form and
substance reasonably satisfactory to the Agent in its sole discretion.


 


(q)           Zoning and Land Use Compliance.  Such
evidence regarding zoning and land use compliance as the Agent may require and
approve in its reasonable discretion.


 


(r)            Certificate of Occupancy.  A copy of
the certificate(s) of occupancy issued to the Borrower or any Subsidiary
for such parcel of Real Estate permitting the use and occupancy of the Building
thereon (or a copy of the certificates of occupancy issued for such parcel of
Real Estate and evidence satisfactory to the Agent that any previously issued
certificate(s) of occupancy is not required to be reissued to the Borrower
or any Subsidiary), or a legal opinion or certificate from the appropriate
authority reasonably satisfactory to the Agent that no certificates of
occupancy are necessary to the use and occupancy thereof.


 


(s)           Appraisal.  An Appraisal of such Real
Estate, in form and substance satisfactory to the Agent and the Required
Lenders as provided in §5.2 and dated not more than ninety (90) days prior to
the inclusion of such Real Estate in the Collateral.


 


(t)            Budget.  An operating and capital
expenditure budget for such Real Estate in form and substance reasonably
satisfactory to the Required Lenders.


 


(u)           Operating Statements.  Operating
statements for such Real Estate in the form of such statements delivered to the
Lenders under §7.4(e) covering each of the four fiscal quarters ending
immediately prior to the addition of such Real Estate to the Collateral, to the
extent available.


 


(v)           Rent Roll.  A copy of the most recent
Rent Roll for such Real Estate.


 


(w)          Environmental Disclosure.  Such
evidence regarding compliance with §6.20(d) as Agent may reasonably
require.


 


(x)            Subsidiary Guarantor Documents.  With
respect to Real Estate owned by a Subsidiary, the Joinder Agreement and such
other documents, instruments, reports, assurances, or opinions as the Agent may
reasonably require.


 


(y)           Additional Documents.  Such other agreements, documents,
certificates, reports or assurances as the Agent may reasonably require.


 


3
















 


SCHEDULE 6.3


 


TITLE
TO PROPERTIES


 


SPECIAL LESSEE ARRANGEMENTS


 


The properties located at 10
and 120 South Riverside, Chicago, Illinois (the “Riverside Properties) are
owned by 10/120 South Riverside Fee LLC (the “Riverside Fee Owner”).  The Riverside Fee Owner leases the Riverside
properties to 10/120 South Riverside Property LLC (the “Riverside Landlord”)
pursuant to a separate ground lease for each of the Riverside Properties.  Behringer Harvard REIT I, Inc.
indirectly owns both the Riverside Fee Owner and the Riverside Landlord and
acquired both entities simultaneously from the prior owner on November 1,
2007.   The ground leases were initially
entered into on July 1, 1965 and, that point in time, ownership of the fee
owner and the landlord for the Riverside Properties were not vested in a common
owner.   Through a series of transactions
over the years, the ownership of the fee owner and the landlord for the
Riverside properties became vested in a common owner.  The ground leases were kept in place because
the Riverside Landlord has entered into numerous subleases with tenants of the
office buildings located on the Riverside Properties and
predecessors-in-interest did not want to inadvertently terminate such subleases
by merging the Riverside Fee Owner and the Riverside Landlord into one
entity.  In addition, the existing loan
agreement for the acquisition financing for the Riverside Properties prohibits
any merger of the fee and leasehold estate under the ground leases.


 


The property located at 111
Woodcrest, Unit B, Cherry Hill, New Jersey (the “Woodcrest Senior Property”) is
owned by Woodcrest Road Associates, L.P. (the “Woodcrest Unit B Ground Owner”).  The Woodcrest Unit B Ground Owner leases the
Woodcrest Senior Property to Woodcrest Road Urban Renewal, LLC (the “Woodcrest
Unit B Lessee”) under a Ground Lease dated October 30, 2003.   The Woodcrest Unit B Lessee in turn
subleased the property back to the Woodcrest Unit B Ground Owner under a
Sublease also dated October 30, 2003. 
The Woodcrest Unit B Ground Owner is the party that has entered into
leases with the individual tenants in the building located on the Woodcrest
Senior Property.  The Woodcrest Senior
Property is benefited by a long term tax exemption granted to qualified urban
renewal entities that undertake redevelopment projects under a Financial
Agreement for Long Term Tax Exemption (commonly referred to as a “PILOT
Agreement” in New Jersey) dated October 30, 2003 between the Woodcrest
Unit B Lessee, as the qualified urban renewal entity, and Cherry Hill
Township.  The ground lease and sublease
structure were put in place in order to attempt to maximize the benefits of the
tax exemption and is a common structure used in New Jersey.  Behringer Harvard REIT I, Inc.
indirectly owns both the Woodcrest Unit B Owner and the Woodcrest Unit B Lessee
and acquired both entities simultaneously from the prior owner on January 11,
2006. The PILOT Agreement, as required by New Jersey law, provides that the tax
exemption is terminated in the event that the Woodcrest Senior Property is
conveyed to a third party, but permits a change in control of the qualified
urban renewal entity.  In order to
preserve the tax exemption and maximum benefits, it was therefore necessary to
acquire both entities and leave the previously existing structure in place.


 


1

















 


SCHEDULE
6.5


 


NO MATERIAL CHANGES


 


15 WAYSIDE — COGNOS LEASE


 


As previously disclosed to
Lender by email from Michael Ernst to Kevin Murray and Tim Klespies, dated May 8,
2009, Cognos, a subsidiary of IBM that subleases space at the 15 Wayside
property from Nokia, Inc., has placed its space on the sublease
market.  Cognos accounts for
approximately 106,000 square feet at the 15 Wayside property.


 


1650 Arch —
WolfBlock LLP


 


WolfBlock LLP, a law firm
that leased significant square footage at 1650 Arch, announced on March 23,
2009 that its partners had voted to dissolve the firm and notified us that
after April 30, 2009 it would no longer need its space except for approximately
6,000 square feet to handle wind-down and transitional matters.


 


Pursuant to the Sixth
Amendment to Office Lease, dated December 31, 2008, WolfBlock downsized
their space to 144,169 square feet and extended their lease term through July 31,
2021, but WolfBlock exercised an option to terminate the Sixth Amendment prior
to April 30, 2009, which reverted the lease back to its former status
under the Fifth Amendment to Office Lease, dated May 5, 2004, which
provided for 176,054 square feet that terminates on July 17, 2011.  In connection with exercising the termination
option, WolfBlock paid $532,500 of the approximately $854,500 termination
amounts due, with the remaining amount to be paid as part of a settlement
agreement.


 


Following the March 23,
2009 notification, we immediately began negotiations through local counsel of a
settlement agreement and orderly return of space.  Presently, WolfBlock has vacated most of the
space as a result of lawyer transitions to other firms and the expiration of
the 60-day WARN Act period for retaining employees.


 


Other than some minor
outstanding reconciliations, rent was paid through April 30, 2009.  Further, we have tentatively agreed to the
financial terms, which have been approved by landlord’s lender, of a settlement
agreement that is being drafted and finalized. 
The settlement agreement will provide in principle as follows:


 


1.  The lease will be terminated, effective as of
April 30, 2009, except for approximately 6,000 square feet of
transitional/wind-down space on the 19th floor.


 


2.  To the extent of available funds, WolfBlock
will commit to pay the landlord amounts broken down into various “tranches.”  The payments will be subject to the payment
of WolfBlock’s necessary wind-down expenses, such as salaries under the WARN
Act and the salaries of wind-down personnel and consultants and the payment of
WolfBlock’s secured loan


 


1

















 


to Wachovia Bank that was
originally $10 million and has been reduced to approximately $6 million.


 


3.  Subject to available funds from accounts
receivable collections, the first three tranches will equal an aggregate of
$6,101,400, which includes the remaining termination option payment mentioned
above.  A fourth tranche is triggered
only if, after payment to creditors, funds would be available to distribute to
WolfBlock partners; this tranche could potentially be an additional $4
million.  However, all tranche amounts
are contingent on accounts receivable collections and are not guaranteed.


 


4.  From May 1, 2009 until July 20,
2010, WolfBlock will lease 6,000 square feet (subject to early termination
rights by either party).  Until July 31,
2009, the rental rate will be $12.50 plus electric, and thereafter it will be
$24.50 plus applicable escalations.


 


5.  Additionally, WolfBlock will reimburse the
landlord for its legal fees and the legal fees of the landlord’s lender, up to
an amount presently being negotiated.


 


GENERAL ECONOMIC CONDITIONS


 


The commercial office real
estate industry’s performance is generally predicated on a sustained pattern of
job growth.  Recently, the overall United
States economy experienced declines, including recent and expected future job
losses, liquidity disruptions in the capital markets and recessionary concerns.  These matters may affect the financial
condition, prospects, operations and business activities of the REIT, the
Borrower, their respective Subsidiaries and the Mortgaged Properties.


 


2

















 


SCHEDULE 6.6


 


TRADEMARKS, TRADENAMES


 


 


Section 6.13 of the
Fifth Amended and Restated Advisory Management Agreement, as amended, between
Behringer Harvard REIT I, Inc. and Behringer Advisors, LLC provides:


 


“6.13 Name.  Behringer
Advisors LP and/or one or more of its Affiliates has a proprietary interest in
the names “Harvard” (for the businesses engaged in by the Company and its
Affiliates) and “Behringer” (for all purposes). 
Accordingly, and in recognition of this right, if at any time the
Company ceases to retain Behringer Advisors LP or an Affiliate thereof to
perform the services of Advisor, the Company will, promptly after receipt of
written request from Behringer Advisors LP, cease to conduct business under or
use the name “Harvard” or “Behringer” or any diminutive thereof and the Company
shall use its best efforts to change the name of the Company to a name that
does not contain the name “Harvard” or “Behringer” or any other word or words
that might, in the sole discretion of Behringer Advisors LP, be susceptible of
indication of some form of relationship between the Company and Behringer
Advisors LP or any Affiliate thereof. Consistent with the foregoing, it is
specifically recognized that Behringer Advisors LP or one or more of its
Affiliates has in the past and may in the future organize, sponsor or otherwise
permit to exist other investment vehicles (including vehicles for investment in
real estate) and financial and service organizations having “Harvard” or “Behringer”
as a part of their name, all without the need for any consent (and without the
right to object thereto) by the Company or its Board.”


 


1

















 


SCHEDULE
6.7


 


PENDING LITIGATION


 


None.


 


1

















 


SCHEDULE
6.10


 


UNPAID TAXES


 


Pennsylvania
Transfer Tax Assessment


 


On June 5, 2008,
Stanwix Street Associates LP (“Stanwix”), an indirect, wholly owned subsidiary
of Behringer Harvard Operating Partnership I LP, transferred 11 Stanwix Street,
located in Pittsburg, Pennsylvania, to the lender associated with the
property.  Because this transaction
involved the transfer of the real estate by deed in lieu of foreclosure, the
lender/owner maintained that the transfer was exempt from transfer tax pursuant
to Section 1102-C.3(15) of the Pennsylvania Tax Reform Code.


 


Following a decision on April 23,
2009 by the Board of Appeals of the Pennsylvania Department of Revenue against
the lender/owner, on April 28, 2009, Stanwix received an assessment for
transfer tax (including interest) from the Pennsylvania Department of Revenue
for $1,680,219.26.  The lender/owner
believes that the assessment is erroneous and is in the process of challenging
the assessment through appeal.


 


Florida
Sales Tax Audit


 


The State of Florida is
auditing IPC Florida I, LLC for the period of July 1, 2008 through March 31,
2009.  The audit is being conducted at
our request because based on a previous audit we determined that we had
underpaid sales tax and the audit process allows the auditor to waive any
penalties instead of amending sales tax returns.  In addition, we paid the amount of the tax we
believe is owed in advance of the audit.


 


1

















 


SCHEDULE 6.146.15


 


CERTAIN TRANSACTIONS


 


Advisory
Management Agreement


 


Behringer Advisors, LLC (“Behringer
Advisors”) provides certain services to Behringer Harvard REIT I, Inc. (“REIT”)
pursuant to the Fifth Amended Restated Advisory Management Agreement, as
amended, under which, among other things, REIT pays Behringer Advisors and its
affiliates the following fees or reimbursements:


 


·  acquisition
and advisory fees of up to 2.5% of (1) the purchase price of real estate
investments acquired directly by REIT, including any debt attributable to these
investments, or (2) when REIT makes an investment indirectly through
another entity, its pro rata share of the gross asset value of real estate
investments held by that entity;


 


·  0.5% of the
contract purchase price of the real estate assets REIT acquires or, with
respect to the making or purchase of a mortgage loan, up to 0.5% of the funds
advanced, for reimbursement of expenses related to making investments;


 


·  a debt
financing fee equal to 1% of the amount of any debt made available to it;


 


·  depending on
the nature of the asset at the time the fee is incurred, an annual asset
management fee of either (1) 0.6% of aggregate asset value for operating
assets or (2) 0.6% of total contract purchase price plus budgeted
improvement costs for development or redevelopment assets (each fee payable
monthly in an amount equal to one-twelfth of 0.6% of such total amount as of
the date it is determinable);


 


· 
reimbursements for costs and expenses paid or incurred to provide
services to REIT, including the costs of goods, services or materials used by
REIT and the salaries and benefits of persons employed by Behringer Advisors
and its affiliates and performing services for REIT; provided, however, no
reimbursement is made for salaries and benefits to the extent Behringer
Advisors receives a separate fee for the services provided; and


 


·  disposition
fees if Behringer Advisors or its affiliates provide a substantial amount of
services, as determined by the REIT’s independent directors, in connection with
the sale of one or more properties.  In
such event, REIT will pay Behringer Advisors or its affiliates an amount equal
to the lesser of (subject to the limitation set forth below): (a) one-half
of the brokerage commission paid or (b) 3% of the sales price of each
property sold.  This fee will not be
earned or paid unless and until the REIT’s stockholders have received total
distributions (excluding the 10% stock dividend paid on October 1, 2005)
in an amount equal to or greater than the sum of the aggregate capital
contributed by stockholders plus a 9% annual, cumulative, non-compounded return
thereon.


 


1

















 


On May 14, 2009,
Behringer Advisors waived $2.5 million of asset management fees for each of the
second and third quarter of 2009.


 


Property
Management and Leasing Agreement


 


Pursuant to the Fifth
Amended and Restated Property Management and Leasing Agreement, as amended  (the “Property Management Agreement”) between
REIT and HPT Management Services LP (“HPT Management”), an affiliate of
Behringer Advisors, REIT pays HPT Management and its affiliates fees for the
management, leasing and construction supervision of its properties, which may
be subcontracted to unaffiliated third parties. 
The management fees generally are equal to 3% of gross revenues of each
respective property; leasing commissions are based upon the customary leasing
commission applicable to the geographic location of the respective property;
and construction supervision fees generally are equal to an amount not greater
than 5% of all hard construction costs incurred in connection with capital
improvements, major building reconstruction and tenant improvements.  Further, REIT reimburses HPT Management for
costs and expenses paid or incurred to provide services to REIT, including
salaries and benefits of persons employed by HPT Management and its affiliates
and engaged in the operation, management, maintenance and leasing of REIT
properties.  In the event that REIT
contracts directly with a non-affiliated third party property manager in
respect of a property, REIT pays HPT Management and its affiliates an oversight
fee equal to 1% of gross revenues of the property managed.


 


2
















 


SCHEDULE
6.20(c)


 


Schedule 6.20 - Environmental Compliance


 


	
  PROPERTY

  	
   

  	
  LOCATION

  	
   

  	
  ENVIRONMENTAL
  CONCERN

  	
   

  	
  COMMENTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  222 Bloomingdale Road

  	
   

  	
  White Plains, NY

  	
   

  	
  Petroleum Release
  — 11/06

  	
   

  	
  Results from soil and
  ground water samples have been taken at the site since October 2007 and
  submitted to the NYSDEC (New York State Department of Environmental
  Conservation) in quarterly reports from November 2007 through
  May 2009. Testing indicates the impact is isolated to a relatively small
  area and has not migrated offsite. Results continue to indicate that the
  spill is contained to small area of the site.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14700 Royal Caribbean Blvd.

  	
   

  	
  Miramar, FL

  	
   

  	
  Soil
  Contamination Remediation — 6/07

  	
   

  	
  Elevated levels of
  arsenic were found in an approximately 1,000 square foot area of the
  property. The Broward County Environmental Protection Department approved a
  Remedial Action Plan to excavate soils within the impacted area and backfill
  with clean fill material, and following completion of the work in late 2007,
  issued a “No Further Action” letter on April 2, 2009.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  One Edgewater Street

  	
   

  	
  Staten Island, NY

  	
   

  	
  Managing offsite
  MGP contamination — 2003 thru 2009

  	
   

  	
  In late 2003, the New
  York State Department of Environmental Conservation required KeySpan (the
  current property owner of the Clifton MGP facility) to conduct sampling
  studies to determine potential offsite impacts related to the coal tar
  contamination from the Clifton MGP site. In May and December 2004,
  several soil borings, monitoring wells and soil vapor samples were taken at
  the property. Results of these sampling activities confirmed impacts to both
  soil and groundwater at the One Edgewater Street site primarily confined to
  the parking lot at the north end of the property. The NYSDEC approved
  KeySpan’s proposed workplan on November 16, 2005. Indoor air sampling at
  One Edgewater revealed no vapor intrusion at the site. The NYSDEC has
  accepted KeySpan’s work plan for the site and has provided an affirmative
  statement that no additional assessment/characterization is required. The
  NYSDEC has further instructed National Grid (the successor to KeySpan) to
  prepare a site management plan including a statement with respect to National
  Grid’s responsibility for incremental cost to off—site owners for MPG-related
  contamination and submit to ownership for review/comments

  	
  .

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Minnesota Center

  	
   

  	
  Minneapolis, MN

  	
   

  	
  Building was
  constructed on a closed private landfill.

  	
   

  	
  The building was
  constructed with a venting system to exhaust potential methane fumes from the
  soil beneath the building structure. The Minnesota Pollution Control Agency
  (MPCA) requires bi—weekly monitoring by building personnel of the rooftop
  exhaust fan to ensure proper operation throughout the year. There is an
  annual report sent to the MPCA that details the results of the bi-weekly
  inspections. No other work is required by the MPCA with respect to this
  matter.

  	
   

  



 


See disclosures in (c) above as well.


 


1
















 


SCHEDULE 6.20(d)


 


Schedule 6.20 - Environmental Compliance


 


	
  PROPERTY

  	
   

  	
  LOCATION

  	
   

  	
  ENVIRONMENTAL
  CONCERN

  	
   

  	
  COMMENTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  222 Bloomingdale Road

  	
   

  	
  White Plains, NY

  	
   

  	
  Petroleum Release
  — 11/06

  	
   

  	
  Results from soil and
  ground water samples have been taken at the site since October 2007 and
  submitted to the NYSDEC (New York State Department of Environmental
  Conservation) in quarterly reports from November 2007 through
  May 2009. Testing indicates the impact is isolated to a relatively small
  area and has not migrated offsite. Results continue to indicate that the
  spill is contained to small area of the site.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14700 Royal Caribbean Blvd.

  	
   

  	
  Miramar, FL

  	
   

  	
  Soil
  Contamination Remediation — 6/07

  	
   

  	
  Elevated levels of
  arsenic were found in an approximately 1,000 square foot area of the
  property. The Broward County Environmental Protection Department approved a
  Remedial Action Plan to excavate soils within the impacted area and backfill
  with clean fill material, and following completion of the work in late 2007,
  issued a “No Further Action” letter on April 2, 2009.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  One Edgewater Street

  	
   

  	
  Staten Island, NY

  	
   

  	
  Managing offsite
  MGP contamination — 2003 thru 2009

  	
   

  	
  In late 2003, the New
  York State Department of Environmental Conservation required KeySpan (the
  current property owner of the Clifton MGP facility) to conduct sampling
  studies to determine potential offsite impacts related to the coal tar
  contamination from the Clifton MGP site. In May and December 2004,
  several soil borings, monitoring wells and soil vapor samples were taken at
  the property. Results of these sampling activities confirmed impacts to both
  soil and groundwater at the One Edgewater Street site primarily confined to
  the parking lot at the north end of the property. The NYSDEC approved
  KeySpan’s proposed workplan on November 16, 2005. Indoor air sampling at
  One Edgewater revealed no vapor intrusion at the site. The NYSDEC has
  accepted KeySpan’s work plan for the site and has provided an affirmative
  statement that no additional assessment/characterization is required. The
  NYSDEC has further instructed National Grid (the successor to KeySpan) to
  prepare a site management plan including a statement with respect to National
  Grid’s responsibility for incremental cost to off—site owners for MPG-related
  contamination and submit to ownership for review/comments

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Minnesota Center

  	
   

  	
  Minneapolis, MN

  	
   

  	
  Building was
  constructed on a closed private landfill.

  	
   

  	
  The building was
  constructed with a venting system to exhaust potential methane fumes from the
  soil beneath the building structure. The Minnesota Pollution Control Agency
  (MPCA) requires bi—weekly monitoring by building personnel of the rooftop
  exhaust fan to ensure proper operation throughout the year. There is an
  annual report sent to the MPCA that details the results of the bi-weekly
  inspections. No other work is required by the MPCA with respect to this
  matter.

  	
   

  



 


See disclosures in (c) above as well.


 


1

















 


SCHEDULE 6.21(a)


 


SUBSIDIARIES OF REIT


 


Schedule
6.21(a) - Subsidiaries of REIT


 


	
  Legal Entity Name

  	
   

  	
  Domestic Juris

  	
   

  	
  Ownership

  	
   

  	
  Ownership Form

  	
   

  	
  Current Holdings

  	
   

  	
   

  	
   

  
	
  10/120 South Riverside
  Fee LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard 10/120
  South Riverside Plaza LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  10/120 South Riverside
  Property, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard 10/120
  South Riverside Plaza LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  200 South Wacker
  Property LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard 200
  South Wacker Drive LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  200 South Wacker
  Services, Inc.

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  222 South Riverside
  Property LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard South
  Riverside Holding Business Trust

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  17th Ludlow Property,
  L.L.C.

  	
   

  	
  Delaware

  	
   

  	
  IPC United Plaza, L.P.

  	
   

  	
  Direct

  	
   

  	
  89.90

  	
  %

  	
   

  	
   

  
	
  17th Ludlow Property,
  L.L.C.

  	
   

  	
  Delaware

  	
   

  	
  IPC United Plaza Fee
  Manager, Inc.

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  21 ESS, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Fifth Third
  Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Arch 1650 Partners, L.P.

  	
   

  	
  Delaware

  	
   

  	
  IPC Philadelphia
  Holdings LLC

  	
   

  	
  Direct

  	
   

  	
  99.9999

  	
  %

  	
   

  	
   

  
	
  Arch 1650 Partners, L.P.

  	
   

  	
  Delaware

  	
   

  	
  IPC Philadelphia
  Management LLC

  	
   

  	
  Direct

  	
   

  	
  0.0001

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard 10/120
  South Riverside Plaza Holding Business Trust

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard 101
  South Tryon GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard 101
  South Tryon LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard 101
  South Tryon GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard 101
  South Tryon LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard 10777
  Clay Road GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard 10777
  Clay Road LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard 10777
  Clay Road GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard 10777
  Clay Road LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard 1325 G
  Street, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard 200
  South Wacker Drive Holding Business Trust

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard 200
  South Wacker Drive LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard 200
  South Wacker Drive Holding Business Trust

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard 600
  Superior Avenue GP Holding, Inc.

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  1,000 shares

  	
   

  	
   

  	
   

  
	
  Behringer Harvard 600
  Superior Avenue GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard 600
  Superior Avenue GP Holding, Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard 600
  Superior Avenue LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard 600
  Superior Avenue GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard 600
  Superior Avenue LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard 945
  East Paces Ferry Road, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  (Alberta) ULC

  	
   

  	
  Alberta, Canada

  	
   

  	
  Behringer Harvard Cayman
  Ltd.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Alexander Road, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Ashford Perimeter H, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Briarlake Plaza GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Briarlake Plaza LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Briarlake Plaza GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Briarlake Plaza LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard Buena
  Vista Plaza GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard Buena Vista
  Plaza LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard Buena
  Vista Plaza GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard Buena
  Vista Plaza LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Burnett Plaza GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Burnett Plaza LP

  	
   

  	
  Texas

  	
   

  	
  Behringer Harvard
  Burnett Plaza GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Burnett Plaza LP

  	
   

  	
  Texas

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard Cayman
  Ltd.

  	
   

  	
  Cayman Islands

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  CentrePort Office GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  CentrePort Office LP

  	
   

  	
  Texas

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  CentrePort Office LP

  	
   

  	
  Texas

  	
   

  	
  Behringer Harvard
  CentrePort Office GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard City
  Centre Fee, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard City
  Centre Owner, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard City
  Centre Owner, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard City
  Centre Parent, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard City
  Centre Parent, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Colorado Building H, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Cyprus, LLC

  	
   

  	
  Colorado

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Downtown Plaza GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Downtown Plaza LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Downtown Plaza GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Downtown Plaza LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard El
  Camino Real GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard El
  Camino Real LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard El
  Camino Real GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard El
  Camino Real LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Eldridge Land GP, LLC

  	
   

  	
  Texas

  	
   

  	
  Behringer Harvard Operating
  Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Eldridge Land LP

  	
   

  	
  Texas

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Eldridge Land LP

  	
   

  	
  Texas

  	
   

  	
  Behringer Harvard
  Eldridge Land GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Eldridge Place GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Eldridge Place LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Eldridge Place GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer Harvard
  Eldridge Place LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  



 

















 


	
  Legal Entity Name

  	
   

  	
  Domestic
  Juris

  	
   

  	
  Ownership

  	
   

  	
  Ownership
  Form

  	
   

  	
  Current
  Holdings

  	
   

  	
   

  	
   

  
	
  Behringer
  Harvard Equity Drive GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Equity Drive LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard Equity
  Drive GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Equity Drive LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Equity Drive II GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Equity Drive II LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard Equity
  Drive II GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Equity Drive II LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Grandview, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Lawson Commons, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Minnesota Center TIC II, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard One Financial Plaza Chicago Holding Business Trust

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard One Financial Plaza Chicago, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard One
  Financial Plaza Chicago Holding Business Trust

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard One Financial, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Operating Partnership I LP

  	
   

  	
  Texas

  	
   

  	
  BHR Business Trust

  	
   

  	
  Direct

  	
   

  	
  87.90

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Operating Partnership I LP

  	
   

  	
  Texas

  	
   

  	
  BHR Partners, LLC

  	
   

  	
  Direct

  	
   

  	
  11.65

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Operating Partnership I LP

  	
   

  	
  Texas

  	
   

  	
  BHR, Inc.

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Operating Partnership I LP

  	
   

  	
  Texas

  	
   

  	
  Third Party Investor

  	
   

  	
  Direct

  	
   

  	
  0.35

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Paces West, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Pratt H, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard Operating
  Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard REIT I, Inc.

  	
   

  	
  Maryland

  	
   

  	
  Behringer Harvard
  Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  22,000 Shares

  	
   

  	
   

  	
   

  
	
  Behringer
  Harvard REIT I, Inc.

  	
   

  	
  Maryland

  	
   

  	
  Public Investors

  	
   

  	
  Direct

  	
   

  	
  291,960,175
  Shares

  	
   

  	
  as of 5/1/2009

  	
   

  
	
  Behringer
  Harvard Riverview, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard South Riverside Holding Business Trust

  	
   

  	
  Maryland

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard South Riverside, LLC

  	
   

  	
  Delaware

  	
   

  	
  222 South Riverside
  Property LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Terrace GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Terrace LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard Operating
  Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Terrace LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Terrace GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Texas Street GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Texas Street LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Texas Street LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard Texas
  Street GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Three Parkway Holding, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Three Parkway, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard Three
  Parkway Holding, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Travis Tower H GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Travis Tower H LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Travis Tower H LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard Travis
  Tower H GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Utah Avenue GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Utah Avenue LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Utah Avenue LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard Utah
  Avenue GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Wayside, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Western Portfolio GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Western Portfolio LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Western Portfolio LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Western Portfolio GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Woodcrest Holding, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Woodcrest I, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Woodcrest Holding, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Woodcrest II, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Woodcrest Holding, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Woodcrest III, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Woodcrest Holding, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Behringer
  Harvard Woodcrest IV, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  BHR
  BT, Inc.

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard REIT
  I, Inc.

  	
   

  	
  Direct

  	
   

  	
  1,000 Shares

  	
   

  	
   

  	
   

  
	
  BHR
  Business Trust

  	
   

  	
  Maryland

  	
   

  	
  BHR BT, Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  BHR
  Partners, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard REIT
  I, Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  BHR, Inc.

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard REIT
  I, Inc.

  	
   

  	
  Direct

  	
   

  	
  1,000 Shares

  	
   

  	
   

  	
   

  
	
  BofA
  Plaza GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC BofA Plaza Holdings,
  LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  BofA
  Plaza, L.P.

  	
   

  	
  Delaware

  	
   

  	
  IPC BofA Plaza Holdings,
  LLC

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  BofA
  Plaza, L.P.

  	
   

  	
  Delaware

  	
   

  	
  BofA Plaza GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Finance
  Co., LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC United Plaza, L.P.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  First
  States Investors 228 Holdings A, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty II, LLC

  	
   

  	
  Direct

  	
   

  	
  30.00

  	
  %

  	
   

  	
   

  
	
  IPC
  (US) Realty Holdings III, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC (US), Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  (US), Inc.

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
  Pref. stock

  	
   

  
	
  IPC
  (US), Inc.

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard Cayman
  Ltd.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
  Com. stock

  	
   

  



 

















 


	
  Legal Entity Name

  	
   

  	
  Domestic Juris

  	
   

  	
  Ownership

  	
   

  	
  Ownership Form

  	
   

  	
  Current Holdings

  	
   

  	
   

  	
   

  
	
  IPC
  500 Pratt Street Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty II, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  500 Pratt Street, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC 500 Pratt Street
  Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  BofA Plaza Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Nevada Realty, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Commercial Holdings Management, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Management
  Holdings, Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Commercial Holdings Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Commercial Holdings Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Commercial Holdings
  Management, Inc.

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Commercial Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Commercial Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Commercial Holdings
  Management, LLC

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Commercial Properties Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Commercial Holdings,
  LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Commercial Properties Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Commercial
  Properties Management, Inc.

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Commercial Properties Management, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Commercial Holdings,
  LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Commercial Properties, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Commercial Holdings,
  LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Commercial Properties, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Commercial
  Properties Management, LLC

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Crescent Center Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty II, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Crescent Center, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Crescent Center
  Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Dallas I GP, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Dallas Mezz I, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Dallas I Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty II, LLC

  	
   

  	
  Direct

  	
   

  	
  85.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Dallas I Mezz, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Dallas I Holdings,
  LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Dallas I PM, LP

  	
   

  	
  Delaware

  	
   

  	
  IPC Dallas I Mezz I, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Dallas I PM, LP

  	
   

  	
  Delaware

  	
   

  	
  IPC Dallas I
  GP, Inc.

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Dallas I, LP

  	
   

  	
  Delaware

  	
   

  	
  IPC Dallas I Mezz I, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Dallas I, LP

  	
   

  	
  Delaware

  	
   

  	
  IPC Dallas I PM, LP

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Fifth Third Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Retail Properties,
  LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Florida I Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC (US), Inc.

  	
   

  	
  Direct

  	
   

  	
  86.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Florida I, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Florida I Holdings,
  LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Florida II Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty II, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Florida II, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Florida II Holdings,
  LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Florida II, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Florida II
  Management, Inc.

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Florida II Management, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Florida II Holdings,
  LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Florida III Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC (US) Realty Holdings
  III, Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Florida III Management, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Florida III
  Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Florida III, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Florida III
  Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Florida III, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Florida III
  Management, Inc.

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Loop Central GP, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Loop Central
  Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Loop Central Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty II, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Loop Central, LP

  	
   

  	
  Delaware

  	
   

  	
  IPC Loop Central
  Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Loop Central, LP

  	
   

  	
  Delaware

  	
   

  	
  IPC Loop Central
  GP, Inc.

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Louisville Properties, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC LP/WP Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  LP/WP Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Commercial
  Properties, LLC

  	
   

  	
  Direct

  	
   

  	
  54.55

  	
  %

  	
   

  	
   

  
	
  IPC
  LP/WP Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Office Properties,
  LLC

  	
   

  	
  Direct

  	
   

  	
  45.45

  	
  %

  	
   

  	
   

  
	
  IPC
  Management Holdings, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty Limited

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Maryland I GP, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Maryland I Holdings,
  LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Maryland I Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC (US), Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Maryland I, LP

  	
   

  	
  Delaware

  	
   

  	
  IPC Maryland I Holdings,
  LLC

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  IPC
  Maryland I, LP

  	
   

  	
  Delaware

  	
   

  	
  IPC Maryland I
  GP, Inc.

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  IPC
  McDonald Holdings Management, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Management
  Holdings, Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  McDonald Holdings Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty II, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC
  McDonald Holdings Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC McDonald Holdings
  Management, Inc.

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC
  McDonald Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty II, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC
  McDonald Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC McDonald Holdings
  Management, LLC

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC
  McDonald Properties Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC McDonald Holdings,
  LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC
  McDonald Properties Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC McDonald Properties
  Management, Inc.

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC
  McDonald Properties Management, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC McDonald Holdings,
  LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  McDonald Properties, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC McDonald Holdings,
  LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC
  McDonald Properties, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC McDonald Properties
  Management, LLC

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC
  MetroCenter Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Retail Properties,
  LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  MetroCenter, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC MetroCenter
  Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Nevada Realty, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC (US), Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  



 

















 


	
  Legal Entity Name

  	
   

  	
  Domestic Juris

  	
   

  	
  Ownership

  	
   

  	
  Ownership Form

  	
   

  	
  Current Holdings

  	
   

  	
   

  	
   

  
	
  IPC New Orleans I, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC NOI Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC New Orleans I, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC NOI Management, LLC

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC New York Properties,
  LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Commercial
  Properties, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC NOI Holdings Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC (US), Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC NOI Holdings
  Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC NOI Holdings Inc.(2)

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC NOI Holdings
  Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC NOI Holdings
  Management, Inc.(1)

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC NOI Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC NOI Holdings Inc.(2)

  	
   

  	
  Direct

  	
   

  	
  86.86

  	
  %

  	
   

  	
   

  
	
  IPC NOI Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC NOI Holdings
  Management, LLC(1)

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC NOI Management, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC NOI Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC NOI Holdings
  Management, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Management
  Holdings, Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC NOI Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC NOI Holdings, LLC(2)

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC NOI Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC NOI
  Management, Inc.(1)

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC Office Holdings
  Management, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Management
  Holdings, Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC Office Holdings
  Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC Office Holdings
  Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Office Holdings
  Management, Inc.

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC Office Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC Office Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Office Holdings
  Management, LLC

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC Office Properties
  Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Office Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC Office Properties
  Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Office Properties
  Management, Inc.

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC Office Properties
  Management, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Office Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC Office Properties,
  LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Office Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC Office Properties,
  LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Office Properties
  Management, LLC

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC Philadelphia
  Holdings LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty II, LLC

  	
   

  	
  Direct

  	
   

  	
  89.99999

  	
  %

  	
   

  	
   

  
	
  IPC Philadelphia
  Management Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Management
  Holdings, Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC Philadelphia
  Mangement LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Philadelphia
  Management Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC Pittsburg Holdings
  LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty II, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC Pittsburg Management
  LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Management
  Holdings, Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC Prime Equity, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC (US) II, Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC Real Estate
  Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC Realty, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC (US), Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC Realty II, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC (US), Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC Retail Holdings
  Management, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Management
  Holdings, Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC Retail Holdings
  Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC Retail Holdings
  Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Retail Holdings
  Management, Inc.

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC Retail Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC Retail Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Retail Holdings
  Management, LLC

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC Retail Properties
  Management Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Retail Holdings
  Management, Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC Retail Properties
  Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Retail Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC Retail Properties
  Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Retail Properties
  Management Inc.

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC Retail Properties,
  LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Retail Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC Retail Properties,
  LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Retail Properties
  Management, LLC

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC United Plaza Fee
  Manager, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC United Plaza, L.P.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC United Plaza GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty II, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC United Plaza Lease,
  LP

  	
   

  	
  Delaware

  	
   

  	
  17th Ludlow Property,
  LLC

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  IPC United Plaza Lease,
  LP

  	
   

  	
  Delaware

  	
   

  	
  IPC United Plaza
  Management, Inc.

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  IPC United Plaza
  Management, Inc.

  	
   

  	
  Delaware

  	
   

  	
  17th Ludlow Property,
  LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC United Plaza, L.P.

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty II, LLC

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  IPC United Plaza, L.P.

  	
   

  	
  Delaware

  	
   

  	
  IPC United Plaza GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  IPC White Plains
  Holdings Management, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Management
  Holdings, Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC White Plains
  Holdings Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC White Plains
  Holdings Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC White Plains
  Holdings Management, Inc.

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC White Plains
  Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC White Plains
  Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC White Plains
  Holdings Management, LLC

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC White Plains
  Properties Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC White Plains
  Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC White Plains
  Properties Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC White Plains
  Properties Management, Inc.

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC White Plains
  Properties Management, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC White Plains
  Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC White Plains
  Properties, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC White Plains
  Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC White Plains
  Properties, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC White Plains
  Properties Management, LLC

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  



 

















 


	
  Legal Entity Name

  	
   

  	
  Domestic Juris

  	
   

  	
  Ownership

  	
   

  	
  Ownership Form

  	
   

  	
  Current Holdings

  	
   

  	
   

  	
   

  
	
  IPC
  Witchita Properties, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC LP/WP Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Xpark Holdings Management, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Management
  Holdings, Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Xpark Holdings Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Xpark Holdings Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Xpark Holdings
  Management, Inc.

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Xpark Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Xpark Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Xpark Holdings
  Management, LLC

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Xpark Properties Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Xpark Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Xpark Properties Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Xpark Properties
  Management, Inc.

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Xpark Properties Management, Inc.

  	
   

  	
  Delaware

  	
   

  	
  IPC Xpark Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Xpark Properties, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Xpark Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  IPC
  Xpark Properties, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Xpark Properties
  Management, LLC

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  IPC/Amerimar
  Management Co., LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Real Estate
  Management LLC

  	
   

  	
  Direct

  	
   

  	
  51.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 1, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 2, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 3, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 5, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 6, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 7, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 8, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 9, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 10, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 11, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 12, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 13, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 14, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 15, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 16, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 17, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 18, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 19, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 20, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 21, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Minnesota
  Center 22, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Normandie
  Village Associates, L.P.

  	
   

  	
  Delaware

  	
   

  	
  IPC Retail Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  50.00

  	
  %

  	
   

  	
   

  
	
  Normandie
  Village Associates, L.P.

  	
   

  	
  Delaware

  	
   

  	
  IPC Realty, LLC

  	
   

  	
  Direct

  	
   

  	
  48.00

  	
  %

  	
   

  	
   

  
	
  OFP
  Equity LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard One
  Financial Plaza Chicago, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  OFP
  Illinois Services LLC

  	
   

  	
  Delaware

  	
   

  	
  One Financial Place
  Holding LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  One
  Financial Place Holding LLC

  	
   

  	
  Delaware

  	
   

  	
  OFP Equity LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  One
  Financial Place Property LLC

  	
   

  	
  Delaware

  	
   

  	
  One Financial Place
  Holding LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Prime
  Office Company, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC Prime Equity, LLC

  	
   

  	
  Direct

  	
   

  	
  10.00

  	
  %

  	
  (carried interest only)

  	
   

  
	
  Stanwix
  Street Associates, L.P.

  	
   

  	
  Delaware

  	
   

  	
  IPC Pittsburg Holdings
  LLC

  	
   

  	
  Direct

  	
   

  	
  99.00

  	
  %

  	
   

  	
   

  
	
  Stanwix
  Street Associates, L.P.

  	
   

  	
  Delaware

  	
   

  	
  IPC Pittsburg Management
  LLC

  	
   

  	
  Direct

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Colorado Building 2, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Colorado Building 3, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Colorado Building 4, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Colorado Building 5, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Colorado Building 6, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard REIT
  I, Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Colorado Building 7, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Colorado Building 8, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Colorado Building 10, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Pratt 1, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Pratt 2, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Pratt 4, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Pratt 5, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Pratt 6, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Pratt 8, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Pratt 9, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Pratt 10, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  



 

















 


	
  Legal Entity Name

  	
   

  	
  Domestic Juris

  	
   

  	
  Ownership

  	
   

  	
  Ownership Form

  	
   

  	
  Current Holdings

  	
   

  	
   

  	
   

  
	
  TIC
  Pratt 11, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Pratt 13, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Pratt 15, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Pratt 16, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Pratt 17, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard Operating
  Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Pratt 18, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Pratt 19, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Pratt 23, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Pratt 24, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Pratt 25, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 1 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 1 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 2 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 2 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 3 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 3 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 4 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 4 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 5 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 5 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 6 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 6 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 7 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 7 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 8 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 8 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 9 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 9 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard Operating
  Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 10 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 10 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 11 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 11 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 12 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard Operating
  Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 12 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 13 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 13 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 14 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 14 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard Operating
  Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 15 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 15 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC Travis
  Tower 16 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 16 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 17 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 17 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 18 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 18 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 19 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 19 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard Operating
  Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 20 GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  TIC
  Travis Tower 20 LP

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Woodcrest
  Road Associates, L.P.

  	
   

  	
  Pennsylvania

  	
   

  	
  Behringer Harvard
  Woodcrest I, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  	
   

  	
   

  
	
  Woodcrest
  Road Associates, L.P.

  	
   

  	
  Pennsylvania

  	
   

  	
  Behringer Harvard
  Woodcrest II, LLC

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  
	
  Woodcrest
  Road Associates II, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  
	
  Woodcrest
  Road Urban Renewal, LLC

  	
   

  	
  New Jersey

  	
   

  	
  Behringer Harvard
  Woodcrest III, LLC

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  



 

















 


SCHEDULE 6.206.21(b)


 


UNCONSOLIDATED AFFILIATES OF REIT AND
ITS SUBSIDIARIES


 


Schedule
6.21(b) - Unconsolidated Affiliates of REIT and its Subsidiaries


 


	
  Legal Entity Name

  	
   

  	
  Domestic Juris

  	
   

  	
  Ownership

  	
   

  	
  Ownership Form

  	
   

  	
  Current Holdings

  	
   

  
	
  1301
  Chestnut Associates, L.P.

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Wanamaker Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  59.40

  	
  %

  
	
  Behringer
  Harvard Alamo Plaza H, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  
	
  Behringer
  Harvard Enclave H GP, LLC

  	
   

  	
  Texas

  	
   

  	
  Behringer Harvard Operating
  Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  
	
  Behringer
  Harvard Enclave H LP

  	
   

  	
  Texas

  	
   

  	
  Behringer Harvard
  Enclave H GP, LLC

  	
   

  	
  Direct

  	
   

  	
  0.10

  	
  %

  
	
  Behringer
  Harvard Enclave H LP

  	
   

  	
  Texas

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  
	
  Behringer
  Harvard St. Louis Place H, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  
	
  Behringer
  Harvard Wanamaker Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  IPC (US), Inc.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  
	
  IPC
  Wanamaker GP, Inc.

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Wanamaker Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  60.00

  	
  %

  
	
  Philadelphia
  Center Realty Associates, L.P.

  	
   

  	
  Delaware

  	
   

  	
  1301 Chestnut
  Associates, L.P.

  	
   

  	
  Direct

  	
   

  	
  89.00

  	
  %

  
	
  Philadelphia
  Center Realty Associates, L.P.

  	
   

  	
  Delaware

  	
   

  	
  PRCA Limited Partner,
  L.L.C.

  	
   

  	
  Direct

  	
   

  	
  11.00

  	
  %

  
	
  PRCA
  Limited Partner, L.L.C.

  	
   

  	
  Delaware

  	
   

  	
  1301 Chestnut
  Associates, L.P.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  
	
  Wanamaker
  Office Lease GP, Inc.

  	
   

  	
  Delaware

  	
   

  	
  Philadelphia Center
  Realty Associates, L.P.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  
	
  Wanamaker
  Office Lease, LLC

  	
   

  	
  Delaware

  	
   

  	
  Philadelphia Center
  Realty Associates, L.P.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  
	
  Wanamaker
  Office Lease, LP

  	
   

  	
  Delaware

  	
   

  	
  Wanamaker Office Lease,
  LLC

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  
	
  Wanamaker
  Office Lease, LP

  	
   

  	
  Delaware

  	
   

  	
  Wanamaker Office Lease
  GP, Inc.

  	
   

  	
  Direct

  	
   

  	
  0.01

  	
  %

  
	
  Wanamaker
  Retail Lease Holdings, LLC

  	
   

  	
  Delaware

  	
   

  	
  Philadelphia Center Realty
  Associates, L.P.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  
	
  Wanamaker
  Retail Lease Manager, Inc.

  	
   

  	
  Delaware

  	
   

  	
  Philadelphia Center
  Realty Associates, L.P.

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  
	
  Wanamaker
  Retail Lease, LLC

  	
   

  	
  Delaware

  	
   

  	
  Wanamaker Retail Lease
  Holdings, LLC

  	
   

  	
  Direct

  	
   

  	
  99.90

  	
  %

  
	
  Wanamaker
  Retail Lease, LLC

  	
   

  	
  Delaware

  	
   

  	
  Wanamaker Retail Lease
  Manager, Inc.

  	
   

  	
  Direct

  	
   

  	
  0.01

  	
  %

  
	
  TIC
  Alamo Plaza 7, LLC

  	
   

  	
  Delaware

  	
   

  	
  Behringer Harvard
  Operating Partnership I LP

  	
   

  	
  Direct

  	
   

  	
  100.00

  	
  %

  



 
















 


SCHEDULE
6.216.22


 


PROPERTY


 


LEASES


 


Unused
Tenant Improvement Allowances/Rent Abatements


 


The following
tenants at One Briarlake Plaza have the indicated amounts of unused tenant
improvement allowances that can be used toward free rent:


 


Citibank, N.A. —
$61,500.50


Microsoft —
$202,300


 


The following
tenants at One Briarlake Plaza have the indicated amounts of rent abatement
through the dates listed:


 


Tidewater Marine,
LLC — $171.65/month through July 31, 2009


Quest Software, Inc.
— $914.09/month through September 30, 2010


 


15 WAYSIDE — COGNOS LEASE


 


As previously
disclosed to Lender by email from Michael Ernst to Kevin Murray and Tim
Klespies, dated May 8, 2009, Cognos, a subsidiary of IBM that subleases space
at the 15 Wayside property from Nokia, Inc., has placed its space on the
sublease market.  Cognos accounts for
approximately 106,000 square feet at the 15 Wayside property.


 


5 & 15
Wayside — Nokia Operating Cost Audit


 


As noted in the
forms of Tenant Estoppel Certificates from Nokia, Inc, the “Tenant” under
leases for 5 Wayside Road and 15 Wayside Road in Burlington, Vermont (the “Nokia
Leases”), Behringer Harvard Wayside, LLC, the “Landlord” under the Nokia
Leases, and Tenant are engaged in a discussion regarding a contention by Tenant
that the management fees charged to Tenant for Fiscal Year 2007 were improperly
calculated under the terms of the Nokia Leases and that Tenant is owed a
reimbursement for the excess management fees passed through to Tenant under the
terms of the Nokia Leases as Operating Cost Escalation in the amount of
$245,647.  Landlord is disputing this
amount.  Tenant has also indicated
potential claims for Fiscal Years 2003-2006 and reserved its right to audit and
contest management fee passthroughs for Fiscal Year 2008 and for the first
portion of 2009.


 


Under the Nokia
Leases for 5 Wayside and 15 Wayside, Tenant has the right to audit records
relating to Operating Cost Escalation, and as result of such audit, Tenant has
contended that management fees passed through to Tenant were in excess of the
amount of that Landlord is


 


1

















 


permitted to pass
through under the terms of the Nokia Leases. 
Landlord has included a management fee of 3% of gross collected rents in
Operating Costs for the Fiscal Year in question.  Under Section 4.2(j) of each Nokia Lease,
Operating Costs may not include costs for a management fee in excess of 3% of
gross collected rents.  The Nokia Leases
further provide that all services included in Landlord’s Operating Costs will
be obtained by Landlord at commercially reasonable, competitive market rates
consistent with the operation and management of comparable “Class A” office
buildings in the suburban Boston area and also that payments to affiliates of
Landlord will be at reasonable rates consistent with those charged by
unaffiliated third parties.  Tenant
contends that because (1) Landlord has paid a third party manager a management
fee of less than 3% per year and (2) Tenant had previously exercised an option
to take over management and control of janitorial services and certain
maintenance and building services and maintenance, security and similar
services, the management fees passed through to Tenant were in excess of a
market rate.  Landlord contends that
Tenant’s argument fails to account for management-related services provided by
affiliates of Landlord in addition to those provided by the third party manager
and that such services, together with the services of the third party property
manager, are collectively being provided at market rates at least equivalent to
the management fee passed through to Tenant as Operating Cost Escalation.  Landlord believes that this issue will be
amicably resolved with the Tenant.  
Capitalized terms not otherwise defined above have the meanings given in
the Nokia Leases.


 


Centreport — Dean Foods and Radiant Operating
Expense Disputes


 


As a result of recent tenant estoppel requests, we have
become aware of operating expense disputes with two tenants at Centreport —
Dean Foods and Radiant.  Dean Foods has
disputed the calculation of operating expenses for the base year and subsequent
years based on their assertion that different methodologies were used to
calculate them.  Radiant has disputed the
2009 operating expense estimates due to the increase from 2008 to 2009 but
continues to pay operating expenses based on the monthly amounts paid during
2008, a difference of $3,829.83 per month. 
Radiant requested backup substantiating the 2009 increase, and upon
review, it was discovered that the cap on controllable operating expenses used
to calculate the 2009 estimates was incorrect. 
The 2009 estimate has been recalculated and sent to asset management for
review.  Once approved, a credit will be
issued to Radiant’s account and applied to outstanding charges.


 


Neither Dean Foods or Radiant has submitted a formal
lease audit request.


 


Westway — National Tank Company Operating Expense
Dispute


 


As a result of a recent tenant estoppel request, we have
become aware of an operating expense dispute with National Tank Company
(NATCO), a tenant at Westway.  NATCO has
indicated it intends to request an audit of operating expenses pursuant to its
lease, but it has not submitted a formal lease audit request.  We are aware that NATCO is disputing how utility
billbacks and common area maintenance charges for utilities have been charged
due to electric submetering issues that were identified in late 2008.  However, we are not aware of any other
specific disputes regarding operating expenses that may be identified in
connection with any audit of NATCO’s operating expenses.


 


2

















 


SCHEDULE
6.23


 


 


PROPERTY


 


(i)


 


Westway in Houston, TX


 


The same storm that
caused the flooding at One Briarlake Plaza (discussed below) also revealed some
leaks in the curtainwall and roof at Westway. 
We believe these issues are covered under our warranty and will be
resolved in the next 30 days.


 


The west side of
the property has had problems maintaining adequate pressure in the HVAC system
during hot weather which has resulted in temperature and humidity levels being
less than ideal during the summer months. We have spent significant time trying
to determine how to address this issue. In part, we can address it with tenant
education about how to use the system more efficiently and with more hands-on
management of the system by our building engineer, and we are proceeding with
both of these short term solutions. 
However, it appears that there are defect issues in the design and
installation of the system that will require more complicated and extensive
solutions.  We do not have a cost
estimate for how much or how long it will take to fully solve this issue at
this time, but we believe that the entire cost will be covered under warranty.  We estimate we can resolve it in 3-4 months
but do not currently have a high confidence level in that timeframe.


 


We have begun the
design process for installing a water pump to increase the water pressure in
the building.  When the building was
designed, a study was done that showed water pressure in the area delivered by
the City of Houston at approximately 60 psi. 
Because of a recent offsite water main break and high levels of nearby
development, the building’s water pressure has dropped below that level.  The City of Houston is required to deliver a
minimum of 30 psi; we are not at that level yet but have been in the 35-45 psi
range on several occasions since the water main break.  Our sprinkler system requires 43.5 psi to
operate at maximum efficiency.  On days
when the water pressure supplied by the City drops lower than that level, the
third floor sprinklers will work but not at maximum efficiency.  In the event of a fire, pressure would be
supplemented by a fire department pumper truck. 
Further, the performance of the plumbing system at that lower pressure
is not what we would like to deliver to our tenants; therefore, we intend to
spend approximately $250,000 to build a retention tank and water pump on
site.  Unless unexpected delays occur
with permit or approval requirements, we expect to complete this project in 6-8
weeks.  This project will be at our cost
since the building system was installed and built according to plans.  In the interim, we have added a night,
fire-watch security shift to the property to make sure that someone is
monitoring any fire risk at all times. 
In addition, we have changed maintenance personnel operating procedures
to minimize fire risk.


 


1

















 


There are a number
of other minor punch list items, most of which we expect to be covered under
warranty or otherwise be covered by third parties.  None of them are particularly significant
either in terms of cost or impact on the building.


 


(ii)


 


Energy Center in New Orleans, LA


 


Operations at the Energy Centre in New Orleans were
impacted as a result of Hurricane Katrina in August 2005 and the subsequent
flooding to the city. The physical damage to this building consisted primarily
of damage to the curtainwall and window systems. A complete evaluation was
performed and forwarded to Chubb Insurance (“Chubb”).  The costs of repair are significant; however,
many costs in excess of the deductible are being covered by insurance or were
covered by the $500,000 claim under the national flood insurance policy in
place for this property.


 


Chubb has agreed to the repair/replacement scope for all
window glasses and frames, and Faithful Gould, a project management firm;
Verges Rome, an architecture firm; and DeGeorge Glass Company, Inc., a general
contractor, were selected and approved for the repair work. The repairs are
currently underway, and it is estimated that they will continue until May 2010.


 


Temporary window repairs, the repairs to the main roof
and assorted balcony roofs and the replacement of the balcony access doors have
been completed. The replacement of the roof top louvers, the lobby granite and
the guard desk were completed in September 2007.


 


IPC mitigated the business interruption costs by allowing
tenants to re-occupy their leased premises as of November 1, 2005 at reduced
rental rates of 90% of their contractual base rents. Rents will return to
contracted amounts once the building is fully restored.


 


The insurance claim adjustment process with Chubb is
ongoing, and we have received an advance of $17 million to be used for the
repairs.  There are at least $1.7 million
of expenses related to the repairs that will not be covered under the Chubb
claim, which amount may increase as the claim reaches final settlement.  Final settlement is anticipated to be
approximately of $30 million.


 


(viii)


 


Tax Assessments


 


The Hurstbourne Business Center in Louisville, KY, which
is comprised of the Hurstbourne Place, Hurstbourne Park and Hurstbourne Plaza
properties, is assessed as one allocated tax parcel.


 


MetroCenter in
Nashville, TN is three buildings on two tax parcels.  The main tower is separately assessed, but
the other two buildings are assessed as one allocated tax parcel.


 


Brittany I and II
in Wichita, KS are assessed as one 50/50 allocated tax parcel.


 


2

















 


(ix)


 


See Schedule 6.10
regarding the Florida sales tax audit.


 


(xi)


 


Energy Center in New Orleans, LA


 


See (ii) above.


 


One Briarlake Plaza in Houston, TX


 


On Monday, April 27, 2009, the Westchase area of Houston,
TX received 10-11” of rain within a 24-hour period and 4-6” of rain within one
four-hour period.  As a result of the
excessive rainfall, One Briarlake Plaza’s loading dock and basement level
flooded.  Because One Briarlake Plaza’s
central plant, main electrical system and fire pumps are located in the
basement, the local electric delivery company turned off the main building
electrical services for safety reasons on Tuesday, April 28, 2009.  After numerous electrical components were
replaced, the building’s power was restored on Friday, May 1, 2009.  The building reopened for business on the
morning of Friday, May 1, 2009 without air conditioning and was fully
operational by Monday, May 4, 2009. 
There are ongoing cosmetic repairs to the lower level and some areas in
the main lobby, but total restoration is expected to be completed within 30
days.  We have submitted a claim for this
incident with our insurance carrier and believe the damage is covered by
insurance subject to a $100,000 deductible.


 


(xii)


 


Epic Center
in Wichita, KS


 


During a typical
insurance inspection, Chubb noted deferred maintenance to the metal pans of the
garage stairway.  We expect to receive
the consultant’s report on this project shortly and to have the work, which is
included in the 2009 capital budget, completed by October 2009.


 


(xiii)


 


Westway in Houston, TX


 


Pursuant to Exhibit G-5, Section V(a) of the National
Tank Company (“NATCO”) lease at Westway, NATCO has a right of first offer to
purchase the property if the landlord desires to sell or transfer it.


 


(xiv)


 


Behringer Harvard Operating Partnership I LP (“BHOP”) is
a party to the Fifth Amended and Restated Property Management and Leasing
Agreement, as amended, dated May 15, 2008, by and among Behringer Harvard REIT
I, Inc., BHOP and HPT Management Services LP.


 


3

















 


By assignment and
assumption, IPC Florida III, LLC is a party to the Management Agreement, dated December
31, 2001, between Wells Management Company, Inc., managing agent for Wells
Operating Partnership, L.P., and Mainsail Management Group, Inc.


 


(xvi) See Attached.


 


4
















 


Schedule
6.23(xvi)


 


Behringer
Harvard BriarLake Plaza, LP


One
BriarLake Plaza


 


SERVICE
CONTRACTS:


 


	
  SERVICE

  	
   

  	
  PROVIDER

  	
   

  	
  EFFECTIVE DATE

  OF AGREEMENT

  	
   

  
	
  Electricity

  	
   

  	
  Suez Energy North
  America

  	
   

  	
  12/1/2006

  	
   

  
	
  Janitorial

  	
   

  	
  American Building
  Maintenance

  	
   

  	
  1/1/2009

  	
   

  
	
  Elevator Maintenance

  	
   

  	
  Thyssenkrupp Elevator
  Company

  	
   

  	
  1/1/2009

  	
   

  
	
  HVAC Maintenance

  	
   

  	
  Johnson Controls

  	
   

  	
  1/1/2008

  	
   

  
	
  Fire System Monitoring

  	
   

  	
  Firetron, Inc.

  	
   

  	
  1/1/2008

  	
   

  
	
  Security Services

  	
   

  	
  American Commerical
  Security

  	
   

  	
  5/1/2007

  	
   

  
	
  Parking

  	
   

  	
  Ampco System Parking

  	
   

  	
  8/1/2008

  	
   

  
	
  Window Cleaning

  	
   

  	
  Martin’s Window
  Cleaning

  	
   

  	
  1/1/2009

  	
   

  
	
  Water Treatment

  	
   

  	
  GE Betz

  	
   

  	
  9/1/2007

  	
   

  
	
  Landscaping

  	
   

  	
  Earthcare Management

  	
   

  	
  6/1/2007

  	
   

  



 


CONSTRUCTION
CONTRACTS (Including Cap Ex, TI and/or any other significant construction
related contract):


 


	
  PROJECT

  	
   

  	
  CONTRACTOR

  	
   

  	
  EFFECTIVE DATE

  OF AGREEMENT

  	
   

  
	
  Mariner Energy - TI
  Level 16

  	
   

  	
  Trademark Construction

  	
   

  	
  4/7/2009

  	
   

  
	
  Flood Repairs -
  Elevator

  	
   

  	
  Thyssenkrupp Elevator

  	
   

  	
  5/7/2009

  	
   

  
	
  Flood Repairs - Central
  Plant Insulation

  	
   

  	
  Williams Insulation
  Contractor Inc.

  	
   

  	
  5/7/2009

  	
   

  
	
  Flood Repairs - Chiller
  Inspection

  	
   

  	
  Johnson Controls

  	
   

  	
  5/4/2009

  	
   

  
	
  Flood Repairs - Water
  feature pumping station

  	
   

  	
  MFR Fluid and Air

  	
   

  	
  5/11/2009

  	
   

  
	
  Flood Repairs -
  Basement Polomyx

  	
   

  	
  Marek Brothers Systems
  Inc.

  	
   

  	
  5/11/2009

  	
   

  
	
  Flood Repairs -
  Building Automation controllers

  	
   

  	
  Siemens Building
  Technologies Inc.

  	
   

  	
  5/8/2009

  	
   

  
	
  Flood Repairs -
  Transfer Switch

  	
   

  	
  Cummins Southern Plains
  Ltd.

  	
   

  	
  5/8/2009

  	
   

  



 


	
  MANAGEMENT
  AGREEMENTS:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  See
  Section 6.23(xiv) - HPT Management Services LP

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LEASING
  AGREEMENTS:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Between Behringer
  Harvard Plaza LP, Behringer Harvard Briarlake Plaza 1031 & Capstar
  Commercial Real Estate Services Ltd.

  	
   

  	
  9/25/2008

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Behringer
  Harvard CentrePort Office LP

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CenterPort

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SERVICE
  CONTRACTS:

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  SERVICE

  	
   

  	
  PROVIDER

  	
   

  	
  EFFECTIVE DATE

  OF AGREEMENT

  	
   

  
	
  Janitorial

  	
   

  	
  CBS, Inc.

  	
   

  	
  2/1/2009

  	
   

  
	
  HVAC Maintenance

  	
   

  	
  Air Performance

  	
   

  	
  2/1/2009

  	
   

  
	
  Fire System Monitoring

  	
   

  	
  DDS, Inc.

  	
   

  	
  2/1/2009

  	
   

  
	
  Landscaping

  	
   

  	
  Brickman Group

  	
   

  	
  2/1/2009

  	
   

  
	
  Pest Control

  	
   

  	
  Myers Pest Control

  	
   

  	
  2/1/2009

  	
   

  



 


MANAGEMENT
AGREEMENTS:


 


See Section 6.23(xiv)
- HPT Management Services LP


 


Behringer
Harvard Eldridge Land LP


Eldridge
III


 


CONSTRUCTION
CONTRACTS:


 


	
  PROJECT

  	
   

  	
  CONTRACTOR

  	
   

  	
  EFFECTIVE DATE

  OF AGREEMENT

  	
   

  
	
  Architect

  	
   

  	
  M. Arthur Gensler
  Jr. & Associates, Inc.

  	
   

  	
  6/1/2007

  	
   

  
	
  Construction Contract

  	
   

  	
  M. Arthur Gensler
  Jr. & Associates, Inc.

  	
   

  	
  6/1/2007

  	
   

  
	
  Construction
  Management, as amended

  	
   

  	
  E.E. Reed Construction,
  LP

  	
   

  	
  3/31/2008

  	
   

  



 

















 


Behringer
Harvard Equity Drive LP


Westway
One


 


SERVICE
CONTRACTS:


 


	
  SERVICE

  	
   

  	
  PROVIDER

  	
   

  	
  EFFECTIVE DATE

  OF AGREEMENT

  	
   

  
	
  Electricity

  	
   

  	
  Direct Energy

  	
   

  	
  12/22/2008

  	
   

  
	
  Janitorial

  	
   

  	
  Green Efficient

  	
   

  	
  11/14/2007

  	
   

  
	
  Elevator Maintenance

  	
   

  	
  Otis Elevator

  	
   

  	
  3/9/2009

  	
   

  
	
  HVAC Maintenance

  	
   

  	
  A/W Mechanical Services
  LP

  	
   

  	
  10/27/2008

  	
   

  
	
  Fire System Monitoring

  	
   

  	
  Firetron Inc

  	
   

  	
  9/1/2008

  	
   

  
	
  Security Services

  	
   

  	
  Allied Barton

  	
   

  	
  3/6/2009

  	
   

  
	
  Landscaping

  	
   

  	
  Houston Landscapes
  Unlimited

  	
   

  	
  4/20/2009

  	
   

  
	
  Window Cleaning

  	
   

  	
  Martins Window Cleaning

  	
   

  	
  4/23/2009

  	
   

  
	
  Parking

  	
   

  	
  Merit Parking

  	
   

  	
  4/2/2009

  	
   

  



 


MANAGEMENT
AGREEMENTS:


 


See Section 6.23(xiv)
- HPT Management Services LP


 


LEASING
AGREEMENTS:


 


	
  Between Behringer
  Harvard Equity Drive LP and Dienna Nelson Augustine Co.

  	
   

  	
  1/15/2008

  	
   

  



 


Behringer
Harvard Wayside, LLC


5 &
15 Wayside Road


 


SERVICE
CONTRACTS:


 


	
  SERVICE

  	
   

  	
  PROVIDER

  	
   

  	
  EFFECTIVE DATE

  OF AGREEMENT

  	
   

  
	
  Electricity

  	
   

  	
  TransCanada

  	
   

  	
  2/1/2009

  	
   

  
	
  Janitorial (Day Porter
  only)

  	
   

  	
  Janitronics

  	
   

  	
  1/8/2009

  	
   

  
	
  Exterior Landscape

  	
   

  	
  Eaton Horticultural
  Landscape

  	
   

  	
  4/1/2009

  	
   

  
	
  Snow Removal

  	
   

  	
  Eaton Horticultural
  Landscape

  	
   

  	
  11/1/2008

  	
   

  
	
  Pest Control (Geese
  maint.)

  	
   

  	
  John T. Pettee

  	
   

  	
  1/1/2009

  	
   

  



 


MANAGEMENT
AGREEMENTS:


 


See Section 6.23(xiv)
- HPT Management Services LP


 


Amended and
Restated Property Management Subcontract by and between HPT Management Services
LP, Behringer Harvard TIC Management Services LP and CB Richard Ellis, Inc.,
dated July 1, 2008, as amended by that First Amendment dated February 1,
2009


 


LEASING
AGREEMENTS:


 


	
  Between Behringer
  Harvard Wayside, LLC and CB Richard Ellis, Inc.

  	
   

  	
  5/5/2009

  	
   

  



 


IPC
Florida III, LLC


5104
Eisenhower


 


SERVICE
CONTRACTS:


 


	
  SERVICE

  	
   

  	
  PROVIDER

  	
   

  	
  EFFECTIVE DATE

  OF AGREEMENT

  	
   

  
	
  Janitorial

  	
   

  	
  Tidy Cleaning
  Service, Inc.

  	
   

  	
  4/1/2006

  	
   

  



 


MANAGEMENT
AGREEMENTS:


 


See
Section 6.23(xiv) - Mainsail Management Group, Inc.


 

















 


SCHEDULE 6.25


 


MATERIAL LOAN AGREEMENTS


 


Schedule
6.25 - Other Debt


 


Travis Tower


Guaranty Agreement made
by Behringer Harvard REIT I, Inc. for the benefit of First American Bank,
SSB


 


250 West Pratt


Guaranty of Recourse
Obligations made by Behringer Harvard REIT I, Inc. as guarantors in favor
of Citigroup Global Markets Realty Corp.


 


Ashford Perimeter


Indemnity Agreement by
Behringer Harvard Ashford Perimeter H, LLC and Behringer Harvard REIT I, Inc.
in favor of Bear Stearns Commercial Mortgage, Inc.


 


Alamo Plaza


Guaranty of Recourse
Obligations made by Behringer Harvard REIT I, Inc. in favor of Citigroup
Global Markets Realty Corp.


 


Lawson Commons


Indemnity Agreement by
Behringer Harvard Lawson Commons, LLC and the Behringer Harvard REIT I, Inc.
in favor of Bear Stearns Commercial Mortgage, Inc. regarding Lawson
Commons


 


Downtown Plaza


Indemnity Agreement by
Behringer Harvard Downtown Plaza LP and the Behringer Harvard REIT I, Inc.
in favor of Bear Stearns Commercial Mortgage, Inc. regarding Downtown
Plaza


 


Western Office Portfolio


Environmental Indemnity
Agreement by Behringer Harvard Western Portfolio LP, in favor of JPMorgan Chase
Bank, N.A.


Guaranty Agreement by the
Behringer Harvard REIT I, Inc. for the benefit of JPMorgan Chase Bank,
N.A. regarding the Western Office Portfolio


 


Buena Vista


Indemnity Agreement by
Behringer Harvard Buena Vista Plaza LP and the Behringer Harvard REIT I, Inc.
in favor of Bear Stearns Commercial Mortgage, Inc. regarding Buena Vista
Plaza


 


One Financial Plaza


Guaranty of Recourse
Obligations made by the Behringer Harvard REIT I, Inc. as guarantor in
favor of Citigroup Global Markets Realty Corp. regarding One Financial Place


 


Riverview


Guaranty of Recourse
Obligations made by Behringer Harvard REIT I, Inc., as guarantor in favor
of Citigroup Global Markets Realty Corp.


 


1325 G Street


Indemnity Agreement made
by Behringer Harvard 1325 G Street, LLC and Behringer Harvard REIT I, Inc.
in favor of Bear Stearns Commercial Mortgage, Inc.


 


Woodcrest Plaza


Loan Agreement between
Citigroup Global Markets Realty Corp. and Woodcrest Road Associates, L.P. and
Woodcrest Road Urban Renewal, LLC


Guaranty of Recourse
Obligations made by Behringer Harvard REIT I, Inc., as guarantor in favor
of Citigroup Global Markets Realty Corp.


 


Burnett Plaza


Loan Assumption and
Substitution Agreement by and among Behringer Harvard REIT I, Inc., Behringer
Harvard Burnett Plaza LP, Burnett Plaza Associates, L.P., in favor of Lasalle
Bank National Association, as Trustee and REMIC Administrator for Banc of
America Commercial Mortgage, Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-6, and Brandywine Acquisition Partners 


Tax and Insurance Payment
Guaranty to induce Bank of America to make a loan to Burnett Plaza Associates,
L.P. (assumed by Behringer Harvard REIT I, Inc.).


 


AMEC Building


Loan Agreement between
JPMorgan Chase Bank, N.A. and Behringer Harvard 10777 Clay Road LP


Environmental Indemnity
Agreement by Behringer Harvard 10777 Clay Road LP, in favor of JPMorgan Chase
Bank, N.A.


Guaranty Agreement made
by Behringer Harvard REIT I, Inc., in favor of JP Morgan Chase Bank, N.A.


 


Paces West


Loan Agreement between
Bear Stearns Commercial Mortgage, Inc. and Behringer Harvard Paces West,
LLC 


Indemnity Agreement made
by Behringer Harvard Paces West, LLC and Behringer Harvard REIT I, Inc.,
in favor of Bear Stearns Commercial Mortgage, Inc.


 


222 Riverside


Loan Agreement between
Greenwich Capital Financial Products, Inc. and Behringer Harvard South
Riverside, LLC 


Guaranty Agreement made
by Behringer Harvard REIT I, Inc., in favor of Greenwich Capital Financial
Products, Inc.


 


The Terraces


Guaranty of Recourse
Obligations made by Behringer Harvard REIT I, Inc., in favor of Lehman
Brothers Bank, FSB


 


Alexander Road


Indemnity Agreement made
by Behringer Harvard Alexander Road, LLC, and Behringer Harvard REIT I, Inc.,
in favor of Bear Stearns Commercial Mortgage, Inc.


 


Grandview II


Loan Agreement between
JPMorgan Chase Bank, N.A. and Behringer Harvard Grandview, LLC


Environmental Indemnity
Agreement by Behringer Harvard Grandview, LLC, in favor of JPMorgan Chase Bank,
N.A.


Guaranty Agreement made by
Behringer Harvard REIT I, Inc., in favor of JPMorgan Chase Bank, N.A.


 


Bank of America Plaza -
Charlotte


Guaranty of Recourse
Obligations made by Behringer Harvard REIT I, Inc., in favor of Citigroup
Global Markets Realty Corp.


 


Three Parkway


Loan Agreement between JP
Morgan Chase Bank, N.A. and Behringer Harvard Three Parkway, LLC 


Environmental Indemnity
Agreement by Behringer Harvard Three Parkway, LLC, in favor of JPMorgan Chase
Bank, N.A.


Guaranty Agreement made
by Behringer Harvard REIT I, Inc., in favor of JPMorgan Chase Bank, N.A.


 


1

















 


4440 El Camino


Assumption Agreement By
and Among Los Altos Office Associates, LLC, Behringer Harvard El Camino Real
LP, Peter Pau, Behringer Harvard REIT I, LLC and Wells Fargo Bank, N.A. F/K/A
Wells Fargo Bank Minnesota, N.A. as trustee for the registered holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2001-CK3


Indemnity and Guaranty
Agreement made by Peter Pau, in favor of Column Financial, Inc.


Hazardous Substances
Indemnity Agreement made by Los Altos Office Associates, LLC, in favor of
Credit Suisse First Boston Mortgage Capital LLC


 


Fifth Third Center -
Cleveland


Environmental Indemnity
Agreement by Behringer Harvard 600 Superior Avenue LP, in favor of JPMorgan
Chase Bank, N.A.


Guaranty Agreement made
by Behringer Harvard REIT I, Inc., in favor of JPMorgan Chase Bank, N.A.


 


Resurgens


Environmental Indemnity
Agreement made by Behringer Harvard 945 East Paces Ferry Road, LLC, in favor of
Keybank National Association


Guaranty Agreement made
by Behringer Harvard REIT I, Inc., in favor of Keybank National
Association


 


Eldridge Place


Environmental Indemnity
Agreement by Behringer Harvard Eldridge Place LP, in favor of Wachovia Bank,
National Association


Guaranty Agreement made
by Behringer Harvard REIT I, Inc., for the benefit of Wachovia Bank,
National Association


 


10/120 S Riverside Plaza


Consent Agreement by and
between LaSalle Bank National Association, as Trustee for the Registered
Holders of ML-CFC Commercial Mortgage Trust 2006-4, Commercial Mortgage
Pass-Through Certificates, Series 2006-4, 10/120 South Riverside Fee LLC
and 10/120 South Riverside Property LLC, dated November 1, 2007


Environmental Indemnity
Agreement dated as of October 3, 2006 by 10/120 South Riverside Fee LLC
and 10/120 South Riverside Property LLC in favor of Merrill Lynch Mortgage
Lending, Inc.


Guaranty of Recourse
Obligations dated as of October 3, 2006 by Beacon Capital Strategic
Partners IV, L.P. for the benefit of the holder of Promissory Note B


 


One Financial Place


Reaffirmation, Consent to
Transfer, Substitution of Indemnitor and Modification of Loan Documents by and
among One Financial Place Property, LLC, Beacon Capital Strategic Partners IV,
L.P., BCSP IV U.S. Investments, L.P., Behringer Harvard One Financial Plaza
Chicago, LLC and Behringer Harvard REIT I, Inc., and Wells Fargo Bank N.A.
as Trustee under that certain Pooling and Servicing Agreement dated as of August 1,2006,
for the Registered Holders of Wachovia Bank National Association, Wachovia
Securities, Commercial Real Estate Services, dated November 1, 2007


Guaranty dated as of July 13,
2006 by Beacon Capital Strategic Partners IV, L.P. for the benefit of Wachovia
Bank, N.A.


 


200 S. Wacker


Reaffirmation, Consent to
Transfer, Substitution of Indemnitor and Modification of Loan Documents by and
among 200 South Wacker Property LLC, Beacon Capital Strategic Partners IV,
L.P., BCSP IV U.S. Investments, L.P., Behringer Harvard 200 South Wacker Drive,
LLC and Behringer Harvard REIT I, Inc., and LaSalle Bank National
Association as Trustee under that certain Pooling and Servicing Agreement dated
as of March 13, 2006, for the Registered Holders of LB-UBS Commercial
Mortgage Trust 2006-C3, Commercial Mortgage Pass-Through Certificates, Series 2006-C3,
dated November 1, 2007


Environmental Indemnity
Agreement dated as of January 30, 2006 by Behringer Harvard 200 South
Wacker Property LLC and Beacon Capital Strategic Partners IV, L.P. in favor of
South Wacker Lender


Guaranty of Recourse
Obligations dated as of January 30, 2006 by Beacon Capital Strategic
Partners IV, L.P. for the benefit of Lehman Brothers Bank, FSB


 


One City Centre


Joinder by and Agreement
of New Guarantors by Behringer Harvard REIT I, Inc. in favor of LaSalle
Bank National Association, dated as of June 19, 2008


 
















 


SCHEDULE 9


 


EXAMPLE OF DEBT SERVICE COVERAGE AMOUNT CALCULATION


 


Schedule
9 - Example of Calculation of Debt Service Coverage Amount


 


BORROWING
BASE CERTIFICATE BACKUP


as
of 5/31/09


 


	
   

  	
   

  	
   

  	
   

  	
  ALLOCATED

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PROPERTY

  	
   

  	
  VALUE

  	
   

  	
  LOAN AMOUNT

  	
   

  	
  NOI

  	
   

  	
  DSC VALUE

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ELDRIDGE
  III

  	
   

  	
  $

  	
  38,933,881

  	
   

  	
  $

  	
  23,360,329

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CENTERPORT

  	
   

  	
  $

  	
  16,000,000

  	
   

  	
  $

  	
  9,600,000

  	
   

  	
  $

  	
  1,322,187

  	
   

  	
  $

  	
  12,745,200

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WESTWAY

  	
   

  	
  $

  	
  28,000,000

  	
   

  	
  $

  	
  16,800,000

  	
   

  	
  $

  	
  1,907,123

  	
   

  	
  $

  	
  18,383,680

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WAYSIDE
  I & II

  	
   

  	
  $

  	
  54,500,000

  	
   

  	
  $

  	
  32,700,000

  	
   

  	
  $

  	
  6,608,154

  	
   

  	
  $

  	
  63,699,190

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5104
  EISENHOWER

  	
   

  	
  $

  	
  21,900,000

  	
   

  	
  $

  	
  13,140,000

  	
   

  	
  $

  	
  2,327,234

  	
   

  	
  $

  	
  22,433,333

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ONE
  BRIARLAKE

  	
   

  	
  $

  	
  127,000,000

  	
   

  	
  $

  	
  76,200,000

  	
   

  	
  $

  	
  8,367,768

  	
   

  	
  $

  	
  80,660,960

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  286,333,881

  	
   

  	
  $

  	
  171,800,329

  	
   

  	
  $

  	
  20,532,466

  	
   

  	
  $

  	
  197,922,364

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ELDRIDGE
  III AS % OF TOTAL

  	
   

  	
  13.6

  	
  %

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ADVANCE
  RATE

  	
   

  	
  60

  	
  %

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DSC
  MINIMUM

  	
   

  	
  1.30

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MORTGAGE
  CONSTANT

  	
   

  	
  7.98

  	
  %

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UNFUNDED
  EE REED CONTRACT

  	
   

  	
  $

  	
  15,880,132

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  X
  110%

  	
   

  	
  $

  	
  17,468,145

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LINE
  AVAILABILITY

  	
   

  	
  $

  	
  154,332,183

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


1
















 


EXHIBITS
AND SCHEDULES


 


	
  Exhibit A

  	
   

  	
  FORM OF REVOLVING
  CREDIT NOTE

  
	
   

  	
   

  	
   

  
	
  Exhibit B

  	
   

  	
  FORM OF SWING LOAN
  NOTE

  
	
   

  	
   

  	
   

  
	
  Exhibit C

  	
   

  	
  FORM OF TERM
  LOAN NOTE ASSIGNMENT AND ACCEPTANCE
  AGREEMENT

  
	
   

  	
   

  	
   

  
	
  Exhibit D

  	
   

  	
  FORM OF JOINDER
  AGREEMENT

  
	
   

  	
   

  	
   

  
	
  Exhibit E

  	
   

  	
  FORM OF
  MORTGAGE

  
	
   

  	
   

  	
   

  
	
  Exhibit F                       FORM OF
  DEED OF TRUST

  
	
   

  	
   

  	
   

  
	
  Exhibit G

  	
   

  	
  FORM OF REQUEST FOR
  REVOLVING CREDIT LOAN

  
	
   

  	
   

  	
   

  
	
  Exhibit FH

  	
   

  	
  FORM OF LETTER OF
  CREDIT REQUEST

  
	
   

  	
   

  	
   

  
	
  Exhibit GI                     FORM OF
  BORROWING BASE CERTIFICATE

  
	
   

  	
   

  	
   

  
	
  Exhibit J

  	
   

  	
  FORM OF COMPLIANCE
  CERTIFICATE

  
	
   

  	
   

  	
   

  
	
  Exhibit HK

  	
   

  	
  FORM OF ASSIGNMENT
  AND ACCEPTANCE AGREEMENT

  
	
   

  	
   

  	
   

  
	
  Exhibit IL

  	
   

  	
  FORM OF LETTER OF
  CREDIT APPLICATION

  
	
   

  	
   

  	
   

  
	
  Exhibit M                      FORM OF
  ASSIGNMENT AND SUBORDINATION OF MANAGEMENT AGREEMENT

  
	
   

  	
   

  	
   

  
	
  Schedule 1.1

  	
   

  	
  LENDERS AND COMMITMENTS

  
	
   

  	
   

  	
   

  
	
  Schedule 1.2

  	
   

  	
  SUBSIDIARY GUARANTORS

  
	
   

  	
   

  	
   

  
	
  Schedule 2.9                 OUTSTANDING
  LETTERS OF CREDIT

  
	
   

  	
   

  	
   

  
	
  Schedule 4.3

  	
   

  	
  ACCOUNTS

  
	
   

  	
   

  	
   

  
	
  Schedule 5.3                 
  ELIGIBLE REAL ESTATE QUALIFICATION DOCUMENTS

  
	
   

  	
   

  	
   

  
	
  Schedule 6.3

  	
   

  	
  LIST OF ALL ENCUMBRANCES
  ON ASSETS

  
	
   

  	
   

  	
   

  
	
  Schedule 6.5

  	
   

  	
  NO MATERIAL CHANGES

  
	
   

  	
   

  	
   

  
	
  Schedule 6.6                 TRADEMARKS,
  TRADENAMES

  
	
   

  	
   

  	
   

  
	
  Schedule 6.7

  	
   

  	
  PENDING LITIGATION

  



 

















 


	
  Schedule 6.10

  	
   

  	
  UNPAID TAXES

  
	
   

  	
   

  	
   

  
	
  Schedule 6.146.15

  	
   

  	
  CERTAIN TRANSACTIONS

  
	
   

  	
   

  	
   

  
	
  Schedule 6.20(c)

  	
   

  	
  RELEASES

  
	
   

  	
   

  	
   

  
	
  Schedule 6.20(d)

  	
   

  	
  HAZARDOUS
  SUBSTANCES

  
	
   

  	
   

  	
   

  
	
  Schedule 6.21(a)

  	
   

  	
  SUBSIDIARIES OF REIT

  
	
   

  	
   

  	
   

  
	
  Schedule 6.206.21(b)

  	
   

  	
  UNCONSOLIDATED
  AFFILIATES REIT AND ITS SUBSIDIARIES

  
	
   

  	
   

  	
   

  
	
  Schedule 6.21

  	
   

  	
  PROPERTY6.22 LEASES

  
	
   

  	
   

  	
   

  
	
  Schedule 6.23

  	
   

  	
  PROPERTY

  
	
   

  	
   

  	
   

  
	
  Schedule 6.25

  	
   

  	
  MATERIAL LOAN AGREEMENTS

  
	
   

  	
   

  	
   

  
	
  Schedule 9

  	
   

  	
  EXAMPLE OF DEBT SERVICE
  COVERAGE AMOUNT CALCULATION

  



 


 


ii

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §1.

  	
   

  	
  DEFINITIONS AND RULES OF
  INTERPRETATION

  	
   

  	
  1

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §1.1

  	
   

  	
  Definitions

  	
   

  	
  1

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §1.2

  	
   

  	
  Rules of
  Interpretation

  	
   

  	
  2535

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §2.

  	
   

  	
  THE CREDIT FACILITY

  	
   

  	
  2636

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §2.1

  	
   

  	
  Revolving Credit Loans

  	
   

  	
  2636

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §2.2

  	
   

  	
  Commitment
  to Lend Term Loan  27§2.3 Facility Unused Fee

  	
   

  	
  2738

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §2.42.3

  	
   

  	
  Reduction and
  Termination of the Revolving Credit Commitments

  	
   

  	
  2738

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §2.52.4

  	
   

  	
  Swing Loan Commitment

  	
   

  	
  2838

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §2.62.5

  	
   

  	
  Interest on Loans

  	
   

  	
  3041

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §2.72.6

  	
   

  	
  Requests for Revolving
  Credit Loans

  	
   

  	
  3142

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §2.82.7

  	
   

  	
  Funds for Loans

  	
   

  	
  3142

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §2.92.8

  	
   

  	
  Use of Proceeds

  	
   

  	
  3243

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §2.102.9

  	
   

  	
  Letters of Credit

  	
   

  	
  3243

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §2.112.10

  	
   

  	
  Increase in Total Revolving
  Credit Commitment

  	
   

  	
  3646

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §2.122.11

  	
   

  	
  Extension of Revolving
  Credit Maturity Date

  	
   

  	
  3849

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §2.13

  	
   

  	
  Extension of Term Loan
  Maturity Date

  	
   

  	
  3950

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §3.

  	
   

  	
  REPAYMENT OF THE LOANS

  	
   

  	
  4051

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §3.1

  	
   

  	
  Stated Maturity

  	
   

  	
  4051

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §3.2

  	
   

  	
  Mandatory Prepayments

  	
   

  	
  4051

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §3.3

  	
   

  	
  Optional Prepayments

  	
   

  	
  4051

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §3.4

  	
   

  	
  Partial Prepayments

  	
   

  	
  4152

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §3.5

  	
   

  	
  Effect of Prepayments

  	
   

  	
  4152

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §4.

  	
   

  	
  CERTAIN GENERAL
  PROVISIONS

  	
   

  	
  4152

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §4.1

  	
   

  	
  Conversion Options

  	
   

  	
  4152

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §4.2

  	
   

  	
  Fees

  	
   

  	
  4253

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §4.3

  	
   

  	
  Funds for Payments

  	
   

  	
  4253

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §4.4

  	
   

  	
  Computations

  	
   

  	
  4455

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §4.5

  	
   

  	
  Suspension of Revolving Credit LIBOR Rate Loans

  	
   

  	
  4455

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §4.6

  	
   

  	
  Illegality

  	
   

  	
  4456

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §4.7

  	
   

  	
  Additional Interest

  	
   

  	
  4556

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §4.8

  	
   

  	
  Additional Costs, Etc

  	
   

  	
  4556

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §4.9

  	
   

  	
  Capital Adequacy

  	
   

  	
  4657

  	
   

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §4.10

  	
   

  	
  Breakage Costs

  	
   

  	
  4758

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §4.11

  	
   

  	
  Default Interest; Late
  Charge

  	
   

  	
  4758

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §4.12

  	
   

  	
  Certificate

  	
   

  	
  4758

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §4.13

  	
   

  	
  Limitation on Interest

  	
   

  	
  4758

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §4.14

  	
   

  	
  Certain Provisions
  Relating to Increased Costs and Non-Funding Lenders

  	
   

  	
  4859

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §5.

  	
   

  	
  COLLATERAL SECURITY;
  GUARANTORS

  	
   

  	
  4960

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §5.1

  	
   

  	
  Collateral

  	
   

  	
  4960

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §5.2

  	
   

  	
  Additional Guarantors

  	
   

  	
  49

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §5.3

  	
   

  	
  Additional Collateral

  	
   

  	
  49

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §5.2

  	
   

  	
  Appraisals;
  Adjusted Value

  	
   

  	
  60

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §5.3

  	
   

  	
  Replacement or
  Addition of Mortgaged Properties

  	
   

  	
  61

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §5.4

  	
   

  	
  Release of Mortgaged Property

  	
   

  	
  62

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §5.5

  	
   

  	
  Additional
  Guarantors

  	
   

  	
  63

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §5.6

  	
   

  	
  Intentionally
  Omitted

  	
   

  	
  63

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §5.7

  	
   

  	
  Release of
  Collateral (other than Mortgaged Properties); Release of Guarantor

  	
   

  	
  5064

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §6.

  	
   

  	
  REPRESENTATIONS AND
  WARRANTIES

  	
   

  	
  5165

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.1

  	
   

  	
  Corporate Authority, Etc

  	
   

  	
  5165

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.2

  	
   

  	
  Governmental Approvals

  	
   

  	
  5266

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.3

  	
   

  	
  Title to Properties

  	
   

  	
  5266

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.4

  	
   

  	
  Financial Statements

  	
   

  	
  5267

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.5

  	
   

  	
  No Material Changes

  	
   

  	
  5267

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.6

  	
   

  	
  Franchises, Patents,
  Copyrights, Etc

  	
   

  	
  5367

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.7

  	
   

  	
  Litigation

  	
   

  	
  5368

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.8

  	
   

  	
  No Material Adverse
  Contracts, Etc

  	
   

  	
  5368

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.9

  	
   

  	
  Compliance with Other
  Instruments, Laws, Etc

  	
   

  	
  5368

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.10

  	
   

  	
  Tax Status

  	
   

  	
  5368

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.11

  	
   

  	
  No Event of Default

  	
   

  	
  5468

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.12

  	
   

  	
  Investment Company Act

  	
   

  	
  5468

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.13

  	
   

  	
  Intentionally
  Omitted

  	
   

  	
  69

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.14

  	
   

  	
  Setoff, Etc

  	
   

  	
  5469

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.146.15

  	
   

  	
  Certain Transactions

  	
   

  	
  5469

  	
   

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.156.16

  	
   

  	
  Employee Benefit Plans

  	
   

  	
  5469

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.166.17

  	
   

  	
  Disclosure

  	
   

  	
  5569

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.176.18

  	
   

  	
  Place of Business

  	
   

  	
  5570

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.186.19

  	
   

  	
  Regulations T, U and X

  	
   

  	
  5570

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.196.20

  	
   

  	
  Environmental Compliance

  	
   

  	
  5570

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.206.21

  	
   

  	
  Subsidiaries;
  Organizational Structure

  	
   

  	
  5772

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.216.22

  	
   

  	
  Leases

  	
   

  	
  72

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.23

  	
   

  	
  Property

  	
   

  	
  5773

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.226.24

  	
   

  	
  Brokers

  	
   

  	
  5874

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.236.25

  	
   

  	
  Other Debt

  	
   

  	
  5874

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.246.26

  	
   

  	
  Solvency

  	
   

  	
  5874

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.256.27

  	
   

  	
  No Bankruptcy Filing

  	
   

  	
  5874

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.266.28

  	
   

  	
  No Fraudulent Intent

  	
   

  	
  5874

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.276.29

  	
   

  	
  Transaction in Best
  Interests of Borrower and Guarantors; Consideration

  	
   

  	
  5975

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.286.30

  	
   

  	
  Contribution Agreement

  	
   

  	
  5975

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.29

  	
   

  	
  OFAC

  	
   

  	
  59

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.31

  	
   

  	
  Representations
  and Warranties of Guarantors

  	
   

  	
  75

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.32

  	
   

  	
  OFAC

  	
   

  	
  75

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §6.33

  	
   

  	
  Three Eldridge
  Place

  	
   

  	
  75

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §7.

  	
   

  	
  AFFIRMATIVE COVENANTS

  	
   

  	
  5976

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.1

  	
   

  	
  Punctual Payment

  	
   

  	
  5976

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.2

  	
   

  	
  Maintenance of Office

  	
   

  	
  5976

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.3

  	
   

  	
  Records and Accounts

  	
   

  	
  6076

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.4

  	
   

  	
  Financial Statements,
  Certificates and Information

  	
   

  	
  6076

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.5

  	
   

  	
  Notices

  	
   

  	
  6379

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.6

  	
   

  	
  Existence; Maintenance
  of Properties

  	
   

  	
  6481

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.7

  	
   

  	
  Insurance 64; Condemnation

  	
   

  	
  81

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.8

  	
   

  	
  Taxes; Liens

  	
   

  	
  6487

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.9

  	
   

  	
  Inspection of Properties
  and Books

  	
   

  	
  6587

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.10

  	
   

  	
  Compliance with Laws,
  Contracts, Licenses, and Permits

  	
   

  	
  6587

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.11

  	
   

  	
  Further Assurances

  	
   

  	
  6688

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.12

  	
   

  	
  Management

  	
   

  	
  88

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.13

  	
   

  	
  Leases of the
  Property

  	
   

  	
  88

  	
   

  



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.14

  	
   

  	
  Business Operations

  	
   

  	
  6689

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.137.15

  	
   

  	
  Subordination of
  Advisory Fees

  	
   

  	
  6689

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.147.16

  	
   

  	
  Registered
  Servicemark

  	
   

  	
  90

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.17

  	
   

  	
  Ownership of Real Estate

  	
   

  	
  6790

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.157.18

  	
   

  	
  Distributions of Income
  to Borrower

  	
   

  	
  6790

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.167.19

  	
   

  	
  Plan Assets

  	
   

  	
  6791

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.20

  	
   

  	
  Construction of
  Improvements on Three Eldridge Place

  	
   

  	
  91

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.21

  	
   

  	
  Inspection by
  Agent or any Lender of Construction at Three Eldridge Place

  	
   

  	
  91

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.22

  	
   

  	
  Mechanics’ Liens
  and Contest Thereof

  	
   

  	
  91

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.23

  	
   

  	
  Settlement of
  Mechanics’ Lien Claims

  	
   

  	
  91

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §7.24

  	
   

  	
  Eldridge Reserve

  	
   

  	
  92

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §8.

  	
   

  	
  NEGATIVE COVENANTS

  	
   

  	
  6792

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §8.1

  	
   

  	
  Restrictions on
  Indebtedness

  	
   

  	
  6792

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §8.2

  	
   

  	
  Restrictions on Liens,
  Etc

  	
   

  	
  6894

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §8.3

  	
   

  	
  Restrictions on
  Investments

  	
   

  	
  7095

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §8.4

  	
   

  	
  Merger, Consolidation

  	
   

  	
  7197

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §8.5

  	
   

  	
  Sale and Leaseback

  	
   

  	
  7298

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §8.6

  	
   

  	
  Compliance with
  Environmental Laws

  	
   

  	
  7298

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §8.7

  	
   

  	
  Distributions

  	
   

  	
  74100

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §8.8

  	
   

  	
  Asset Sales

  	
   

  	
  74100

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §8.9

  	
   

  	
  Restriction on
  Prepayment of Indebtedness

  	
   

  	
  74100

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §8.10

  	
   

  	
  Zoning and
  Contract Changes and Compliance

  	
   

  	
  101

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §8.11

  	
   

  	
  Derivatives Contracts

  	
   

  	
  75101

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §8.118.12

  	
   

  	
  Transactions with
  Affiliates

  	
   

  	
  75101

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §8.128.13

  	
   

  	
  Equity Pledges

  	
   

  	
  75101

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §8.138.14

  	
   

  	
  Advisory Fees

  	
   

  	
  75102

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §8.15

  	
   

  	
  Changes in Plans
  and Specifications

  	
   

  	
  102

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §8.16

  	
   

  	
  Management Fees

  	
   

  	
  102

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §9.

  	
   

  	
  FINANCIAL COVENANTS

  	
   

  	
  102

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §9.1

  	
   

  	
  Borrowing Base

  	
   

  	
  102

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §9.2

  	
   

  	
  Consolidated Total
  Indebtedness to Gross Asset Value

  	
   

  	
  75102

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §9.29.3

  	
   

  	
  Adjusted Consolidated
  EBITDA to Consolidated Fixed Charges

  	
   

  	
  75103

  	
   

  



 


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(continued)


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §9.39.4

  	
   

  	
  Minimum Consolidated
  Tangible Net Worth

  	
   

  	
  76103

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §9.49.5

  	
   

  	
  Unhedged Variable Rate
  Debt

  	
   

  	
  76103

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §10.

  	
   

  	
  CLOSING CONDITIONS

  	
   

  	
  76103

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §10.1

  	
   

  	
  Loan Documents

  	
   

  	
  76103

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §10.2

  	
   

  	
  Certified Copies of
  Organizational Documents

  	
   

  	
  76103

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §10.3

  	
   

  	
  Resolutions

  	
   

  	
  76103

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §10.4

  	
   

  	
  Incumbency Certificate;
  Authorized Signers

  	
   

  	
  76103

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §10.5

  	
   

  	
  Opinion of Counsel

  	
   

  	
  76104

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §10.6

  	
   

  	
  Payment of Fees

  	
   

  	
  77104

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §10.7

  	
   

  	
  Insurance

  	
   

  	
  104

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §10.8

  	
   

  	
  Performance; No Default

  	
   

  	
  77104

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §10.810.9

  	
   

  	
  Representations and
  Warranties

  	
   

  	
  77104

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §10.910.10

  	
   

  	
  Proceedings and
  Documents

  	
   

  	
  77104

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §10.1010.11

  	
   

  	
  Eligible Real
  Estate Qualification Documents

  	
   

  	
  104

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §10.12

  	
   

  	
  Compliance Certificate
  77 and Borrowing Base Certificate

  	
   

  	
  105

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §10.13

  	
   

  	
  Appraisals

  	
   

  	
  105

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §10.1110.14

  	
   

  	
  Consents

  	
   

  	
  77105

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §10.1210.15

  	
   

  	
  Contribution Agreement

  	
   

  	
  77105

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §10.1310.16

  	
   

  	
  Other

  	
   

  	
  77105

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §11.

  	
   

  	
  CONDITIONS TO ALL
  BORROWINGS

  	
   

  	
  77105

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §11.1

  	
   

  	
  Prior Conditions
  Satisfied

  	
   

  	
  77105

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §11.2

  	
   

  	
  Representations True; No
  Default

  	
   

  	
  78105

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §11.3

  	
   

  	
  Borrowing Documents

  	
   

  	
  78106

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §11.4

  	
   

  	
  Endorsement to
  Title Policy

  	
   

  	
  106

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §11.5

  	
   

  	
  Future Advances
  Tax Payment

  	
   

  	
  106

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §12.

  	
   

  	
  EVENTS OF DEFAULT;
  ACCELERATION; ETC

  	
   

  	
  78106

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §12.1

  	
   

  	
  Events of Default and
  Acceleration

  	
   

  	
  78106

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §12.2

  	
   

  	
  Certain Cure Periods;
  Limitation of Cure Periods

  	
   

  	
  81109

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §12.3

  	
   

  	
  Termination of
  Commitments

  	
   

  	
  81110

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §12.4

  	
   

  	
  Remedies

  	
   

  	
  82110

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §12.5

  	
   

  	
  Distribution of
  Collateral Proceeds

  	
   

  	
  82111

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §13.

  	
   

  	
  SETOFF

  	
   

  	
  83112

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §14.

  	
   

  	
  THE AGENT

  	
   

  	
  84112

  	
   

  



 


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  Page

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §14.1

  	
   

  	
  Authorization

  	
   

  	
  84112

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §14.2

  	
   

  	
  Employees and Agents

  	
   

  	
  84113

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §14.3

  	
   

  	
  No Liability

  	
   

  	
  84113

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §14.4

  	
   

  	
  No Representations

  	
   

  	
  84113

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §14.5

  	
   

  	
  Payments

  	
   

  	
  85114

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §14.6

  	
   

  	
  Holders of Notes

  	
   

  	
  86115

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §14.7

  	
   

  	
  Indemnity

  	
   

  	
  87115

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §14.8

  	
   

  	
  Agent as Lender

  	
   

  	
  87116

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §14.9

  	
   

  	
  Resignation

  	
   

  	
  87116

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §14.10

  	
   

  	
  Duties in the Case of
  Enforcement

  	
   

  	
  88116

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §14.11

  	
   

  	
  Bankruptcy

  	
   

  	
  88117

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §14.12

  	
   

  	
  Request for Agent
  Action

  	
   

  	
  117

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §14.13

  	
   

  	
  Reliance by Agent

  	
   

  	
  89118

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §14.1314.14

  	
   

  	
  Approvals

  	
   

  	
  89118

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §14.1414.15

  	
   

  	
  Borrower Not Beneficiary

  	
   

  	
  89118

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §15.

  	
   

  	
  EXPENSES

  	
   

  	
  89119

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §16.

  	
   

  	
  INDEMNIFICATION

  	
   

  	
  90120

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §17.

  	
   

  	
  SURVIVAL OF COVENANTS,
  ETC

  	
   

  	
  91120

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §18.

  	
   

  	
  ASSIGNMENT AND
  PARTICIPATION

  	
   

  	
  91121

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §18.1

  	
   

  	
  Conditions to Assignment
  by Lenders

  	
   

  	
  91121

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §18.2

  	
   

  	
  Register

  	
   

  	
  92122

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §18.3

  	
   

  	
  New Notes

  	
   

  	
  93122

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §18.4

  	
   

  	
  Participations

  	
   

  	
  93122

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §18.5

  	
   

  	
  Pledge by Lender

  	
   

  	
  93123

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §18.6

  	
   

  	
  No Assignment by
  Borrower

  	
   

  	
  93123

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §18.7

  	
   

  	
  Disclosure

  	
   

  	
  94123

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §18.8

  	
   

  	
  Mandatory Assignment

  	
   

  	
  94124

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §18.9

  	
   

  	
  Amendments to Loan
  Documents

  	
   

  	
  95124

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  §18.10

  	
   

  	
  Titled Agents

  	
   

  	
  95124

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §19.

  	
   

  	
  NOTICES

  	
   

  	
  95124

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §20.

  	
   

  	
  RELATIONSHIP

  	
   

  	
  97126

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §21.

  	
   

  	
  GOVERNING LAW; CONSENT
  TO JURISDICTION AND SERVICE

  	
   

  	
  97126

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §22.

  	
   

  	
  HEADINGS

  	
   

  	
  98127

  	
   

  



 


vi

















 


TABLE OF CONTENTS


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  Page

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §23.

  	
   

  	
  COUNTERPARTS

  	
   

  	
  98127

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §24.

  	
   

  	
  ENTIRE AGREEMENT, ETC

  	
   

  	
  98127

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §25.

  	
   

  	
  WAIVER OF JURY TRIAL AND
  CERTAIN DAMAGE CLAIMS

  	
   

  	
  98127

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §26.

  	
   

  	
  DEALINGS WITH THE
  BORROWER

  	
   

  	
  99128

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §27.

  	
   

  	
  CONSENTS, AMENDMENTS,
  WAIVERS, ETC

  	
   

  	
  99128

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §28.

  	
   

  	
  SEVERABILITY

  	
   

  	
  100129

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §29.

  	
   

  	
  TIME OF THE ESSENCE

  	
   

  	
  100129

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §30.

  	
   

  	
  NO UNWRITTEN AGREEMENTS

  	
   

  	
  100129

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §31.

  	
   

  	
  REPLACEMENT NOTES

  	
   

  	
  100129

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §32.

  	
   

  	
  NO THIRD PARTIES
  BENEFITED

  	
   

  	
  100130

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §33.

  	
   

  	
  PATRIOT ACT

  	
   

  	
  101130

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §34.

  	
   

  	
  CONSOLIDATION,
  AMENDMENT AND RESTATEMENT OF ASSIGNED NOTE

  	
   

  	
  130

  	
   

  



 


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