Exhibit 10.468


 


LOAN AGREEMENT


 


 


Dated as of December 16,
2004


 


 


Between


 


 


INLAND WESTERN PLANTATION
EXPRESS, L.L.C.,


 


 


as Borrower


 


 


and


 


 


BANK OF AMERICA, N.A.,

as Lender


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE 1 DEFINITIONS; PRINCIPLES
  OF CONSTRUCTION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 1.1. DEFINITIONS

  	
   

  
	
   

  	
  SECTION 1.2.
  PRINCIPLES OF CONSTRUCTION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 GENERAL
  TERMS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  2.1. LOAN COMMITMENT; DISBURSEMENT TO BORROWER

  	
   

  
	
   

  	
  SECTION 2.2. LOAN PAYMENTS

  	
   

  
	
   

  	
  SECTION 2.3. PREPAYMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 CONDITIONS
  PRECEDENT

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.1. ORGANIZATION

  	
   

  
	
   

  	
  SECTION 4.2. STATUS OF
  BORROWER

  	
   

  
	
   

  	
  SECTION 4.3.
  VALIDITY OF DOCUMENTS

  	
   

  
	
   

  	
  SECTION 4.4. NO CONFLICTS

  	
   

  
	
   

  	
  SECTION 4.5. LITIGATION

  	
   

  
	
   

  	
  SECTION 4.6. AGREEMENTS

  	
   

  
	
   

  	
  SECTION 4.7. SOLVENCY

  	
   

  
	
   

  	
  SECTION 4.8.
  FULL AND ACCURATE DISCLOSURE

  	
   

  
	
   

  	
  SECTION 4.9. NO PLAN ASSETS

  	
   

  
	
   

  	
  SECTION 4.10. NOT A
  FOREIGN PERSON

  	
   

  
	
   

  	
  SECTION 4.11.
  ENFORCEABILITY

  	
   

  
	
   

  	
  SECTION 4.12. BUSINESS
  PURPOSES

  	
   

  
	
   

  	
  SECTION 4.13. COMPLIANCE

  	
   

  
	
   

  	
  SECTION 4.14.
  FINANCIAL INFORMATION

  	
   

  
	
   

  	
  SECTION 4.15. CONDEMNATION

  	
   

  
	
   

  	
  SECTION
  4.16. UTILITIES AND PUBLIC ACCESS; PARKING

  	
   

  
	
   

  	
  SECTION 4.17. SEPARATE
  LOTS

  	
   

  
	
   

  	
  SECTION 4.18. ASSESSMENTS

  	
   

  
	
   

  	
  SECTION 4.19. INSURANCE

  	
   

  
	
   

  	
  SECTION 4.20. USE OF
  PROPERTY

  	
   

  
	
   

  	
  SECTION 4.21. CERTIFICATE OF
  OCCUPANCY; LICENSES

  	
   

  
	
   

  	
  SECTION 4.22. FLOOD ZONE

  	
   

  
	
   

  	
  SECTION 4.23. PHYSICAL
  CONDITION

  	
   

  
	
   

  	
  SECTION 4.24. BOUNDARIES;
  SURVEY

  	
   

  
	
   

  	
  SECTION
  4.25. LEASES

  	
   

  
	
   

  	
  SECTION 4.26.
  FILING AND RECORDING TAXES

  	
   

  
	
   

  	
  SECTION 4.27.
  MANAGEMENT AGREEMENT

  	
   

  
	
   

  	
  SECTION 4.28. ILLEGAL
  ACTIVITY

  	
   

  
	
   

  	
  SECTION 4.29.
  CONSTRUCTION EXPENSES

  	
   

  
	
   

  	
  SECTION 4.30. PERSONAL
  PROPERTY

  	
   

  
	
   

  	
  SECTION
  4.31. TAXES

  	
   

  
	
   

  	
  SECTION 4.32.
  PERMITTED ENCUMBRANCES

  	
   

  
	
   

  	
  SECTION
  4.33. FEDERAL RESERVE REGULATIONS

  	
   

  
	
   

  	
  SECTION 4.34.
  INVESTMENT COMPANY ACT

  	
   

  
	
   

  	
  SECTION
  4.35. RECIPROCAL EASEMENT AGREEMENTS

  	
   

  
	
   

  	
  SECTION
  4.36. NO CHANGE IN FACTS OR CIRCUMSTANCES; DISCLOSURE

  	
   

  



 


i





















 


	
   

  	
  SECTION 4.37. INTELLECTUAL
  PROPERTY

  	
   

  
	
   

  	
  SECTION
  4.38. COMPLIANCE WITH ANTI-TERRORISM LAWS

  	
   

  
	
   

  	
  SECTION 4.39. PATRIOT ACT

  	
   

  
	
   

  	
  SECTION 4.40. SURVIVAL

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 BORROWER
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  5.1. EXISTENCE; COMPLIANCE WITH LEGAL REQUIREMENTS

  	
   

  
	
   

  	
  SECTION 5.2.
  MAINTENANCE AND USE OF PROPERTY

  	
   

  
	
   

  	
  SECTION
  5.3. WASTE

  	
   

  
	
   

  	
  SECTION 5.4.
  TAXES AND OTHER CHARGES

  	
   

  
	
   

  	
  SECTION 5.5. LITIGATION

  	
   

  
	
   

  	
  SECTION 5.6. ACCESS TO
  PROPERTY

  	
   

  
	
   

  	
  SECTION 5.7. NOTICE OF
  DEFAULT

  	
   

  
	
   

  	
  SECTION
  5.8. COOPERATE IN LEGAL PROCEEDINGS

  	
   

  
	
   

  	
  SECTION 5.9.
  PERFORMANCE BY BORROWER

  	
   

  
	
   

  	
  SECTION 5.10.
  AWARDS; INSURANCE PROCEEDS

  	
   

  
	
   

  	
  SECTION 5.11.
  FINANCIAL REPORTING

  	
   

  
	
   

  	
  SECTION 5.12.
  ESTOPPEL STATEMENT

  	
   

  
	
   

  	
  SECTION 5.13. LEASING
  MATTERS

  	
   

  
	
   

  	
  SECTION 5.14.
  PROPERTY MANAGEMENT

  	
   

  
	
   

  	
  SECTION 5.15. LIENS

  	
   

  
	
   

  	
  SECTION 5.16. DEBT
  CANCELLATION

  	
   

  
	
   

  	
  SECTION 5.17. ZONING

  	
   

  
	
   

  	
  SECTION 5.18. ERISA

  	
   

  
	
   

  	
  SECTION 5.19. NO
  JOINT ASSESSMENT

  	
   

  
	
   

  	
  SECTION
  5.20. RECIPROCAL EASEMENT AGREEMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 ENTITY COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  6.1. SINGLE PURPOSE ENTITY/SEPARATENESS

  	
   

  
	
   

  	
  SECTION
  6.2. CHANGE OF NAME, IDENTITY OR STRUCTURE

  	
   

  
	
   

  	
  SECTION 6.3.
  BUSINESS AND OPERATIONS

  	
   

  
	
   

  	
  SECTION 6.4.
  INDEPENDENT DIRECTOR

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 NO SALE OR
  ENCUMBRANCE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 7.1.
  TRANSFER DEFINITIONS

  	
   

  
	
   

  	
  SECTION 7.2. NO
  SALE/ENCUMBRANCE

  	
   

  
	
   

  	
  SECTION 7.3.
  PERMITTED TRANSFERS

  	
   

  
	
   

  	
  SECTION 7.4. LENDER’S
  RIGHTS

  	
   

  
	
   

  	
  SECTION 7.5. ASSUMPTION

  	
   

  
	
   

  	
  SECTION 7.6. ASSUMPTION BY
  INLAND PERMITTED TRANSFEREE

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8 INSURANCE; CASUALTY; CONDEMNATION; RESTORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 8.1. INSURANCE

  	
   

  
	
   

  	
  SECTION 8.2. CASUALTY

  	
   

  
	
   

  	
  SECTION 8.3. CONDEMNATION

  	
   

  
	
   

  	
  SECTION 8.4. RESTORATION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9
  REPLACEMENTS; RESERVE FUNDS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.1. REPLACEMENTS

  	
   

  
	
   

  	
  SECTION
  9.2. TAX AND INSURANCE RESERVE FUNDS

  	
   

  
	
   

  	
  SECTION 9.3.
  RESERVE FUNDS GENERALLY

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 CASH MANAGEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 10.1.
  CASH MANAGEMENT ACCOUNT

  	
   

  
	
   

  	
  SECTION 10.2.
  DEPOSITS AND WITHDRAWALS

  	
   

  
	
   

  	
  SECTION 10.3. SECURITY
  INTEREST

  	
   

  



 


ii





















 


	
  ARTICLE 11
  EVENTS OF DEFAULT; REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 11.1. EVENT OF
  DEFAULT

  	
   

  
	
   

  	
  SECTION 11.2. REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12
  ENVIRONMENTAL PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  12.1. ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
  SECTION 12.2.
  ENVIRONMENTAL COVENANTS

  	
   

  
	
   

  	
  SECTION 12.3. LENDER’S
  RIGHTS

  	
   

  
	
   

  	
  SECTION
  12.4. OPERATIONS AND MAINTENANCE PROGRAMS

  	
   

  
	
   

  	
  SECTION 12.5.
  ENVIRONMENTAL DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13 SECONDARY
  MARKET

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 13.1. TRANSFER
  OF LOAN

  	
   

  
	
   

  	
  SECTION 13.2.
  DELEGATION OF SERVICING

  	
   

  
	
   

  	
  SECTION
  13.3. DISSEMINATION OF INFORMATION

  	
   

  
	
   

  	
  SECTION 13.4. COOPERATION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14
  INDEMNIFICATIONS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 14.1.
  GENERAL INDEMNIFICATION

  	
   

  
	
   

  	
  SECTION
  14.2. MORTGAGE AND INTANGIBLE TAX INDEMNIFICATION

  	
   

  
	
   

  	
  SECTION 14.3.
  ERISA INDEMNIFICATION

  	
   

  
	
   

  	
  SECTION 14.4. SURVIVAL

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15 EXCULPATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 15.1. EXCULPATION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 16 NOTICES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 16.1. NOTICES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 17 FURTHER
  ASSURANCES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 17.1.
  REPLACEMENT DOCUMENTS

  	
   

  
	
   

  	
  SECTION
  17.2. RECORDING OF MORTGAGE, ETC.

  	
   

  
	
   

  	
  SECTION 17.3. FURTHER
  ACTS, ETC.

  	
   

  
	
   

  	
  SECTION
  17.4. CHANGES IN TAX, DEBT, CREDIT AND DOCUMENTARY STAMP LAWS

  	
   

  
	
   

  	
  SECTION 17.5. EXPENSES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 18 WAIVERS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  18.1. REMEDIES CUMULATIVE; WAIVERS

  	
   

  
	
   

  	
  SECTION
  18.2. MODIFICATION, WAIVER IN WRITING

  	
   

  
	
   

  	
  SECTION 18.3. DELAY
  NOT A WAIVER

  	
   

  
	
   

  	
  SECTION 18.4. TRIAL BY
  JURY

  	
   

  
	
   

  	
  SECTION 18.5. WAIVER OF
  NOTICE

  	
   

  
	
   

  	
  SECTION 18.6.
  REMEDIES OF BORROWER

  	
   

  
	
   

  	
  SECTION
  18.7. WAIVER OF MARSHALLING OF ASSETS

  	
   

  
	
   

  	
  SECTION
  18.8. WAIVER OF STATUTE OF LIMITATIONS

  	
   

  
	
   

  	
  SECTION 18.9.
  WAIVER OF COUNTERCLAIM

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 19 GOVERNING LAW

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 19.1. CHOICE OF
  LAW

  	
   

  
	
   

  	
  SECTION 19.2. SEVERABILITY

  	
   

  
	
   

  	
  SECTION 19.3. PREFERENCES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 20 MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 20.1. SURVIVAL

  	
   

  
	
   

  	
  SECTION 20.2.
  LENDER’S DISCRETION

  	
   

  



 


iii





















 


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


 


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


 


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


 


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


 


“American Express” shall mean American Express Travel Related
Services Company, Inc., a New York corporation.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Closing Date” shall
mean the date of the funding of the Loan.


 


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


 


2





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


3





















 


term unsecured debt rating
is at least “A-1” by S&P) and “Aa2” by Moody’s). Notwithstanding the
foregoing, prior to a Securitization, Bank of America, N.A. shall be an
Eligible Institution.


 


“Embargoed
Person” shall
mean any person identified by OFAC or any other Person with whom a Person
resident in the United States of America may not conduct business or
transactions by prohibition of federal law or Executive Order of the President
of the United States of America.


 


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


 


“Environmental Law” shall have the meaning set forth in Section
12.5 hereof.


 


“Environmental
Liens” shall have
the meaning set forth in Section 12.5 hereof.


 


“Environmental
Report” shall
have the meaning set forth in Section 12.5 hereof.


 


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


 


“Event
of Default” shall
have the meaning set forth in Section 11.1 hereof.


 


“Exchange
Act” shall mean
the Securities and Exchange Act of 1934, as amended.


 


“Fitch”
shall mean Fitch,
Inc.


 


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


 


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


 


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


 


“Hazardous
Materials” shall
have the meaning set forth in Section 12.5 hereof.


 


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


 


“Indemnified
Parties” shall
mean (a) Lender, (b) any prior owner or holder of the Loan or Participations in
the Loan, (c) any servicer or prior servicer of the Loan, (d) any Investor or
any prior Investor in any Securities, (e) any trustees, custodians or other
fiduciaries who hold or


 


4





















 


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


 


“Independent
Director” shall
have the meaning set forth in Section 6.4(a).


 


“Inland Permitted
Transferee” shall
mean a newly-formed special purpose entity that is wholly-owned (directly or
indirectly) by Inland Retail Real Estate Trust, Inc., a Maryland corporation;
Inland Real Estate Corporation, a Maryland corporation, Inland Real Estate
Corporation, a Delaware corporation or Borrower Principal.


 


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


 


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


 


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


 


“Investor”
shall have the
meaning set forth in Section 13.3 hereof.


 


“Lease” shall have the meaning set forth in the
Mortgage.


 


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


 


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


 


“LLC Agreement” shall have the meaning set forth in Section
6.1(c).


 


5





















 


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


 


“Loan
Documents” shall
mean, collectively, this Agreement, the Note, the Mortgage, the Environmental
Indemnity, the Assignment of Management Agreement and any and all other
documents, agreements and certificates executed and/or delivered in connection
with the Loan, as the same may be amended, restated, replaced, supplemented or
otherwise modified from time to time.


 


“Lockout
Period” shall
mean the period commencing on the date hereof and ending on the date of the
second anniversary hereof.


 


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


 


“Management
Agreement” shall
mean the management agreement entered into by and between Borrower and Manager,
pursuant to which Manager is to provide management and other services with
respect to the Property, as the same may be amended, restated, replaced,
supplemented or otherwise modified in accordance with the terms of this
Agreement.


 


“Manager”
shall mean Inland US
Management LLC, a Delaware limited liability company or such other entity
selected as the manager of the Property in accordance with the terms of this
Agreement.


 


“Material
Litigation” shall
mean, with respect to any Person, any material conviction, indictment (that is
not dismissed before trial), judgment, litigation or regulatory action. For
purposes of this definition, a matter shall be deemed material if it is
reasonably foreseeable that a prudent institutional commercial real estate
mortgage lender would consider such matter as a material adverse factor in its
underwriting of the Person in question. With respect to non-criminal matters,
isolated actions occurring more than five (5) years prior to the date of a
proposed transfer shall not be deemed material provided that there is no
indication of fraud, intentional misrepresentation or intent to defraud
creditors with respect to such actions.


 


“Maturity
Date” shall have the meaning
set forth in the Note.


 


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


 


“Member”
shall have the
meaning set forth in Section 6.1(c).


 


“Monthly
Payment Amount” shall
mean the monthly payment of interest due on each Scheduled Payment Date as set
forth in the Note.


 


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


 


6





















 


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


 


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


 


“Net Proceeds
Deficiency” shall
have the meaning set forth in Section 8.4(b)(vi) hereof.


 


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


 


“Note
Rate” shall have
the meaning set forth in the Note. 


 


“OFAC”
shall have the
meaning set forth in Section 4.38 hereof.


 


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


 


“Optional
Prepayment Date” shall
have the meaning set forth in the Note.


 


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


 


“Participations”
shall have the
meaning set forth in Section 13.1 hereof. 


 


“Patriot Act” shall have the meaning set forth in Section
4.38 hereof.


 


“Permitted
Encumbrances” shall
mean collectively, (a) the Lien and security interests created by the Loan
Documents, (b) all Liens, encumbrances and other matters disclosed in the Title
Insurance Policy, (c) Liens, if any, for Taxes imposed by any Governmental
Authority not yet due or delinquent, and (d) such other title and survey
exceptions as Lender has approved or may approve in writing in Lender’s sole
discretion.


 


7





















 


“Permitted
Investments” shall
mean to the extent available from Lender or Lender’s servicer for deposits in
the Reserve Accounts and the Lockbox Account, any one or more of the following
obligations or securities acquired at a purchase price of not greater than par,
including those issued by a servicer of the Loan, the trustee under any securitization
or any of their respective Affiliates, payable on demand or having a maturity
date not later than the Business Day immediately prior to the date on which the
funds used to acquire such investment are required to be used under this
Agreement and meeting one of the appropriate standards set forth below:


 


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


 


(b)           Federal
Housing Administration debentures;


 


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


 


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


 


8





















 


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


 


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


 


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


 


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


 


9





















 


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


 


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


 


provided,
however, that no
obligation or security shall be a Permitted Investment if (A) such obligation
or security evidences a right to receive only interest payments, (B) the right
to receive principal and interest payments on such obligation or security are
derived from an underlying investment that provides a yield to maturity in
excess of one hundred twenty percent (120%) of the yield to maturity at par of
such underlying investment or (C) such obligation or security has a remaining
term to maturity in excess of one (1) year.


 


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


 


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


 


“Policies” shall have the meaning set forth in Section
8.1 hereof.


 


“Prohibited Transfer” shall have the meaning set forth in Section
7.2 hereof.


 


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


 


“Property
Condition Report” shall
mean a report prepared by a company satisfactory to Lender regarding the
physical condition of the Property, satisfactory in form and substance to
Lender in its sole discretion.


 


“Qualified
Manager” shall
mean (a) Manager or (b) a reputable and experienced professional management
organization (i) which manages, together with its affiliates, at least ten (10)
first class office buildings totaling at least 3,500,000 square feet of gross
leasable area, exclusive of the Property and (ii) approved by Lender, which
approval shall not have been unreasonably withheld and for which Lender shall
have received written confirmation from the


 


10





















 


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


 


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


 


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


 


“Release”
shall have the
meaning set forth in Section 12.5 hereof.


 


“REMIC Trust”
shall mean a “real
estate mortgage investment conduit” (within the meaning of Section 860D, or
applicable successor provisions, of the Code) that holds the Note.


 


“Rents”
shall have the
meaning set forth in the Mortgage.


 


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


 


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


 


“Reserve
Accounts” shall
mean the Tax and Insurance Reserve Account.


 


“Reserve
Funds” shall mean
the Tax and Insurance Reserve Funds.


 


“Restoration”
shall mean, following
the occurrence of a Casualty or a Condemnation which is of a type necessitating
the repair of the Property, the completion of the repair and restoration of the
Property as nearly as possible to the condition the Property was in immediately
prior to such Casualty or Condemnation, with such alterations as may be
reasonably approved by Lender.


 


“Restoration
Consultant” shall
have the meaning set forth in Section 8.4(b)(iii) hereof.


 


“Restoration
Retainage” shall
have the meaning set forth in Section 8.4(b)(iv) hereof.


 


“Restricted Party” shall have the meaning set forth in Section
7.1 hereof.


 


“Sale or
Pledge” shall
have the meaning set forth in Section 7.1 hereof.


 


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


 


“Securities”
shall have the
meaning set forth in Section 13.1 hereof.


 


“Securities
Act” shall mean
the Securities Act of 1933, as amended.


 


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


 


11





















 


“Securitization”
shall have the
meaning set forth in Section 13.1 hereof.


 


“Special Member” shall have the meaning set forth in Section
6.1(c).


 


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


 


“State”
shall mean the state
in which the Property or any part thereof is located.


 


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


 


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


 


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


 


“Tenant”
shall mean any Person
leasing, subleasing or otherwise occupying any portion of the Property under a
Lease or other occupancy agreement with Borrower, including, without
limitation, American Express, as tenant under the American Express Lease.


 


“Tenant
Direction Letter” shall
have the meaning set forth in Section 10.2(a)(i) hereof.


 


“Title
Insurance Policy” shall
mean that certain ALTA mortgagee title insurance policy issued with respect to
the Property and insuring the lien of the Mortgage.


 


“Transferee”
shall have the
meaning set forth in Section 7.5 hereof.


 


“Trigger
Rating” shall
mean the long-term unsecured debt rating of Guarantor (or American Express if
there is no Guarantor) below BBB as issued by S&P or below Baa2 as issued
by Moody’s.


 


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


 


Section 1.2.      Principles
of Construction.


 


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


 


12





















 


ARTICLE 2

GENERAL TERMS


 


Section 2.1.      Loan
Commitment; Disbursement to Borrower


 


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


 


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


 


(c)           The
Loan shall be evidenced by the Note and secured by the Mortgage and the other
Loan Documents.


 


(d)           Borrower
shall use the proceeds of the Loan to (i) pay the purchase price for acquiring
the Property, (ii) pay certain costs and expenses incurred in connection with
the closing of the Loan, as approved by Lender, (iv) fund any working capital
requirements of the Property, and (v) distribute the balance, if any, to its
members.


 


Section 2.2.      Loan Payments


 


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


 


Section 2.3.      Prepayment


 


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


 


ARTICLE 3

CONDITIONS PRECEDENT


 


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


 


ARTICLE 4

REPRESENTATIONS AND WARRANTIES


 


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


 


Section 4.1.      Organization


 


Borrower and each Borrower Principal (when
not an individual) (a) has been duly organized and is validly existing and in
good standing with requisite power and authority to own its properties and to
transact the businesses in which it is now engaged, (b) is duly qualified to do
business and is in good standing in each jurisdiction where it is required to
be so qualified in


 


13





















 


connection with its properties, businesses and operations, (c)
possesses all rights, licenses, permits and authorizations, governmental or
otherwise, necessary to entitle it to own its properties and to transact the
businesses in which it is now engaged, and the sole business of Borrower is the
ownership, management and operation of the Property, and (d) in the case of
Borrower, has full power, authority and legal right to mortgage, grant,
bargain, sell, pledge, assign, warrant, transfer and convey the Property
pursuant to the terms of the Loan Documents, and in the case of Borrower and
each Borrower Principal, has full power, authority and legal right to keep and
observe all of the terms of the Loan Documents to which it is a party. Borrower
and each Borrower Principal represent and warrant that the chart attached
hereto as Exhibit A sets forth an accurate listing of the direct and indirect
owners of the equity interests in Borrower, and each Borrower Principal (when
not an individual).


 


Section 4.2.      Status
of Borrower


 


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


 


Section 4.3.      Validity
of Documents


 


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


 


Section 4.4.      No
Conflicts


 


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


 


14





















 


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


 


Section 4.5.      Litigation


 


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


 


Section 4.6.      Agreements


 


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


 


Section 4.7.      Solvency


 


Borrower and each Borrower Principal have (a)
not entered into the transaction or executed the Note, this Agreement or any
other Loan Documents with the actual intent to hinder, delay or defraud any
creditor and (b) received reasonably equivalent value in exchange for their
obligations under such Loan Documents. Giving effect to the Loan, the fair
saleable value of the assets of Borrower and each Borrower Principal exceeds
and will, immediately following the making of the Loan, exceed the total
liabilities of Borrower and Borrower Principal, including, without limitation,
subordinated, unliquidated, disputed and contingent liabilities. No petition in
bankruptcy has been filed against Borrower, Borrower Principal, or Affiliated
Manager in the last ten (10) years, and neither Borrower nor Borrower
Principal, or Affiliated Manager in the last ten (10) years has made an
assignment for the benefit of creditors or taken advantage of any Creditors
Rights Laws. Neither Borrower nor Borrower Principal, or Affiliated Manager is contemplating
either the filing of a petition by it under any Creditors Rights Laws or the
liquidation of all or a major portion of Borrower’s assets or property, and
Borrower has no knowledge of any Person contemplating the filing of any such
petition against Borrower or Borrower Principal, or Affiliated Manager.


 


15





















 


Section 4.8.      Full
and Accurate Disclosure


 


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


 


Section 4.9.      No
Plan Assets


 


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


 


Section 4.10.    Not
a Foreign Person


 


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


 


Section 4.11.    Enforceability


 


The Loan Documents are not subject to any
right of rescission, set-off, counterclaim or defense by Borrower, including
the defense of usury, nor would the operation of any of the terms of the Loan
Documents, or the exercise of any right thereunder, render the Loan Documents
unenforceable, and neither Borrower nor Borrower Principal has asserted any
right of rescission, set-off, counterclaim or defense with respect thereto. No
Default or Event of Default exists under or with respect to any Loan Document.


 


Section 4.12.    Business
Purposes


 


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


 


Section 4.13.    Compliance


 


Except as expressly disclosed by Borrower to
Lender in writing in connection with the closing of the Loan, to Borrower’s
knowledge, Borrower and the Property, and the use and operation thereof, comply
in all material respects with all Legal Requirements, including, without
limitation, building and zoning ordinances and codes and the Americans with
Disabilities Act. To Borrower’s knowledge, Borrower is not in default or
violation of any order,


 


16





















 


writ, injunction, decree or
demand of any Governmental Authority and Borrower has received no written
notice of any such default or violation. There has not been committed by
Borrower or, to Borrower’s knowledge, any other Person in occupancy of or
involved with the operation or use of the Property any act or omission
affording any Governmental Authority the right of forfeiture as against the
Property or any part thereof or any monies paid in performance of Borrower’s
obligations under any of the Loan Documents.


 


Section 4.14.    Financial
Information


 


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


 


Section
4.15.    Condemnation


 


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


 


Section 4.16.    Utilities
and Public Access; Parking


 


To
the best of Borrower’s knowledge, the Property has adequate rights of access to
public ways and is served by water, sewer, sanitary sewer and storm drain facilities
adequate to service the Property for full utilization of the Property for its
intended uses. All public utilities necessary to the full use and enjoyment of
the Property as currently used and enjoyed are located either in the public
right-of-way abutting the Property (which are connected so as to serve the
Property without passing over other property) or in recorded easements serving
the Property and such easements are set forth in and insured by the Title
Insurance Policy. All roads necessary for the use of the Property for its
current purposes have been completed and dedicated to public use and accepted
by all Governmental Authorities. The Property has, or is served by, parking to
the extent required to comply with all Legal Requirements.


 


Section
4.17.    Separate Lots


 


The
Property is assessed for real estate tax purposes as one or more wholly
independent tax lot or lots, separate from any adjoining land or improvements
not constituting a part of such


 


17





















 


lot or lots, and no other
land or improvements is assessed and taxed together with the Property or any
portion thereof.


 


Section 4.18.    Assessments


 


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


 


Section
4.19.    Insurance


 


Borrower
has obtained and has delivered to Lender either (a) certified copies of all
Policies or, to the extent such Policies are not available as of the Closing
Date, certificates of insurance with respect to all such Policies reflecting
the insurance coverages, amounts and other requirements set forth in this
Agreement or (b) the certificate of American Express that American Express is a
self-insurer with respect to the occurrences referred to in Section 8.1 and
that the rating of American Express by the Rating Agencies has not fallen below
the Trigger Rating.


 


Section
4.20.    Use of Property


 


The
Property is used exclusively for general office purposes and other appurtenant
and related uses.


 


Section
4.21.    Certificate of Occupancy;
Licenses


 


All
certificates of occupancy and to Borrower’s knowledge all certifications,
permits, licenses and approvals, including, without limitation, certificates of
completion and any applicable liquor license required for the legal use,
occupancy and operation of the Property for the purpose intended herein, have
been obtained and are valid and in full force and effect. Borrower shall keep
and maintain (or require American Express to maintain) all licenses necessary
for the operation of the Property for the purpose intended herein. The use
being made of the Property is in conformity with the final certificate of
occupancy (or compliance, if applicable) and any other permits or licenses
issued for the Property.


 


Section
4.22.    Flood Zone


 


None
of the Improvements on the Property are located in an area identified by the
Federal Emergency Management Agency as an area having special flood hazards,
or, if any portion of the Improvements is located within such area, Borrower
will obtain or cause American Express to obtain the insurance prescribed in
Section 8.1(a)(i) at any time during the term of the Loan when American Express
ceases to be a self-insurer or when the rating of American Express by the
Rating Agencies falls below the Trigger Rating.


 


Section
4.23.    Physical Condition


 


Except
as set forth in the Property Condition Report, to Borrower’s knowledge, the
Property, including, without limitation, all buildings, improvements, parking
facilities,


 


18





















 


sidewalks, storm drainage
systems, roofs, plumbing systems, HVAC systems, fire protection systems,
electrical systems, equipment, elevators, exterior sidings and doors,
landscaping, irrigation systems and all structural components, are in good
condition, order and repair in all material respects. Except as set forth in
the Property Condition Report, to Borrower’s knowledge, there exist no
structural or other material defects or damages in the Property, as a result of
a Casualty or otherwise, and whether latent or otherwise. Borrower has not
received notice from any insurance company or bonding company of any defects or
inadequacies in the Property, or any part thereof, which would adversely affect
the insurability of the same or cause the imposition of extraordinary premiums
or charges thereon or of any termination or threatened termination of any
policy of insurance or bond.


 


Section 4.24.    Boundaries;
Survey


 


(a)           None of the Improvements which were
included in determining the appraised value of the Property lie outside the
boundaries and building restriction lines of the Property to any material
extent, and (b) no improvements on adjoining properties encroach upon the
Property and no easements or other encumbrances upon the Property encroach upon
any of the Improvements so as to materially affect the value or marketability
of the Property.


 


Section
4.25.    Leases


 


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


 


Section 4.26.    Filing
and Recording Taxes


 


All
mortgage, mortgage recording, stamp, intangible or other similar tax required
to be paid by any Person under applicable Legal Requirements currently in
effect in connection with


 


19





















 


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


 


Section 4.27.    Management
Agreement


 


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


 


Section
4.28.    Illegal Activity


 


No
portion of the Property has been or will be purchased with proceeds of any
illegal activity, and no part of the proceeds of the Loan will be used in
connection with any illegal activity.


 


Section 4.29.    Construction
Expenses


 


All
costs and expenses of any and all labor, materials, supplies and equipment used
in the construction, maintenance or repair of the Improvements have been paid
in full. To Borrower’s knowledge after due inquiry, there are no claims for
payment for work, labor or materials affecting the Property which are or may
become a lien prior to, or of equal priority with, the Liens created by the
Loan Documents.


 


Section 4.30.    Personal Property


 


Borrower
has paid in full for, and is the owner of, all Personal Property (other than
tenants’ property) used in connection with the operation of the Property, free
and clear of any and all security interests, liens or encumbrances, except for
Permitted Encumbrances and the Lien and security interest created by the Loan
Documents.


 


Section 4.31.    Taxes


 


Borrower
and Borrower Principal have filed all federal, state, county, municipal, and
city income, personal property and other tax returns required to have been
filed by them and have paid all taxes and related liabilities which have become
due pursuant to such returns or pursuant to any assessments received by them.
Neither Borrower nor Borrower Principal knows of any basis for any additional
assessment in respect of any such taxes and related liabilities for prior
years.


 


Section 4.32.    Permitted
Encumbrances


 


None
of the Permitted Encumbrances, individually or in the aggregate, materially
interferes with the benefits of the security intended to be provided by the
Loan Documents, materially and adversely affects the value of the Property,
impairs the use or the operation of the Property or impairs Borrower’s ability
to pay its obligations in a timely manner.


 


20





















 


Section 4.33.    Federal Reserve Regulations


 


Borrower
will use the proceeds of the Loan for the purposes set forth in Section 2.1(d)
hereof and not for any illegal activity. No part of the proceeds of the Loan
will be used for the purpose of purchasing or acquiring any “margin stock”
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System or for any other purpose which would be inconsistent with such
Regulation U or any other Regulations of such Board of Governors, or for any
purposes prohibited by Legal Requirements or prohibited by the terms and
conditions of this Agreement or the other Loan Documents.


 


Section 4.34.    Investment
Company Act


 


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


 


Section 4.35.    Reciprocal Easement
Agreements


 


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


 


(b)           All easements granted pursuant to the
REA which were to have survived the site preparation and completion of
construction (to the extent that the same has been completed), remain in full
force and effect and have not been released, terminated, extinguished or discharged
by agreement or otherwise;


 


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


 


(d)           The terms, conditions, covenants,
uses and restrictions contained in the REA do not conflict in any manner with
any terms, conditions, covenants, uses and restrictions contained in any Lease
or in any agreement between Borrower and occupant of any peripheral parcel, including
without limitation, conditions and restrictions with respect to kiosk
placement, tenant restrictions (type, location or exclusivity), sale of certain
goods or services, and/or other use restrictions; and


 


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


 


21





















 


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


 


Section 4.36.    No
Change in Facts or Circumstances; Disclosure


 


All
information submitted by Borrower or its agents to Lender and in all financial
statements, reports, certificates and other documents submitted in connection
with the Loan or in satisfaction of the terms thereof and all statements of
fact made by Borrower in this Agreement or in any other Loan Document, are
accurate, complete and correct in all material respects. There has been no
material adverse change in any condition, fact, circumstance or event that
would make any such information inaccurate, incomplete or otherwise misleading
in any material respect or that otherwise materially and adversely affects or
might materially and adversely affect the Property or the business operations
or the financial condition of Borrower. Borrower has disclosed to Lender all
material facts and has not failed to disclose any material fact that could
cause any representation or warranty made herein to be materially misleading.


 


Section 4.37.    Intellectual Property


 


All
trademarks, trade names and service marks necessary to the business of Borrower
as presently conducted or as Borrower contemplates conducting its business are
in good standing and, to the extent of Borrower’s actual knowledge,
uncontested. Borrower has not infringed, is not infringing, and has not
received notice of infringement with respect to asserted trademarks, trade
names and service marks of others. To Borrower’s knowledge, there is no
infringement by others of trademarks, trade names and service marks of
Borrower.


 


Section 4.38.    Compliance with Anti-Terrorism Laws


 


None
of Borrower, Borrower Principal or any Person who Controls Borrower or Borrower
Principal currently is identified by the Office of Foreign Assets Control,
Department of the Treasury (“OFAC”) or
otherwise qualifies as an Embargoed Person, and Borrower has implemented
procedures to ensure that no Person who now or hereafter owns a material direct
or indirect equity interest in Borrower is an Embargoed Person or is Controlled
by an Embargoed Person. To Borrower’s knowledge neither Borrower nor Borrower
Principal is in violation of any applicable law relating to anti-money
laundering or anti-terrorism, including, without limitation, those related to
transacting business with Embargoed Persons or the requirements of the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001, U.S. Public Law 107-56, and the related
regulations issued thereunder, including temporary regulations (collectively,
as the same may be amended from time to time, the “Patriot Act”). To the
best of Borrower’s knowledge, no tenant at the Property is currently identified
by OFAC or otherwise qualifies as an Embargoed Person, or is owned or
Controlled by an Embargoed Person.


 


Section 4.39.    Patriot Act


 


Neither
Borrower nor Borrower Principal shall (a) be or become subject at any time to
any law, regulation, or list of any government agency (including, without
limitation, the list maintained by OFAC and accessible through the OFAC
website) that prohibits or limits any


 


22





















 


lender from making any
advance or extension of credit to Borrower or from otherwise conducting
business with Borrower and Borrower Principal, or (b) fail to provide
documentary and other evidence of Borrower’s identity as may be requested by
any lender at any time to enable any lender to verify Borrower’s identity or to
comply with any applicable law or regulation, including, without limitation,
the Patriot Act. In addition, Borrower hereby agrees to provide to Lender any
additional information that Lender deems necessary from time to time in order
to ensure compliance with all applicable laws concerning money laundering and
similar activities.


 


Section 4.40.    Survival


 


Borrower agrees that, unless expressly provided otherwise, all of the
representations and warranties of Borrower set forth in this Article 4 and
elsewhere in this Agreement and in the other Loan Documents shall survive for
so long as any portion of the Debt remains owing to Lender. All
representations, warranties, covenants and agreements made in this Agreement or
in the other Loan Documents by Borrower shall be deemed to have been relied
upon by Lender notwithstanding any investigation heretofore or hereafter made
by Lender or on its behalf.


 


ARTICLE 5

BORROWER COVENANTS


 


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


 


Section 5.1.      Existence;
Compliance with Legal Requirements


 


(a)           Borrower shall do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its existence, rights, licenses, permits and franchises and comply with
all Legal Requirements applicable to it and the Property. Borrower hereby
covenants and agrees not to commit, permit or suffer to exist any act or
omission affording any Governmental Authority the right of forfeiture as
against the Property or any part thereof or any monies paid in performance of
Borrower’s obligations under any of the Loan Documents. Borrower shall at all times
maintain, preserve and protect all franchises and trade names used in
connection with the operation of the Property. So long as American Express is
in compliance with the terms of the American Express Lease with respect to the
matters described in this Section 5.1, Borrower shall be deemed in compliance
with this Section 5.1.


 


(b)           Borrower, at its own
expense, may contest or permit American Express to contest by appropriate legal
proceeding, promptly initiated and conducted in good faith and with due diligence,
the Legal Requirements affecting the Property, provided that (i) no Default or
Event of Default has occurred and is continuing; (ii) such proceeding shall be
permitted under and be conducted in accordance with the provisions of any other
instrument to which Borrower or the Property is subject and shall not constitute
a default thereunder; (iii) neither the Property, any part thereof or interest
therein, any of the tenants or occupants thereof, nor Borrower shall be affected
in any material adverse way as a result of such proceeding; (iv) non-compliance
with the


 


23





















 


Legal Requirements shall not
impose civil or criminal liability on Borrower or Lender; (v) unless the
contest is initiated and conducted by American Express pursuant to the American
Express Lease Borrower shall have furnished the security as may be required in
the proceeding or by Lender to ensure compliance by Borrower with the Legal
Requirements; and (vi) if the contest is initiated and conducted by Borrower,
Borrower shall have furnished to Lender all other items reasonably requested by
Lender. Borrower shall give written notice to Lender of any contest initiated
and conducted by Borrower promptly after initiation thereof and shall inform
Lender of any contest initiated and conducted by American Express of which
Borrower is given notice by American Express.


 


Section 5.2.      Maintenance and Use of Property


 


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


 


Section 5.3.      Waste


 


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


 


Section 5.4.      Taxes
and Other Charges


 


(a)           Borrower shall pay
or cause American Express to pay all Taxes and Other Charges now or hereafter
levied or assessed or imposed against the Property or any part thereof as the
same become due and payable. Borrower shall furnish or cause to be furnished to
Lender such receipts for the payment of the Taxes and the Other Charges as are
delivered to Borrower by American Express and, upon request by Lender, a
certificate from Borrower and Borrower Principal that as of the date of such certificate
there are no liens filed against the Property arising from the non-payment of
Taxes or Other Charges. Borrower shall not suffer nor permit American Express
to suffer and shall promptly cause to be paid and discharged any Lien or charge
whatsoever which may be or become a Lien or charge against the Property, and
shall promptly pay for all utility services provided to the Property. So long
as American Express is in


 


24





















 


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


 


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


 


Section 5.5.      Litigation


 


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


 


Section
5.6.      Access to Property


 


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


 


Section
5.7.      Notice of Default


 


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


 


25





















 


Section 5.8.      Cooperate
in Legal Proceedings


 


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


 


Section 5.9.      Performance
by Borrower


 


Borrower
shall in a timely manner observe, perform and fulfill each and every covenant,
term and provision to be observed and performed by Borrower under this
Agreement and the other Loan Documents and any other agreement or instrument
affecting or pertaining to the Property and any amendments, modifications or
changes thereto.


 


Section 5.10.    Awards;
Insurance Proceeds


 


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


 


Section 5.11.    Financial
Reporting


 


(a)           Borrower and Borrower Principal shall
keep adequate books and records of account in accordance with federal tax basis
accounting, or in accordance with other methods acceptable to Lender in its
sole discretion, consistently applied and shall furnish to Lender:


 


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


 


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


 


26





















 


fiscal
quarter or one hundred (120) days after the close of each fiscal
year of Borrower, as applicable;


 


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


 


(iv)          all financial
statements, operating statements, budgets, capital repair estimates or
projections and certifications of any kind with respect to the
foregoing delivered to Borrower by American Express under the American Express
Lease.


 


(b)           To the extent not inconsistent with
the provisions of Section 5.11(a) hereof (e.g., GAAP accounting and audits
shall not be required ), Borrower and Borrower Principal shall furnish Lender
with such other additional financial or management information (including state
and federal tax returns) as may, from time to time, be reasonably required by
Lender in form and substance satisfactory to Lender (including, without
limitation, any financial reports required to be delivered by any Tenant or any
guarantor of any Lease pursuant to the terms of such Lease), and shall furnish
to Lender and its agents convenient facilities for the examination and audit of
any such books and records


 


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


 


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


 


Section 5.12.    Estoppel Statement


 


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


 


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


 


Section 5.13.           Leasing Matters.


 


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


 


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


 


Section 5.14.           Property Management


 


(a)                                  Borrower shall (i) promptly perform and
observe all of the covenants required to be performed and observed by it under
the Management Agreement and do all things necessary to preserve and to keep
unimpaired its material rights thereunder; (ii) promptly notify Lender of any
default under the Management Agreement of which it is aware; (iii) promptly
deliver to Lender a copy of any notice of default or other material notice
received by Borrower under the Management Agreement; (iv) promptly give notice
to Lender of any notice or information that Borrower receives which indicates
that Manager is terminating the Management Agreement or that Manager is
otherwise discontinuing its management of the Property; and (v) promptly enforce
the performance and observance of all of the covenants required to be performed
and observed by Manager under the Management Agreement.


 


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


 


(c)                                  In addition to the foregoing, in the event
that Lender, in Lender’s reasonable discretion, at any time prior to the
termination of the Assignment of Management Agreement, determines that the
Property is not being managed in accordance with generally accepted management
practices for projects similarly situated, Lender may deliver written notice
thereof to Borrower and Manager, which notice shall specify with particularity
the grounds for Lender’s


 


28





















 


determination. If Lender reasonably determines that the conditions
specified in Lender’s notice are not remedied to Lender’s reasonable
satisfaction by Borrower or Manager within thirty (30) days from the date of
such notice or that Borrower or Manager has failed to diligently undertake
correcting such conditions within such thirty (30) day period, Lender may
direct Borrower to terminate the Management Agreement and to replace Manager
with a Qualified Manager on terms and conditions satisfactory to Lender, it
being understood and agreed that the management fee for such replacement
manager shall not exceed then prevailing market rates.


 


(d)                                 Borrower shall not, without the prior written
consent of Lender (which consent shall not be unreasonably withheld,
conditioned or delayed): (i) surrender, terminate or cancel the Management
Agreement or otherwise replace Manager or enter into any other management agreement
with respect to the Property; (ii) reduce or consent to the reduction of the
term of the Management Agreement; (iii) increase or consent to the increase of
the amount of any charges under the Management Agreement; or (iv) otherwise
modify, change, supplement, alter or amend, or waive or release any of its
rights and remedies under, the Management Agreement in any material respect. In
the event that Borrower replaces Manager at any time during the term of Loan
pursuant to this subsection, such Manager shall be a Qualified Manager.


 


(e)                                  Notwithstanding the foregoing, Borrower shall
be permitted to transfer the management of the Property to an Affiliate of
Manager provided that the terms of the management contract between Borrower and
such entity provides for fees no greater than, is on terms that are
substantially similar to and is no less favorable to Borrower than the
Management Agreement in effect as of the date hereof.


 


Section 5.15.           Liens


 


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


 


Section 5.16.           Debt Cancellation


 


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


 


Section 5.17.           Zoning


 


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


 


Section 5.18.           ER1SA


 


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


 


29





















 


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


 


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


 


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


 


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


 


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


 


Section 5.19.           No Joint Assessment


 


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


 


Section 5.20.           Reciprocal Easement
Agreements


 


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


 


ARTICLE 6

ENTITY COVENANTS


 


Section 6.1.                  Single Purpose
Entity/Separateness


 


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


 


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(a)                                  Borrower has not and will not:


 


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


 


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


 


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


 


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


 


(v)                                 own any subsidiary, or make any investment
in, any Person;


 


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


 


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


 


(viii)                        permit its records, books of account, bank
accounts, financial statements and accounting records (including with respect
to financial position, assets, liabilities, net worth and operating results) to
be shown on the financial statements of any holder of a beneficial interest in
Borrower unless such financial statements shall contain a footnote indicating
that Borrower is a separate legal entity and the assets of Borrower are not
available as collateral to creditors of such holder;


 


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


 


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


 


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


 


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


 


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


 


(xiv)                         fail either to hold itself out to the public
as a legal entity separate and distinct from any other Person or to conduct its
business solely in its own name or fail to correct any known misunderstanding
regarding its separate identity;


 


(xv)                            fail to maintain adequate capital for the
normal obligations reasonably foreseeable in a business of its size and
character and in light of its contemplated business operations (provided that
Borrower’s failure to do so solely because of a shortfall in cash flow derived
from the operation of the Property shall not, by itself, constitute a breach of
this covenant);


 


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


 


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


 


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


 


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


 


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


 


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


 


(b)                                 The limited liability company agreement of
Borrower (the “LLC Agreement”) shall provide that (i) upon the
occurrence of any event that causes the sole member of Borrower (“Member”)
to cease to be the member of Borrower (other than (A) upon an assignment
by Member of all of its limited liability company interest in Borrower and the
admission of the transferee in accordance with the Loan Documents and the LLC
Agreement, or (B) the resignation of Member and the admission of an additional
member of Borrower in accordance with the terms of the Loan Documents and the
LLC Agreement), any person acting as Independent Director of Borrower shall,
without any action of any other Person and simultaneously with the Member
ceasing to be the member of Borrower, automatically be admitted to Borrower (“Special Member”)
and shall continue Borrower without dissolution and (ii) Special Member
may not resign from Borrower or transfer its rights as Special Member unless
(A) a successor Special Member has been admitted to Borrower as Special Member
in accordance with requirements of Delaware law and (B) such successor Special
Member has also accepted its appointment as an Independent Director. The LLC
Agreement shall further provide that (i) Special Member shall automatically
cease to be a member of Borrower upon the admission to Borrower of a substitute
Member, (ii) Special Member shall be a member of Borrower that has no interest
in the profits, losses and capital of Borrower and has no right to receive any
distributions of Borrower assets, (iii) pursuant to Section 18-301 of the
Delaware Limited Liability Company Act (the “Act”),
Special Member shall not be required to make any capital contributions to
Borrower and shall not receive a limited liability company interest in
Borrower, (iv) Special Member, in its capacity as Special Member, may not bind
Borrower and (v) except as required by any mandatory provision of the Act,
Special Member, in its capacity as Special Member, shall have no right to vote
on, approve or otherwise consent to any action by, or matter relating to,
Borrower, including, without limitation, the merger, consolidation or
conversion of Borrower; provided, however, such prohibition shall not limit the
obligations of Special Member, in its capacity as Independent Director, to vote
on such matters required by the Loan Documents or the LLC Agreement. In order
to implement the admission to Borrower of Special Member, Special Member shall
execute a counterpart to the LLC Agreement. Prior to its admission to Borrower
as Special Member, Special Member shall not be a member of Borrower.


 


Upon the occurrence of any event that causes
the Member to cease to be a member of Borrower, to the fullest extent permitted
by law, the personal representative of Member shall, within ninety (90) days
after the occurrence of the event that terminated the continued membership of
Member in Borrower, agree in writing (i) to continue Borrower and (ii) to the
admission of the personal representative or its nominee or designee, as the
case may be, as a substitute member of Borrower, effective as of the occurrence
of the event that terminated the continued membership of Member of Borrower in
Borrower. Any action initiated by or brought against Member or Special Member
under any Creditors Rights Laws shall not cause Member or Special Member to
cease to be a member of Borrower and upon the occurrence of such an event, the
business of Borrower shall continue without dissolution. The LLC Agreement
shall provide that each of Member and Special Member waives any right it might
have to agree in writing to dissolve Borrower upon the occurrence of any action
initiated by or brought against Member or Special Member under any Creditors
Rights Laws, or the occurrence of an event that causes Member or Special Member
to cease to be a member of Borrower.


 


33





















 


Section 6.2.                  Change of Name, Identity or
Structure


 


Borrower shall not change or permit to be
changed (a) Borrower’s name, (b) Borrower’s identity (including its trade name
or names), (c) Borrower’s principal place of business set forth on the first
page of this Agreement, (d) the corporate, partnership or other organizational
structure of Borrower, or Borrower Principal, (e) Borrower’s state of
organization, or (f) Borrower’s organizational identification number, without
in each case notifying Lender of such change in writing at least thirty (30)
days prior to the effective date of such change and, in the case of a change in
Borrower’s structure, without first obtaining the prior written consent of Lender.
In addition, Borrower shall not change or permit to be changed any
organizational documents of Borrower if such change would adversely impact the
covenants set forth in Section 6.1 and Section 6.4 hereof. Borrower authorizes
Lender to file any financing statement or financing statement amendment
required by Lender to establish or maintain the validity, perfection and
priority of the security interest granted herein. At the request of Lender, Borrower
shall execute a certificate in form satisfactory to Lender listing the trade
names under which Borrower intends to operate the Property, and representing
and warranting that Borrower does business under no other trade name with
respect to the Property. If Borrower does not now have an organizational
identification number and later obtains one, or if the organizational identification
number assigned to Borrower subsequently changes, Borrower shall promptly notify
Lender of such organizational identification number or change. Nothing in this
Section 6.2 shall be deemed to restrict any express rights granted to Borrower
under Article 7 hereof.


 


Section 6.3.                  Business and Operations


 


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


 


Section 6.4.                  Independent Director


 


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


 


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


 


ARTICLE 7

NO SALE OR ENCUMBRANCE


 


Section 7.1.                  Transfer Definitions


 


For purposes of this Article 7 an “Affiliated Manager” shall mean any
managing agent in which Borrower, Borrower Principal, or any affiliate of such
entities has, directly or indirectly, any legal, beneficial or economic
interest; “Control” shall mean the
power to direct the management and policies of a Restricted Party, directly or
indirectly, whether through the ownership of voting securities or other
beneficial interests, by contract or otherwise; “Restricted Party” shall mean Borrower, Borrower Principal,
any Affiliated Manager, or any shareholder, partner, member or non-member
manager, or any direct or indirect legal or beneficial owner of Borrower,
Borrower Principal, any Affiliated Manager or any non-member manager; and a “Sale or Pledge” shall mean a voluntary or
involuntary sale, conveyance, mortgage, grant, bargain, encumbrance, pledge,
assignment, grant of any options with respect to, or any other transfer or
disposition of (directly or indirectly, voluntarily or involuntarily, by
operation of law or otherwise, and whether or not for consideration or of
record) of a legal or beneficial interest.


 


Section 7.2.                  No Sale/Encumbrance


 


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


 


(b)                                 A Prohibited Transfer shall include, but not
be limited to, (i) an installment sales agreement wherein Borrower agrees to
sell the Property or any part thereof for a price to be paid in installments;
(ii) an agreement by Borrower leasing all or a substantial part of the Property
for other than actual occupancy by a space tenant thereunder or a sale,
assignment or other transfer of, or the grant of a security interest in,
Borrower’s right, title and interest in and to any Leases or any Rents; (iii)
if a Restricted Party is a corporation, any merger, consolidation or Sale or
Pledge of such corporation’s stock or the creation or issuance of new stock in
one or a series of transactions; (iv) if a Restricted Party is a limited or
general partnership or joint venture, any merger or consolidation or the
change, removal, resignation or addition of a general partner or the Sale or
Pledge of the partnership interest of any general or limited partner or any
profits or proceeds relating to such partnership interests or the creation or
issuance of new partnership


 


35





















 


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


 


Section
7.3.                  Permitted Transfers


 


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


 


Section 7.4.                  Lender’s Rights


 


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


 


36





















 


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


 


Section 7.5.                  Assumption


 


Notwithstanding the foregoing provisions of
this Article 7, following the date which is six (6) months from the Closing
Date, Lender shall not unreasonably withhold consent to a transfer of the
Property in its entirety to, and the related assumption of the Loan by, any
Person (a “Transferee”) provided that each of the
following terms and conditions are satisfied:


 


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


 


(b)                                 Borrower shall have (i) delivered written
notice to Lender of the terms of such prospective transfer not less than
forty-five (45) days before the date on which such transfer is scheduled to
close and, concurrently therewith, all such information concerning the proposed
Transferee as Lender shall reasonably require and (ii) paid to Lender a
non-refundable processing fee in the amount of $10,000. Lender shall have the
right to approve or disapprove the proposed transfer based on its then current
underwriting and credit requirements for similar loans secured by similar
properties which loans are sold in the secondary market, such approval not to
be unreasonably withheld. In determining whether to give or withhold its
approval of the proposed transfer, Lender shall consider the experience and
track record of Transferee and its principals in owning and operating
facilities similar to the Property, the financial strength of Transferee and
its principals, the general business standing of Transferee and its principals
and Transferee’s and its principals’ relationships and experience with
contractors, vendors, tenants, lenders and other business entities; provided,
however, that, notwithstanding Lender’s agreement to consider the foregoing
factors in determining whether to give or withhold such approval, such approval
shall be given or withheld based on what Lender determines to be commercially
reasonable and, if given, may be given subject to such conditions as Lender may
deem reasonably appropriate;


 


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


 


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


 


37





















 


assumed
the obligations of Borrower Principal under the Loan Documents with respect to
all acts and events occurring or arising after the transfer of the Property
pursuant to this Section 7.5;


 


(e)                                  Borrower and Transferee, without any cost to
Lender, shall furnish any information requested by Lender for the preparation
of, and shall authorize Lender to file, new financing statements and financing
statement amendments and other documents to the fullest extent permitted by
applicable law, and shall execute any additional documents reasonably requested
by Lender;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


A consent by Lender with
respect to a transfer of the Property in its entirety to, and the related
assumption of the Loan by, a Transferee pursuant to this Section 7.5 shall not
be construed to be a waiver of the right of Lender to consent to any subsequent
Sale or Pledge of the Property. Upon the transfer of the Property pursuant to
this Section 7.5, Borrower and Borrower Principal shall be relieved of all
liability under the Loan Documents for acts, events, conditions, or
circumstances occurring or arising after the date of such transfer, except to
the extent that such acts, events, conditions, or circumstances are the
proximate result of acts, events, conditions, or circumstances that existed
prior to the date of such transfer, whether or not discovered prior or
subsequent to the date of such transfer.


 


Section 7.6.                  Assumption by Inland
Permitted Transferee


 


Notwithstanding the foregoing provisions of
this Article 7, Borrower shall be permitted to transfer the Property in its
entirety to, provided the Loan is simultaneously assumed by, an Inland
Permitted Transferee, and provided further that each of the following terms and
conditions is satisfied:


 


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


 


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


 


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


 


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


 


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


 


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


 


39





















 


insurance
endorsements or certificates and other similar materials as Lender may deem
necessary at the time of the transfer, all in form and substance satisfactory to Lender;


 


(g)                                 such Inland Permitted Transferee shall have
furnished to Lender, if such Inland Permitted Transferee is a corporation,
partnership, limited liability company or other entity, all appropriate papers
evidencing Transferee’s organization and good standing, and the qualification
of the signers to execute the assumption of the Debt, which papers shall
include certified copies of all documents relating to the organization and
formation of Transferee and of the entities, if any, which are partners or
members of Transferee. Transferee and such constituent partners, members or
shareholders of Transferee (as the case may be), as Lender shall require, shall
comply with the covenants set forth in Article 6 hereof, provided, however,
that, (i) if such Inland Permitted Transferee is a limited partnership or a
limited liability company (with more than one member), Lender may require that the
general partner or managing member of such Inland Permitted Transferee also
comply with the covenants set forth in Article 6, as modified to state that
such general partner or managing member holds an interest in the Inland
Permitted Transferee rather than an interest in the Property or (ii) if such
Inland Permitted Transferee is a single member limited liability company, the
state of organization of such entity must be Delaware and the organizational
documents must provide for a springing member upon the bankruptcy or
dissolution of the sole member;


 


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


 


(i)                                     Transferee shall furnish an opinion of counsel
satisfactory to Lender and its counsel (A) that Transferee’s formation
documents provide for the matters described in subparagraph (g) above, (B) that
the assumption of the Debt has been duly authorized, executed and delivered,
and that the Note, the Mortgage, this Agreement, the assumption agreement and
the other Loan Documents are valid, binding and enforceable against Transferee
in accordance with their terms, (C) that Transferee and any entity which is a
controlling stockholder, member or general partner of Transferee, have been
duly organized, and are in existence and good standing, and (E) with respect to
such other matters as Lender may reasonably request, including, without
limitation, customary single member limited liability company opinions in the
event that such Inland Permitted Transferee is a Delaware limited liability
company; and


 


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


 


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


 


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ARTICLE 8

INSURANCE; CASUALTY; CONDEMNATION; RESTORATION


 


Section 8.1                     Insurance


 


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


 


(i)                                     comprehensive “special causes of loss” form
of insurance (or its equivalent) on the Improvements and the Personal Property
(A) in an amount equal to not less than one hundred percent (100%) of the “Full
Replacement Cost,” which for purposes of this Agreement shall mean actual
replacement value (exclusive of costs of excavations, foundations, underground
utilities and footings) with a waiver of depreciation; (B) written on a
replacement cost basis and containing either an agreed amount endorsement with
respect to the Improvements and Personal Property or a waiver of all
co-insurance provisions; (C) providing for no deductible in excess of $10,000 for
all such insurance coverage; (D) at all times insuring against at least those
hazards that are commonly insured against under a “special causes of loss” form
of policy, as the same shall exist on the date hereof, and together with any
increase in the scope of coverage provided under such form after the date
hereof; and (E) if any of the Improvements or the use of the Property shall at
any time constitute legal non-conforming structures or uses, providing coverage
for contingent liability from Operation of Building Laws, Demolition Costs and
Increased Cost of Construction Endorsements and containing an “Ordinance or Law
Coverage” or “Enforcement” endorsement. In addition, Borrower shall obtain: (y)
if any portion of the Improvements is currently or at any time in the future
located in a “special flood hazard area” designated by the Federal Emergency
Management Agency, flood hazard insurance in an amount equal to the maximum
amount of such insurance available under the National Flood Insurance Act of
1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance
Reform Act of 1994, as each may be amended; and (z) earthquake insurance in
amounts and in form and substance reasonably satisfactory to Lender in the
event the Property is located in an area with a high degree of seismic risk,
provided that the insurance pursuant to clauses (y) and (z) hereof shall be on
terms consistent with the special causes of loss form required under this
subsection (i);


 


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


 


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


 


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


 


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


 


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


 


(vii)                           excess liability insurance in an amount not
less than $75,000,000 per occurrence on terms consistent with the commercial
general liability insurance required under subsection (ii) above; and


 


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


 


With respect to the policies required to be
maintained pursuant to clauses (i) through (viii) above, Borrower shall use
commercially reasonable efforts, consistent with those of prudent owners of
institutional quality commercial real estate, to maintain insurance against
Losses resulting from acts of terrorism.


 


(b)                                 All insurance provided for in Section 8.1(a)
shall be obtained under valid and enforceable policies (collectively, the “Policies” or in the singular, the “Policy”), and shall be subject
to the approval of Lender as to insurance companies, amounts, deductibles, loss
payees and insureds. The Policies shall be issued by financially sound and
responsible insurance companies authorized to do business in the State and
having a claims paying ability rating of “A-” or better by S&P (or such
other ratings approved by Lender) and/or a general policy rating of “A” or
better and a financial class of VIII or better by A.M. Best Company, Inc. The
Policies described in Section 8.1(a) shall designate Lender and its successors
and assigns as additional insureds, mortgagees and/or loss payee as deemed
appropriate by Lender. To the extent such Policies are not available as of the
Closing Date, Borrower shall deliver to Lender prior to the Closing Date an
Acord 28 or similar certificate of insurance evidencing the coverages and amounts
required hereunder and, upon request of Lender as soon as available after the
Closing Date, certified copies of all Policies. Not less than ten (10) days
prior to the expiration dates of any insurance coverage in place with respect
to the Property, Borrower shall deliver to Lender an Acord 28 or similar
certificate, accompanied by evidence satisfactory to Lender of payment of the premiums
due in connection therewith (the “Insurance
Premiums”), and, as
soon as available thereafter, certified copies of all renewal Policies.


 


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


 


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


 


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


 


(i)                                     no act or negligence of Borrower, or anyone
acting for Borrower, or of any Tenant or other occupant, or failure to comply
with the provisions of any Policy, which might otherwise result in a forfeiture
of the insurance or any part thereof, shall in


 


43





















 


any
way affect the validity or enforceability of the insurance insofar as Lender is
concerned;


 


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


 


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


 


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


 


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


 


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


 


Section 8.2.                  Casualty


 


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


 


Section 8.3.                  Condemnation


 


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


 


44





















 


Lender may participate in any such proceedings, and Borrower shall from
time to time deliver to Lender all instruments requested by it to permit such
participation. Borrower shall, at its expense, diligently prosecute any such
proceedings, and shall consult with Lender, its attorneys and experts, and
cooperate with them in the carrying on or defense of any such proceedings.
Notwithstanding any taking by any public or quasi-public authority through
Condemnation or otherwise (including but not limited to any transfer made in
lieu of or in anticipation of the exercise of such taking), Borrower shall
continue to pay the Debt at the time and in the manner provided for its payment
in the Note and in this Agreement and the Debt shall not be reduced until any
Award shall have been actually received and applied by Lender, after the
deduction of expenses of collection, to the reduction or discharge of the Debt.
Lender shall not be limited to the interest paid on the Award by the condemning
authority but shall be entitled to receive out of the Award interest at the
rate or rates provided herein or in the Note. If the Property or any portion
thereof is taken by a condemning authority, Borrower shall promptly commence
and diligently prosecute the Restoration of the Property and otherwise comply
with the provisions of Section 8.4, whether or not Lender makes any Net
Proceeds available pursuant to Section 8.4. If the Property is sold, through
foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender
shall have the right, whether or not a deficiency judgment on the Note shall
have been sought, recovered or denied, to receive the Award, or a portion
thereof sufficient to pay the Debt. So long as no American Express Lease
Default has occurred, the payment and allocation of any Awards shall be
governed by the American Express Lease.


 


Section 8.4.                  Restoration


 


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


 


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


 


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


 


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


 


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


 


45





















 


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


 


(C)                                The American Express Lease shall remain in
full force and effect during and after completion of the Restoration without
abatement of Rent;


 


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


 


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


 


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


 


(G)                                the Property and the use thereof after the
Restoration will be in compliance with and permitted under all Legal
Requirements;


 


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


 


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


 


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


 


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


 


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


 


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


 


(iv)                              In no event shall Lender be obligated to make
disbursements of the Net Proceeds in excess of an amount equal to the costs
actually incurred from time to time for work in place as part of the
Restoration, as certified by the Restoration Consultant, minus the Restoration
Retainage. The term “Restoration Retainage” shall
mean an amount equal to ten percent (10%) of the costs actually incurred for
work in place as part of the Restoration, as certified by the Restoration
Consultant, until the Restoration has been completed. The Restoration Retainage
shall be reduced to five percent (5%) of the costs incurred upon receipt by
Lender of satisfactory evidence that fifty percent (50%) of the Restoration has
been completed. The Restoration Retainage shall in no event, and
notwithstanding anything to the contrary set forth above in this Section 8.4(b),
be less than the amount actually held back by Borrower from contractors,
subcontractors and materialmen engaged in the Restoration. The Restoration
Retainage shall not be released until the Restoration Consultant certifies to
Lender that the Restoration has been completed in accordance with the
provisions of this Section 8.4(b) and that all approvals necessary for the
re-occupancy and use of the Property have been obtained from all appropriate
Governmental Authorities, and Lender receives evidence satisfactory to


 


47





















 


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


 


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


 


(vi)                              If at any time the Net Proceeds or the
undisbursed balance thereof shall not, in the reasonable opinion of Lender in
consultation with the Restoration Consultant, be sufficient to pay in full the
balance of the costs which are estimated by the Restoration Consultant to be
incurred in connection with the completion of the Restoration, Borrower shall
deposit the deficiency (the “Net Proceeds
Deficiency”) with
Lender before any further disbursement of the Net Proceeds shall be made. The
Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall
be disbursed for costs actually incurred in connection with the Restoration on
the same conditions applicable to the disbursement of the Net Proceeds, and
until so disbursed pursuant to this Section 8.4(b) shall constitute additional
security for the Debt and other obligations under the Loan Documents.


 


(vii)                           The excess, if any, of the Net Proceeds and
the remaining balance, if any, of the Net Proceeds Deficiency deposited with
Lender after the Restoration Consultant certifies to Lender that the
Restoration has been completed in accordance with the provisions of this
Section 8.4(b), and the receipt by Lender of evidence satisfactory to Lender
that all costs incurred in connection with the Restoration have been paid in full,
shall be remitted by Lender to Borrower, provided no Event of Default shall
have occurred and shall be continuing under the Note, this Agreement or any of
the other Loan Documents.


 


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


 


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


 


(e)                                  Notwithstanding the foregoing, so long as no
American Express Lease Default has occurred, the Net Proceeds shall be used for
restoration of the Property in accordance with the provisions of the American
Express Lease.


 


ARTICLE 9

REPLACEMENTS; RESERVE FUNDS


 


Section 9.1.                   Replacements


 


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


 


Section 9.2.                  Tax and Insurance Reserve
Funds


 


If required by Lender following a default by
American Express under the American Express Lease Borrower shall establish an
Eligible Account with Lender or Lender’s agent sufficient to discharge Borrower’s
obligations for the payment of Taxes and Insurance Premiums pursuant to Section
5.4 and Section 8.1 hereof (the “Tax and
Insurance Reserve Account”) Borrower
shall deposit into the Tax and Insurance Reserve Account on each Scheduled
Payment Date (a) one-twelfth of the Taxes that Lender estimates will be payable
during the next ensuing twelve (12) months or such higher amount necessary to
accumulate with Lender sufficient funds to pay all such Taxes at least thirty
(30) days prior to the earlier of (i) the date that the same will become
delinquent and (ii) the date that additional charges or interest will accrue
due to the non-payment thereof, and (b) except to the extent Lender has waived
the insurance escrow because the insurance required hereunder is maintained under
a blanket insurance Policy acceptable to Lender in accordance with Section
8.1(c), one-twelfth of the Insurance Premiums that Lender estimates will be
payable during the next ensuing twelve (12) months for the renewal of the
coverage afforded by the Policies upon the expiration thereof or such higher
amount necessary to accumulate with Lender sufficient funds to pay all such
Insurance Premiums at least thirty (30) days prior to the expiration of the
Policies (said amounts in (a) and (b) above hereinafter called the “Tax and Insurance Reserve Funds”). Lender will apply the Tax and Insurance
Reserve Funds to payments of Taxes and Insurance Premiums required to be made
by Borrower pursuant to Section 5.4 and Section 8.1 hereof. In making any
disbursement from the Tax and Insurance Reserve Account, Lender may do so
according to any bill, statement or estimate procured from the appropriate
public office or tax lien service (with respect to Taxes) or insurer or agent
(with respect to Insurance Premiums), without inquiry into the accuracy of such
bill, statement or estimate or into the validity of any tax, assessment, sale,
forfeiture, tax lien or title or claim


 


49





















 


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


 


Section 9.3.                  Reserve Funds Generally


 


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


 


(b)                                 Borrower grants to Lender a first-priority
perfected security interest in, and assigns and pledges to Lender, each of the
Reserve Accounts and any and all funds hereafter deposited therein as
additional security for payment of the Debt. Until expended or applied in accordance
herewith, the Reserve Accounts and the Reserve Funds shall constitute
additional security for the Debt. The provisions of this Section 9.9 are
intended to give Lender or any subsequent holder of the Loan “control” of the
Reserve Accounts within the meaning of the UCC.


 


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


 


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


 


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


 


50





















 


deemed to have been expressly pre-authorized by Borrower, and shall not
be deemed to constitute the exercise by Lender of any remedies against Borrower
unless an Event of Default has occurred and is continuing and Lender has
expressly stated in writing its intent to proceed to exercise its remedies as a
secured party, pledgee or lienholder with respect to the Reserve Accounts.


 


(f)                                    The Reserve Funds shall not constitute escrow
or trust funds and may be commingled with other monies held by Lender. Notwithstanding
anything else herein to the contrary, Lender may commingle in one or more
Eligible Accounts any and all funds controlled by Lender, including, without
limitation, funds pledged in favor of Lender by other borrowers, whether for
the same purposes as the Reserve Accounts or otherwise. Without limiting any
other provisions of this Agreement or any other Loan Document, the Reserve
Accounts may be established and held in such name or names as Lender or its
loan servicer, as agent for Lender, shall deem appropriate, including, without
limitation, in the name of Lender or such loan servicer as agent for Lender. In
the case of any Reserve Account which is held in a commingled account, Lender
or its loan servicer, as applicable, shall maintain records sufficient to
enable it to determine at all times which portion of such account is related to
the Loan. The Reserve Accounts are solely for the protection of Lender and
Lender shall have no responsibility beyond the allowance of due credit for the
sums actually received by Lender or beyond the reimbursement or payment of the
costs and expenses for which such accounts were established in accordance with
their terms. Upon assignment of the Loan by Lender, any Reserve Funds shall be
turned over to the assignee and any responsibility of Lender as assignor shall
terminate. The requirements of this Agreement concerning Reserve Accounts in no
way supersede, limit or waive any other rights or obligations of the parties
under any of the Loan Documents or under applicable law.


 


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


 


(h)                                 Borrower will maintain the security interest
created by this Section 9.9 as a first priority perfected security interest and
will defend the right, title and interest of Lender in and to the Reserve
Accounts and the Reserve Funds against the claims and demands of all Persons
whomsoever. At any time and from time to time, upon the written request of
Lender, and at the sole expense of Borrower, Borrower will promptly and duly
execute and deliver such further instruments and documents and will take such
further actions as Lender reasonably may request for the purpose of obtaining
or preserving the full benefits of this Agreement and of the rights and powers
herein granted.


 


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ARTICLE 10

CASH MANAGEMENT


 


Section
10.1.           Cash Management Account


 


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


 


(b)                                 The Cash Management Account shall be in the
name of Borrower for the benefit of Lender, provided that Borrower shall be the
owner of all funds on deposit in such accounts for federal and applicable state
and local tax purposes (except to the extent Lender retains any interest earned
on the Cash Management Account for its own account following the occurrence and
during the continuance of an Event of Default). Sums on deposit in the Cash
Management Account shall not be invested except in such Permitted Investments
as determined and directed by Lender and all income earned thereon shall be the
income of Borrower and be applied to and become part of the Cash Management
Account, to be disbursed in accordance with this Article 10. Lender shall have
no liability for any loss resulting from the investment of funds in Permitted
Investments in accordance with the terms and conditions of this Agreement.


 


(c)                                  The Cash Management Account shall be subject
to the exclusive dominion and control of Lender during the Cash Management
Period or the continuance of an Event of Default and, except as otherwise
expressly provided herein, neither Borrower, Manager nor any other party
claiming on behalf of, or through, Borrower or Manager, shall have any right of
withdrawal therefrom or any other right or power with respect thereto.


 


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


 


(e)                                  Lender shall be responsible for the
performance only of such duties with respect to the Cash Management Account as
are specifically set forth herein, and no duty shall be implied from any
provision hereof. Lender shall not be under any obligation or duty to perform any
act which would involve it in expense or liability or to institute or defend
any suit in respect hereof, or to advance any of its own monies. Borrower shall
indemnify and hold Lender and its directors, employees, officers and agents
harmless from and against any loss, cost or damage (including, without
limitation, reasonable attorneys’ fees and disbursements) incurred by such parties
in connection with the Cash Management Account other than such as result from
the gross negligence or willful misconduct of Lender or intentional
nonperformance by Lender of its obligations under this Agreement.


 


Section 10.2.           Deposits and Withdrawals


 


(a)                                  Borrower represents, warrants and covenants
that:


 


(i)                                     Concurrently with the execution of this
Agreement Borrower has executed and delivered to Lender an instruction letter
in the form of Exhibit B attached hereto addressed to American Express (the “Tenant
Direction Letter”). Upon the occurrence of


 


52





















 


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


 


(ii)           On the occurrence
of an Event of Default or the commencement of the Cash Management Period
Borrower shall, and shall cause Manager to, instruct all Persons that maintain
open accounts with Borrower or Manager with respect to the Property or with
whom Borrower or Manager does business on an “accounts receivable” basis with
respect to the Property to deliver all payments due under such accounts to the
Cash Management Account. Neither Borrower nor Manager shall direct any such
Person to make payments due under such accounts in any other manner;


 


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


 


(iv)          Without the prior
written consent of Lender, so long as any portion of the Debt remains outstanding,
during the Cash Management Period or the continuance of an Event of Default
neither Borrower nor Manager shall terminate, amend, revoke or modify the
Tenant Direction Letter in any manner whatsoever or direct or cause American
Express to pay any amount in any manner other than as provided in the Tenant
Direction Letter; and


 


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


 


(b)           Intentionally
Omitted.


 


(c)           If
an Event of Default shall have occurred and be continuing or during a Cash Management
Period, on each Scheduled Payment Date (and if such day is not a Business Day, then
the immediately preceding day which is a Business Day) commencing the month immediately
following the month during which the Cash Management Period commences, Borrower
hereby irrevocably authorizes Lender to withdraw or allocate to the
sub-accounts of the Cash Management Account, as the case may be, amounts
received in the Cash Management Account, in each case to the extent that sufficient
funds remain therefor:


 


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


 


53





















 


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


 


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


 


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


 


(iv)          funds sufficient to
pay Operating Expenses (to the extent actually incurred) for the following
month shall be allocated to the Operating Expense Reserve Account to be held
and disbursed to pay Operating Expenses;


 


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


 


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


 


(e)           If
an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably
authorizes Lender to make any and all withdrawals from the Cash Management Account
and transfers between any Reserve Account as Lender shall determine in Lender’s
sole and absolute discretion and Lender may use all funds contained in any such
accounts for any purpose, including but not limited to repayment of the Debt in
such order, proportion and priority as Lender may determine in its sole and
absolute discretion.  Lender’s right to
withdraw and apply funds as stated herein shall be in addition to all other
rights and remedies provided to Lender under this Agreement, the Note, the
Mortgage and the other Loan Documents.


 


Section 10.3.    Security
Interest


 


(a)           To
secure the full and punctual payment of the Debt and performance of all
obligations of Borrower now or hereafter existing under this Agreement and the
other Loan Documents, Borrower hereby grants to Lender a first-priority
perfected security interest in each of the Accounts and the Account Collateral.
Furthermore, Borrower shall not, without obtaining the prior written consent of
Lender, further pledge, assign or grant any security interest in any of the
foregoing or permit any Lien to attach thereto or any levy to be made thereon
or any UCC Financing Statements to be filed with respect thereto. Borrower will
maintain the security


 


54





















 


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


 


(b)           Borrower
authorizes Lender to file any financing statement or statements required by
Lender to establish or maintain the validity, perfection and priority of the
security interest granted herein in connection with the Cash Management
Account. Borrower agrees that at any time and from time to time, at the expense
of Borrower, Borrower will promptly and duly execute and deliver all further
instruments and documents, and take all further action, that may be necessary
or desirable, or that Lender may reasonably request, in order to perfect and
protect any security interest granted or purported to be granted hereby
(including, without limitation, any security interest in and to any Permitted
Investments) or to enable Lender to exercise and enforce its rights and remedies
hereunder.


 


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


 


ARTICLE 11

EVENTS OF DEFAULT; REMEDIES


 


Section 11.1.    Event
of Default


 


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


 


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


 


55





















 


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


 


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


 


(d)           if
Borrower breaches any covenant with respect to itself contained in Article 6 or
any covenant contained in Article 7 hereof;


 


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


 


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


 


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


 


56





















 


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


 


(i)            if
any federal income tax lien is filed against Borrower, any member or general
partner of Borrower, Borrower Principal, or the Property and same is not
discharged of record (or bonded or insured to Lender’s satisfaction) within
thirty (30) days after same is filed;


 


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


 


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


 


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


 


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


 


(n)           if
Borrower shall continue to be in default under any other term, covenant or
condition of this Agreement or any of the Loan Documents for more than ten (10)
days after notice from Lender in the case of any default which can be cured by
the payment of a sum of money or for thirty (30) days after notice from Lender
in the case of any other default, provided that if such default cannot
reasonably be cured within such thirty (30) day period and Borrower shall have
commenced to cure such default within such thirty (30) day period and
thereafter diligently and expeditiously proceeds to cure the same, such thirty
(30) day period shall be extended for so long as it shall require Borrower in
the exercise of due diligence to cure such default, it being agreed that no
such extension shall be for a period in excess of one hundred twenty (120)
days.


 


Section 11.2.    Remedies


 


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


 


57





















 


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


 


(b)           Upon
the occurrence of an Event of Default, all or any one or more of the rights,
powers, privileges and other remedies available to Lender against Borrower
under this Agreement or any of the other Loan Documents executed and delivered
by, or applicable to, Borrower or at law or in equity may be exercised by
Lender at any time and from time to time, whether or not all or any of the Debt
shall be declared due and payable, and whether or not Lender shall have
commenced any foreclosure proceeding or other action for the enforcement of its
rights and remedies under any of the Loan Documents with respect to the
Property. Any such actions taken by Lender shall be cumulative and concurrent
and may be pursued independently, singularly, successively, together or
otherwise, at such time and in such order as Lender may determine in its sole
discretion, to the fullest extent permitted by law, without impairing or
otherwise affecting the other rights and remedies of Lender permitted by law,
equity or contract or as set forth herein or in the other Loan Documents.


 


ARTICLE 12

ENVIRONMENTAL PROVISIONS


 


Section 12.1.    Environmental
Representations and Warranties


 


Borrower represents and warrants, except as
disclosed in an Environmental Report of the Property and information that
Borrower knows that: (a) there are no Hazardous Materials or underground
storage tanks in, on, or under the Property, except those that are both (i) in
compliance with Environmental Laws and with permits issued pursuant thereto (if
such permits are required), if any, and (ii) either (A) in the case of
Hazardous Materials, in amounts not in excess of that necessary to operate the
Property for the purposes set forth herein or (B) fully disclosed to and
approved by Lender in writing pursuant to an Environmental Report; (b) there
are no past, present or threatened Releases of Hazardous Materials in violation
of any Environmental Law or which would require remediation by a Governmental
Authority in, on, under or from the Property except as described in the
Environmental Report; (c) there is no threat of any Release of Hazardous
Materials migrating to the Property except as described in the Environmental
Report; (d) there is no past or present non-compliance with Environmental Laws,
or with permits issued pursuant thereto, in connection with the Property except
as described in the Environmental Report; (e) Borrower does not know of, and
has not received, any written or oral notice or other communication from any
Person relating to Hazardous Materials in, on, under or from the Property; (f)
the Property is free of Mold; and (g) Borrower has truthfully and fully
provided to Lender, in writing, any and all information relating to
environmental conditions in, on, under or from the Property known to Borrower
or contained in Borrower’s files and records, including but not limited to any
reports relating to Hazardous Materials in, on, under or migrating to or from
the Property and/or to the environmental condition of or the presence of Mold
at the Property.


 


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Section 12.2.    Environmental
Covenants


 


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


 


Section 12.3.    Lender’s
Rights


 


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


 


59





















 


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


 


Section 12.4.    Operations
and Maintenance Programs


 


If recommended by the Environmental Report or
any other environmental assessment or audit of the Property, Borrower shall
establish and comply with an operations and maintenance program with respect to
the Property, in form and substance reasonably acceptable to Lender, prepared
by an environmental consultant reasonably acceptable to Lender, which program
shall address any asbestos-containing material or lead based paint that may now
or in the future be detected at or on the Property. Without limiting the
generality of the preceding sentence, Lender may require (a) periodic notices
or reports to Lender in form, substance and at such intervals as Lender may
specify, (b) an amendment to such operations and maintenance program to address
changing circumstances, laws or other matters, (c) at Borrower’s sole expense,
supplemental examination of the Property by consultants specified by Lender,
(d) access to the Property by Lender, its agents or servicer, to review and
assess the environmental condition of the Property and Borrower’s compliance
with any operations and maintenance program, and (e) variation of the
operations and maintenance program in response to the reports provided by any
such consultants.


 


Section 12.5.  Environmental
Definitions


 


“Environmental
Law” means any
present and future federal, stale and local laws, statutes, ordinances, rules,
regulations, standards, policies and other government directives or
requirements, as well as common law, including but not limited to the
Comprehensive Environmental Response, Compensation and Liability Act and the
Resource Conservation and Recovery Act, that apply to Borrower or the Property
and relate to Hazardous Materials or protection of human health or the
environment. “Environmental Liens” means
all Liens and other encumbrances imposed pursuant to any Environmental Law,
whether due to any act or omission of Borrower or any other Person. “Environmental Report” 
means the written reports resulting from the environmental
site assessments of the Property delivered to Lender in connection with the
Loan. “Hazardous Materials” shall
mean petroleum and petroleum products and compounds containing them, including
gasoline, diesel fuel and oil; explosives, flammable materials; radioactive materials;
polychlorinated biphenyls and compounds containing them; lead and lead-based
paint; asbestos or asbestos-containing materials in any form that is or could
become friable; underground or above-ground storage tanks, whether empty or
containing any substance; any substance the presence of which on the Property
is prohibited by any federal, state or local authority; any substance that
requires special handling; and any other material or substance now or in the
future defined as a “hazardous substance,” “hazardous material”, “hazardous
waste”, “toxic substance”, “toxic pollutant”, “contaminant”, or “pollutant”
within the meaning of any Environmental Law. “Mold”
shall mean any mold, fungi, bacteria) or microbial matter present at
or in the Property. including, without limitation, building materials which is
in a condition, location or a type which may pose a risk to human health or
safety or the environment, may result in damage to or would adversely affect or
impair the value or marketability of the Property, “Release” of any Hazardous Materials includes but is not
limited to any release, deposit, discharge, emission, leaking, spilling,
seeping, migrating, injecting,


 


60





















 


pumping, pouring, emptying, escaping, dumping, disposing or other
movement of Hazardous Materials.


 


ARTICLE 13

SECONDARY MARKET


 


Section 13.1.    Transfer
of Loan


 


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


 


Section 13.2.    Delegation
of Servicing


 


At the option of Lender, the Loan may be
serviced by a servicer/trustee selected by Lender and Lender may delegate all
or any portion of its responsibilities under this Agreement and the other Loan
Documents to such servicer/trustee pursuant to a servicing agreement between
Lender and such servicer/trustee.


 


Section 13.3.    Dissemination
of Information


 


Lender may forward to each purchaser,
transferee, assignee, or servicer of, and each participant, or investor in, the
Loan, or any Participations and/or Securities or any of their respective
successors (collectively, the “Investor”) or
any Rating Agency rating the Loan, or any Participations and/or Securities,
each prospective Investor, and any organization maintaining databases on the
underwriting and performance of commercial mortgage loans, all documents and
information which Lender now has or may hereafter acquire relating to the Debt
and to Borrower, any managing member or general partner thereof, Borrower
Principal, and the Property, including financial statements, whether furnished
by Borrower or otherwise, as Lender determines necessary or desirable. Borrower
irrevocably waives any and all rights it may have under applicable Legal Requirements
to prohibit such disclosure, including but not limited to any right of privacy.


 


Section 13.4.    Cooperation


 


Borrower and Borrower Principal agree to
cooperate with Lender in connection with any sale or transfer of the Loan or
any Participation and/or Securities created pursuant to this Article 13,
including, without limitation, (a) the delivery of an estoppel certificate
required in accordance with Section 5.12(a) and such other documents as may be
reasonably requested by Lender, (b) the execution of such amendments to the
Loan Documents as may be requested by the holder of the Note or the Rating
Agencies or otherwise to effect the Securitization including, without
limitation, bifurcation of the Loan into two or more components and/or separate
notes; provided, however, that Borrower shall not be required to modify or
amend any Loan Document if such modification or amendment would (i) change the
interest rate, the stated maturity or the amortization of principal set forth
in the Note, except in connection with a bifurcation of the Loan which may
result in varying fixed interest rates and amortization schedules, but which
shall


 


61





















 


have the same initial weighted average coupon of the original Note, or
(ii) in the reasonable judgment of Borrower, modify or amend any other material
economic term of the Loan, or (iii) in the reasonable judgment of Borrower,
materially increase Borrower’s obligations and liabilities under the Loan
Documents, and (c) make changes to the organizational documents of Borrower and
its principals and/or use its best efforts to cause changes to the legal
opinions delivered by Borrower in connection with the Loan, provided, that such
changes shall not result in a material adverse economic effect to Borrower.
Borrower shall also furnish and Borrower and Borrower Principal consent to
Lender furnishing to such Investors or such prospective investors or such
Rating Agency any and all information concerning the Property, the American Express
Lease, the financial condition of Borrower or Borrower Principal as may be
requested by Lender, any Investor, any prospective Investor or any Rating
Agency in connection with any sale or transfer of the Loan or any
Participations or Securities. Neither Borrower nor Borrower Principal shall be
responsible for any costs incurred by Lender in connection with a
Securitization.


 


ARTICLE 14

INDEMNIFICATIONS


 


Section 14.1.    General
Indemnification


 


Borrower shall indemnify, defend and hold
harmless the Indemnified Parties from and against any and all Losses imposed
upon or incurred by or asserted against any Indemnified Parties and directly or
indirectly arising out of or in any way relating to any one or more of the
following: (a) any accident, injury to or death of persons or loss of or damage
to property occurring in, on or about the Property or any part, thereof or on
the adjoining sidewalks, curbs, adjacent property or adjacent parking areas,
streets or ways; (b) any use, nonuse or condition in, on or about the Property
or any part thereof or on the adjoining sidewalks, curbs, adjacent property or
adjacent parking areas, streets or ways; (c) performance of any labor or
services or the furnishing of any materials or other property in respect of the
Property or any part thereof; (d) any failure of the Property to be in
compliance with any applicable Legal Requirements; (e) any and all claims and
demands whatsoever which may be asserted against Lender by reason of any
alleged obligations or undertakings on its part to perform or discharge any of
the terms, covenants, or agreements contained in any Lease; (f) the holding or
investing of the Reserve Accounts, or (g) the payment of any commission, charge
or brokerage fee to anyone which may be payable in connection with the funding
of the Loan (collectively, the “Indemnified Liabilities”),
provided, however, that Borrower shall not have any obligation to
Lender hereunder to the extent that such Indemnified Liabilities arise from the
gross negligence, illegal acts, fraud or willful misconduct of Lender.   To the extent that the undertaking to
indemnify, defend and hold harmless set forth in the preceding sentence may be
unenforceable because it violates any law or public policy, Borrower shall pay
the maximum portion that it is permitted to pay and satisfy under applicable
law to the payment and satisfaction of all Indemnified Liabilities incurred by
Lender.


 


Section 14.2.    Mortgage
and Intangible Tax Indemnification


 


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


 


62





















 


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


 


Section 14.3.    ERISA
Indemnification


 


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


 


Section 14.4.    Survival


 


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


 


ARTICLE 15

EXCULPATION


 


Section 15.1.    Exculpation


 


(a)           Except
as otherwise provided herein or in the other Loan Documents, Lender shall not
enforce the liability and obligation of Borrower or Borrower Principal, as
applicable, to perform and observe the obligations contained herein or in the
other Loan Documents by any action or proceeding wherein a money judgment shall
be sought against Borrower or Borrower Principal, except that Lender may bring
a foreclosure action, action for specific performance or other appropriate
action or proceeding to enable Lender to enforce and realize upon this
Agreement, the Note, the Mortgage and the other Loan Documents, and the
interest in the Property, the Rents (following an Event of Default) and any
other collateral given to Lender created by this Agreement, the Note, the
Mortgage and the other Loan Documents; provided, however, that any judgment in
any such action or proceeding shall be enforceable against Borrower or Borrower
Principal, as applicable, only to the extent of Borrower’s or Borrower
Principal’s interest in the Property, in the Rents and in any other collateral
given to Lender. Lender, by accepting this Agreement, the Note, the Mortgage
and the other Loan Documents, agrees that it shall not, except as otherwise
provided in this Section 15.1, sue for, seek or demand any deficiency judgment
against Borrower or Borrower Principal in any such action or proceeding, under
or by reason of or under or in connection with this Agreement, the Note, the
Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall
not, however, (i) constitute a waiver, release or impairment of any obligation
evidenced or secured by this Agreement, the Note, the Mortgage or the other
Loan Documents; (ii) impair the right of Lender to name Borrower or Borrower
Principal as a party defendant in any action or suit for judicial foreclosure
and sale under this Agreement and the Mortgage; (iii) affect the validity or
enforceability of any indemnity (including, without limitation, those contained
in Section 12.6


 


63





















 


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


 


(b)           Notwithstanding
the provisions of this Section 15.1 to the contrary, Borrower and Borrower
Principal shall be personally liable to Lender on a joint and several basis for
Losses due to:


 


(i)            fraud or
intentional misrepresentation by Borrower, Borrower Principal or any other
Affiliate of Borrower or Borrower Principal in connection with the execution
and the delivery of this Agreement, the Note, the Mortgage, any of the other
Loan Documents, or any certificate, report, financial statement or other
instrument or document furnished to Lender at the time of the closing of the
Loan or during the term of the Loan;


 


(ii)           Borrower’s
misapplication or misappropriation of Rents received by Borrower after the
occurrence of an Event of Default;


 


(iii)          Borrower’s
misapplication or misappropriation of tenant security deposits or Rents
collected in advance;


 


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


 


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


 


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


 


(vii)         any act of actual
waste or arson by Borrower, any principal, Affiliate, member or general partner
thereof or by Borrower Principal, any principal, Affiliate, member or general
partner thereof; or


 


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


 


(c)           Notwithstanding
the foregoing, the agreement of Lender not to pursue recourse liability as set
forth in subsection (a) above SHALL BECOME NULL AND VOID and shall be of no
further force and effect and the Debt shall be fully recourse to Borrower and
Borrower


 


64





















 


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


 


(d)           Nothing
herein shall be deemed to be a waiver of any right which Lender may have under
Section 506(a), 506(b), 1111(b) or any other provision of the U.S. Bankruptcy
Code to file a claim for the full amount of the indebtedness secured by the
Mortgage or to require that all collateral shall continue to secure all of the
indebtedness owing to Lender in accordance with this Agreement, the Note, the
Mortgage or the other Loan Documents.


 


ARTICLE
16

NOTICES


 


Section 16.1.    Notices


 


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


 


	
  If to Lender:

  	
   

  	
  Bank of America, N.A.

  
	
   

  	
   

  	
  Capital Markets Servicing
  Group

  
	
   

  	
   

  	
  900 West Trade Street,
  Suite 650

  
	
   

  	
   

  	
  NC1-026-06-01

  
	
   

  	
   

  	
  Charlotte, North Carolina 28255

  
	
   

  	
   

  	
  Attn: Servicing Manager

  
	
   

  	
   

  	
  Telephone No: (866)
  531-0957

  



 


65





















 


	
  If to Borrower:

  	
   

  	
  Inland Western Plantation
  Express, L.L.C.

  
	
   

  	
   

  	
  c/o Inland Real Estate
  Investment Corporation

  
	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
  Oak Brook, Illinois 60523

  
	
   

  	
   

  	
  Attention: Roberta Matlin,
  Vice President

  
	
   

  	
   

  	
  Facsimile No.:
  630-218-4965

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  The Inland Real Estate
  Group, Inc.

  
	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
  Oak Brook, Illinois 60523

  
	
   

  	
   

  	
  Attention: General Counsel

  
	
   

  	
   

  	
  Facsimile No.:
  630-218-4900

  
	
   

  	
   

  	
   

  
	
  If to Borrower

  	
   

  	
   

  
	
  Principal:

  	
   

  	
  Inland Western Retail Real
  Estate Trust, Inc.

  
	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
  Oak Brook, Illinois 60523

  
	
   

  	
   

  	
  Roberta Matlin, Vice
  President

  
	
   

  	
   

  	
  Facsimile No.:
  630-218-4965

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  The Inland Real Estate Group, Inc.

  
	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
  Oak Brook, Illinois 60523

  
	
   

  	
   

  	
  Attention: General Counsel

  
	
   

  	
   

  	
  Facsimile No.: 630-218-4900

  



 


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


 


ARTICLE 17

FURTHER ASSURANCES


 


Section 17.1.    Replacement
Documents


 


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


 


Section 17.2.    Recording
of Mortgage, etc.


 


Borrower forthwith upon the execution and
delivery of the Mortgage and thereafter, from time to time, will cause the
Mortgage and any of the other Loan Documents creating a lien or security
interest or evidencing the lien hereof upon the Property and each instrument of
further


 


66





















 


assurance to be filed, registered or recorded in such manner and in
such places as may be required by any present or future law in order to publish
notice of and fully to protect and perfect the lien or security interest hereof
upon, and the interest of Lender in, the Property. Borrower will pay all taxes,
filing, registration or recording fees, and all expenses incident to the preparation,
execution, acknowledgment and/or recording of the Note, the Mortgage, the other
Loan Documents, any note, deed of trust or mortgage supplemental hereto, any
security instrument with respect to the Property and any instrument of further
assurance, and any modification or amendment of the foregoing documents, and
all federal, state, county and municipal taxes, duties, imposts, assessments
and charges arising out of or in connection with the execution and delivery of
the Mortgage, any deed of trust or mortgage supplemental hereto, any security
instrument with respect to the Property or any instrument of further assurance,
and any modification or amendment of the foregoing documents, except where
prohibited by law so to do.


 


Section 17.3.    Further
Acts, Etc.


 


Borrower will, at the cost of Borrower
(except with respect to costs incurred by Lender, for which Lender shall be
responsible), do, execute, acknowledge and deliver all and every further acts,
deeds, conveyances, deeds of trust, mortgages, assignments, security
agreements, control agreements, notices of assignments, transfers and
assurances as Lender shall, from time to time, reasonably require, for the
better assuring, conveying, assigning, transferring, and confirming unto Lender
the property and rights hereby mortgaged, deeded, granted, bargained, sold,
conveyed, confirmed, pledged, assigned, warranted and transferred or intended
now or hereafter so to be, or which Borrower may be or may hereafter become
bound to convey or assign to Lender, or for carrying out the intention or
facilitating the performance of the terms of this Agreement or for filing,
registering or recording the Mortgage, or for complying with all Legal
Requirements. Borrower, on demand, will execute and deliver, and in the event
it shall fail to so execute and deliver, hereby authorizes Lender to execute in
the name of Borrower or without the signature of Borrower to the extent Lender
may lawfully do so, one or more financing statements and financing statement
amendments to evidence more effectively, perfect and maintain the priority of
the security interest of Lender in the Property. Borrower grants to Lender an
irrevocable power of attorney coupled with an interest for the purpose of
exercising and perfecting any and all rights and remedies available to Lender
at law and in equity, including without limitation, such rights and remedies
available to Lender pursuant to this Section 17.3.


 


Section 17.4.    Changes
in Tax, Debt, Credit and Documentary Stamp Laws


 


(a)           If any law is enacted or adopted or
amended after the date of this Agreement which deducts the Debt from the value
of the Property for the purpose of taxation or which imposes a tax, either
directly or indirectly, on the Debt or Lender’s interest in the Property,
Borrower will pay the tax, with interest and penalties thereon, if any. If
Lender is advised by counsel chosen by it that the payment of tax by Borrower
would be unlawful or taxable to Lender or unenforceable or provide the basis
for a defense of usury then Lender shall have the option by written notice of
not less than one hundred eighty (80) days to declare the Debt immediately due
and payable.


 


67





















 


(b)           Borrower will not claim or demand or
be entitled to any credit or credits on account of the Debt for any part of the
Taxes or Other Charges assessed against the Property, or any part thereof, and
no deduction shall otherwise be made or claimed from the assessed value of the
Property, or any part thereof, for real estate tax purposes by reason of the
Mortgage or the Debt. If such claim, credit or deduction shall be required by
law, Lender shall have the option, by written notice of not less than one
hundred eighty (80) days, to declare the Debt immediately due and payable.


 


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


 


Section 17.5.    Expenses


 


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


 


68





















 


ARTICLE 18

WAIVERS


 


Section 18.1.    Remedies
Cumulative; Waivers


 


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


 


Section 18.2.    Modification,
Waiver in Writing


 


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


 


Section 18.3.    Delay
Not a Waiver


 


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


 


Section 18.4.    Trial
by Jury


 


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


 


69





















 


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


 


Section 18.5.    Waiver
of Notice


 


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


 


Section 18.6.    Remedies
of Borrower


 


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


 


Section 18.7.    Waiver
of Marshalling of Assets


 


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


 


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Section 18.8.    Waiver
of Statute of Limitations


 


Borrower hereby expressly waives and
releases, to the fullest extent permitted by law, the pleading of any statute
of limitations as a defense to payment of the Debt or performance of its Other
Obligations.


 


Section 18.9.    Waiver
of Counterclaim


 


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


 


ARTICLE 19

GOVERNING LAW


 


Section 19.1.    Choice
of Law


 


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


 


Section 19.2.    Severability


 


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


 


Section 19.3.    Preferences


 


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


 


71





















 


ARTICLE 20

MISCELLANEOUS


 


Section 20.1.    Survival


 


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


 


Section 20.2.    Lender’s
Discretion


 


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


 


Section 20.3.    Headings


 


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


 


Section 20.4.    Cost
of Enforcement


 


In the event (a) that the Mortgage is
foreclosed in whole or in part, (b) of the bankruptcy, insolvency, rehabilitation
or other similar proceeding in respect of Borrower or any of its constituent
Persons or an assignment by Borrower or any of its constituent Persons for the
benefit of its creditors, or (c) Lender exercises any of its other remedies
under this Agreement or any of the other Loan Documents, Borrower shall be
chargeable with and agrees to pay all costs of collection and defense,
including attorneys’ fees and costs, incurred by Lender or Borrower in
connection therewith and in connection with any appellate proceeding or
post-judgment action involved therein, together with all required service or
use taxes.


 


Section 20.5.    Schedules
Incorporated


 


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


 


Section 20.6.    Offsets,
Counterclaims and Defenses


 


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


 


72





















 


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


 


Section 20.7.    No
Joint Venture or Partnership; No Third Party Beneficiaries


 


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


 


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


 


(c)           The
general partners, members, principals and (if Borrower is a trust) beneficial owners
of Borrower are experienced in the ownership and operation of properties
similar to the Property, and Borrower and Lender are relying solely upon such
expertise and business plan in connection with the ownership and operation of
the Property.  Borrower is not relying on
Lender’s expertise, business acumen or advice in connection with the Property.


 


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


 


(e)           By
accepting or approving anything required to be observed, performed or fulfilled
or to be given to Lender pursuant to this Agreement, the Mortgage, the Note or
the other Loan Documents, including, without limitation, any officer’s
certificate, balance sheet, statement of profit and loss or other financial
statement, survey, appraisal, or insurance policy, Lender shall not be deemed
to have warranted, consented to, or affirmed the sufficiency, the legality or effectiveness
of same, and such acceptance or approval thereof shall not constitute any
warranty or affirmation with respect thereto by Lender.


 


(f)            Borrower
recognizes and acknowledges that in accepting this Agreement, the Note, the
Mortgage and the other Loan Documents, Lender is expressly and primarily
relying on the truth and accuracy of the representations and warranties set
forth in Article 4 of this Agreement without any obligation to investigate the
Property and notwithstanding any investigation of the Property by Lender; that
such reliance existed on the part of Lender prior to


 


73





















 


the date hereof, that the warranties and representations are a material
inducement to Lender in making the Loan; and that Lender would not be willing
to make the Loan and accept this Agreement, the Note, the Mortgage and the
other Loan Documents in the absence of the warranties and representations as
set forth in Article 4 of this Agreement.


 


Section 20.8.    Publicity


 


All news releases, publicity or advertising
by Borrower or its Affiliates through any media intended to reach the general
public which refers to the Loan, Lender, Banc of America Securities LLC, or any
of their Affiliates shall be subject to the prior written approval of Lender,
not to be unreasonably withheld. Lender shall be permitted to make any news,
releases, publicity or advertising by Lender or its Affiliates through any
media intended to reach the general public which refers to the Loan, the
Property, Borrower, Borrower Principal and their respective Affiliates without
the approval of Borrower or any such Persons. Borrower also agrees that Lender
may share any information pertaining to the Loan with Banc of America
Corporation, including its bank subsidiaries, Bane of America Securities LLC
and any other Affiliates of the foregoing, in connection with the sale or
transfer of the Loan or any Participations and/or Securities created.


 


Section 20.9.    Conflict; Construction of Documents;
Reliance


 


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


 


Section
20.10. Entire Agreement


 


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


 


74





















 


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


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INLAND WESTERN PLANTATION
  EXPRESS, L.L.C., a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  Inland Western Retail Real
  Estate Trust, Inc., a Maryland corporation, its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Debra A. Palmer

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Debra A. Palmer

  	
   

  
	
   

  	
   

  	
  Its:

  	
  Asst. Sec.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BORROWER PRINCIPAL:

  
	
   

  	
   

  
	
   

  	
  Acknowledged and agreed to
  with respect to its obligations set forth in Article 4, Section 12.6, Article
  13, Article 15 and Article 18 hereof:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INLAND WESTERN RETAIL REAL
  ESTATE TRUST INC., a Maryland corporation, its

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Debra A. Palmer

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Debra A. Palmer

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Asst. Sec.

  	
   

  
								



 


 


[ADDITIONAL SIGNATURE PAGE TO FOLLOW]


 





















 


	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A., a
  national banking association

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lisa K. McGee

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Lisa K. McGee

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 





















 


EXHIBIT A


 


Borrower Equity Ownership
Structure


 





















 


EXHIBIT B


 


Tenant Direction Letter