**Exhibit 10.3**

 

EXECUTION COPY

 

MASTER CREDIT FACILITY AGREEMENT

 

BY AND BETWEEN

 

**BORROWERS SIGNATORY HERETO**

 

**IDOT GUARANTORS SIGNATORY HERETO**

 

AND

 

**LEHMAN BROTHERS HOLDINGS INC.,**

 

**BANK OF AMERICA, N.A.,**and

 

**BARCLAYS CAPITAL REAL ESTATE INC.**

 

DATED AS OF

 

**October 5, 2007**

 

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TABLE OF CONTENTS

 

 
| ** **                                      | ** ** | ** **                                                               | ** ** | **Page** |
|-------------------------------------------------|------------|--------------------------------------------------------------------------|------------|----------|
|                                            |       |                                                                     |
| ARTICLE 1  THE COMMITMENT TO MAKE LOANS         |       | 3                                                                        |
| Section 1.01.                                   |       | The  Commitment to Make Loans                                            |       | 3        |
| Section 1.02.                                   |       | Maturity  Date of Loans; Amortization; Prepayment                        |       | 4        |
| Section 1.03.                                   |       | Interest on  Loans                                                       |       | 4        |
| Section 1.04.                                   |       | Notes                                                                    |       | 5        |
| Section 1.05.                                   |       | Extension of  Variable Loans                                             |       | 5        |
| Section 1.06.                                   |       | Interest  Rate Hedge                                                     |       | 6        |
| ARTICLE 2  THE LOANS                            |       | 7                                                                        |
| Section 2.01.                                   |       | Rate Setting  for a Loan                                                 |       | 7        |
| Section 2.02.                                   |       | Breakage and  Other Costs                                                |       | 7        |
| Section 2.03.                                   |       | Loans                                                                    |       | 8        |
| Section 2.04.                                   |       | Determination  of Allocable Loan Amount and Valuations                   |       | 8        |
| Section 2.05.                                   |       | Additional  Fixed Loans Made on Decreases in Loan to Value Ratio and     |       |     |
|                                            |       | Increases in  Debt Service Coverage Ratio                                |       | 10       |
| Section 2.06.                                   |       | Maximum  Amount of All Loans                                             |       | 11       |
| ARTICLE 3  COLLATERAL CHANGES                   |       | 11                                                                       |
| Section 3.01.                                   |       | Right to  Obtain Releases of Collateral                                  |       | 11       |
| Section 3.02.                                   |       | Procedure  for Obtaining Releases of Collateral                          |       | 11       |
| Section 3.03.                                   |       | Substitutions                                                            |       | 14       |
| ARTICLE 4  CONDITIONS PRECEDENT TO ALL REQUESTS |       | 19                                                                       |
| Section 4.01.                                   |       | Conditions Applicable  to All Requests                                   |       | 19       |
| Section 4.02.                                   |       | Conditions  Precedent to Initial Loan                                    |       | 21       |
| Section 4.03.                                   |       | Conditions  Precedent to Additional Fixed Loans                          |       | 22       |
| Section 4.04.                                   |       | Conditions  Precedent to Release of Property from the Collateral Pool    |       | 23       |
| Section 4.05.                                   |       | Conditions  Precedent to Substitution of a Substitute Mortgaged Property |       |     |
|                                            |       | to the  Collateral Pool                                                  |       | 25       |
| Section 4.06.                                   |       | Delivery of  Opinion Relating to Loan Request or Substitution Request    |       | 25       |
| Section 4.07.                                   |       | Delivery of  Property-Related Documents                                  |       | 26       |
| Section 4.08.                                   |       | Conditions  Precedent to Letters of Credit                               |       | 27       |
| ARTICLE 5  REPRESENTATIONS AND WARRANTIES       |       | 28                                                                       |
| Section 5.01.                                   |       | Representations  and Warranties of Borrower                              |       | 28       |
| Section 5.02.                                   |       | Representations  and Warranties of Lender                                |       | 28       |
| ARTICLE 6  AFFIRMATIVE COVENANTS OF BORROWER    |       | 29                                                                       |
| Section 6.01.                                   |       | Compliance  with Agreements                                              |       | 29       |
| Section 6.02.                                   |       | Maintenance  of Existence                                                |       | 29       |
| Section 6.03.                                   |       | Financial  Statements; Accountants’ Reports; Other Information      |       | 29       |
| Section 6.04.                                   |       | Access to  Records; Discussions With Officers and Accountants            |       | 32       |
| Section 6.05.                                   |       | Certificate  of Compliance                                               |       | 33       |
| Section 6.06.                                   |       | Maintain  Licenses, Permits, Etc.                                        |       | 33       |
| Section 6.07.                                   |       | Inform  Lender of Material Events                                        |       | 33       |
| Section 6.08.                                   |       | Compliance  with Applicable Laws                                         |       | 34       |
| Section 6.09.                                   |       | Alterations to  the Mortgaged Properties                                 |       | 34       |

 

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| Section 6.10.                             |   | Loan  Document Taxes                                                       |   | 35     |
|-------------------------------------------|--------|----------------------------------------------------------------------------|--------|--------|
| Section 6.11.                             |   | Further  Assurances                                                        |   | 36     |
| Section 6.12.                             |   | Ownership                                                                  |   | 36     |
| Section 6.13.                             |   | Transfer of  Ownership Interests in Borrower Parties                       |   | 37     |
| Section 6.14.                             |   | Transfer of  Ownership of Mortgaged Property                               |   | 38     |
| Section 6.15.                             |   | Change in  Senior Management                                               |   | 40     |
| Section 6.16.                             |   | Date-Down  Endorsements                                                    |   | 40     |
| Section 6.17.                             |   | Ownership of  Mortgaged Properties                                         |   | 40     |
| Section 6.18.                             |   | Change in  Property Manager                                                |   | 40     |
| Section 6.19.                             |   | ADA  Litigation                                                            |   | 41     |
| Section 6.20.                             |   | Special  Covenant Regarding Newport Village                                |   | 41     |
| Section 6.21.                             |   | Special  Covenant Regarding The Bennington                                 |   | 41     |
| Section 6.22.                             |   | Special  Covenant Regarding Oakwood Long Beach Marina                      |   | 41     |
| Section 6.23.                             |   | Special  Covenant Regarding Archstone del Rey and Oakwood Marina del Rey   |   | 42     |
| Section 6.24.                             |   | Special  Covenant Regarding The Statesman                                  |   | 42     |
| Section 6.25.                             |   | Special  Covenant Regarding Connecticut Heights                            |   | 42     |
| Section 6.26.                             |   | Special  Covenant Regarding Line of Credit Availability                    |   | 43     |
| Section 6.27.                             |   | Special  Covenant Regarding Key West and The Westmont                      |   | 43     |
| ARTICLE 7  NEGATIVE COVENANTS OF BORROWER |   | 43                                                                         |
| Section 7.01.                             |   | Other  Activities                                                          |   | 43     |
| Section 7.02.                             |   | Liens                                                                      |   | 44     |
| Section 7.03.                             |   | Indebtedness                                                               |   | 44     |
| Section 7.04.                             |   | Principal  Place of Business                                               |   | 45     |
| Section 7.05.                             |   | Condominiums                                                               |   | 45     |
| Section 7.06.                             |   | Restrictions  on Distributions                                             |   | 45     |
| Section 7.07.                             |   | Master  Leases                                                             |   | 45     |
| Section 7.08.                             |   | Cash  Management                                                           |   | 46     |
| ARTICLE 8  FEES                           |   | 46                                                                         |
| Section 8.01.                             |   | Re-Underwriting  Fee                                                       |   | 46     |
| Section 8.02.                             |   | Origination  Fee                                                           |   | 46     |
| Section 8.03.                             |   | Due  Diligence Fees                                                        |   | 46     |
| Section 8.04.                             |   | Legal Fees  and Expenses                                                   |   | 47     |
| Section 8.05.                             |   | Failure to  Close any Request                                              |   | 47     |
| ARTICLE 9  EVENTS OF DEFAULT              |   | 48                                                                         |
| Section  9.01.                            |   | Events of  Default                                                         |   | 48     |
| ARTICLE 10  REMEDIES                      |   | 50                                                                         |
| Section  10.01.                           |   | Remedies;  Waivers                                                         |   | 50     |
| Section  10.02.                           |   | Waivers;  Rescission of Declaration                                        |   | 51     |
| Section  10.03.                           |   | Lender’s  Right to Protect Collateral and Perform Covenants and Other |   |   |
|                                      |   | Obligations                                                                |   | 51     |
| Section  10.04.                           |   | No Remedy  Exclusive                                                       |   | 52     |
| Section  10.05.                           |   | No Waiver                                                                  |   | 52     |
| Section  10.06.                           |   | No Notice                                                                  |   | 52     |
| ARTICLE 11  IMPOSITION DEPOSITS           |   | 52                                                                         |

 

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| Section  11.01.                          |   | Insurance  and Water/Sewer Waived; Other Imposition Deposits Required    |   | 52 |
|------------------------------------------|--------|--------------------------------------------------------------------------|--------|----|
| Section  11.02.                          |   | Imposition  Deposits                                                     |   | 53 |
| Section  11.03.                          |   | Replacement  Reserves                                                    |   | 53 |
| Section  11.04.                          |   | Completion/Repair  Reserves                                              |   | 53 |
| ARTICLE 12  LIMITS ON PERSONAL LIABILITY |   | 54                                                                       |
| Section  12.01.                          |   | Personal  Liability to Borrower                                          |   | 54 |
| Section  12.02.                          |   | Additional  Borrowers                                                    |   | 56 |
| Section  12.03.                          |   | Borrower  Agency Provisions                                              |   | 57 |
| Section  12.04.                          |   | Waivers With  Respect to Other Borrower Secured Obligation               |   | 57 |
| Section  12.05.                          |   | Joint and  Several Obligation; Cross-Guaranty                            |   | 62 |
| Section  12.06.                          |   | No  Impairment                                                           |   | 62 |
| Section  12.07.                          |   | Election of  Remedies                                                    |   | 62 |
| Section  12.08.                          |   | Subordination  of Other Obligations                                      |   | 63 |
| Section  12.09.                          |   | Insolvency  and Liability of Other Borrower                              |   | 64 |
| Section  12.10.                          |   | Preferences,  Fraudulent Conveyances, Etc.                               |   | 65 |
| Section  12.11.                          |   | Maximum  Liability of Each Borrower                                      |   | 65 |
| Section  12.12.                          |   | Liability  Cumulative                                                    |   | 66 |
| ARTICLE 13  MISCELLANEOUS PROVISIONS     |   | 66                                                                       |
| Section  13.01.                          |   | Counterparts                                                             |   | 66 |
| Section  13.02.                          |   | Amendments,  Changes and Modifications                                   |   | 66 |
| Section  13.03.                          |   | Payment of  Costs, Fees and Expenses                                     |   | 66 |
| Section  13.04.                          |   | Payment  Procedure                                                       |   | 67 |
| Section  13.05.                          |   | Payments on  Business Days                                               |   | 67 |
| Section  13.06.                          |   | Choice of  Law; Consent to Jurisdiction; Waiver of Jury Trial            |   | 67 |
| Section  13.07.                          |   | Severability                                                             |   | 69 |
| Section  13.08.                          |   | Notices                                                                  |   | 69 |
| Section  13.09.                          |   | Further  Assurances and Corrective Instruments                           |   | 71 |
| Section  13.10.                          |   | Term of this  Agreement                                                  |   | 72 |
| Section  13.11.                          |   | Assignments;  Third-Party Rights                                         |   | 72 |
| Section  13.12.                          |   | Headings                                                                 |   | 72 |
| Section  13.13.                          |   | General  Interpretive Principles                                         |   | 72 |
| Section  13.14.                          |   | Interpretation                                                           |   | 72 |
| Section  13.15.                          |   | Standards  for Decisions, Etc.                                           |   | 73 |
| Section  13.16.                          |   | Decisions in  Writing                                                    |   | 73 |
| Section  13.17.                          |   | Approval of  Waivers                                                     |   | 73 |
| Section  13.18.                          |   | USA Patriot  Act                                                         |   | 73 |
| Section  13.19.                          |   | All Asset  Filings                                                       |   | 73 |
| Section  13.20.                          |   | Special  Provisions Regarding ASN Kendall Square LLC                     |   | 73 |
| Section  13.21.                          |   | Special  Provisions Regarding Payment of Interest on Imposition Deposits |   | 74 |

 

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EXHIBITS

 
| EXHIBIT A   | Schedule of  Collateral Pool Borrowers, Mortgaged Properties, Collateral Pools, Initial  Loans and Initial Valuations |
|-------------|-----------------------------------------------------------------------------------------------------------------------|
| EXHIBIT B   | Fixed Loan  Note                                                                                                      |
| EXHIBIT C   | Variable  Loan Note                                                                                                   |
| EXHIBIT D   | Guaranty                                                                                                              |
| EXHIBIT E   | Confirmation  of Guaranty                                                                                             |
| EXHIBIT F   | Compliance  Certificate                                                                                               |
| EXHIBIT G-1 | Organizational  Certificate (Borrower)                                                                                |
| EXHIBIT G-2 | Organizational  Certificate (Guarantor)                                                                               |
| EXHIBIT G-3 | Organizational  Certificate (IDOT Guarantor)                                                                          |
| EXHIBIT H   | Rate Form                                                                                                             |
| EXHIBIT I   | Loan Request                                                                                                          |
| EXHIBIT J   | Request  (Substitution/Release)                                                                                       |
| EXHIBIT K   | Confirmation  of Obligations                                                                                          |
| EXHIBIT L   | Certificate  of Borrower                                                                                              |
| EXHIBIT M   | List of  Master Leases                                                                                                |
| EXHIBIT N   | Permitted  Investments                                                                                                |
| EXHIBIT O   | Hedge  Security Agreement                                                                                             |
| EXHIBIT P   | Form of  Letter of Credit                                                                                             |
| EXHIBIT Q   | Forms of  Master Lease Estoppel and Subordination Agreement                                                           |
|        |                                                                                                                  |
| APPENDIX I  | Definitions                                                                                                           |

 

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**MASTER CREDIT FACILITY AGREEMENT**

 

THIS MASTERCREDIT FACILITY AGREEMENT is made as of the 5th day of October, 2007, by and among (i) (a) the **Borrowers identified on Schedule I**attachedhereto, (b) such Additional Borrowers as may from time to time become Borrowersunder this Agreement (individually and collectively, “**Borrower**”), (c) the **Maryland Indemnity Deed of Trust Guarantors identifiedon Schedule II**attached hereto, and (d) such AdditionalMaryland Indemnity Deed of Trust Guarantors as may from time to time becomeIDOT Guarantors under this Agreement (the entities described in (c) and (d),individually and collectively, “**IDOTGuarantor**”); and (ii) **LEHMANBROTHERS HOLDINGS INC.**, a Delaware corporation, **BANK OF AMERICA, N.A.**, a national bankingassociation, and **BARCLAYS CAPITAL REAL ESTATEINC.**, a Delaware corporation (individually and collectively, “**Lender**”).

 

**RECITALS**

 

A.            Each Borrower and IDOT Guarantorowns a Multifamily Residential Property (in fee simple or as tenant under aground lease) as more particularly described in Exhibit A to thisAgreement (unless otherwise defined or the context clearly indicates otherwise,capitalized terms shall have the meanings ascribed to such terms in AppendixI of this Agreement); reference to “relevant” or “applicable” Loans,Mortgaged Properties or Loan Documents shall refer to the Loans made to aCollateral Pool Borrower, the Mortgaged Properties securing such Loans or theLoan Documents entered into by such Collateral Pool Borrower in respect of suchLoans, respectively. As set forth below, each Mortgaged Property shall be partof a Collateral Pool and each such Mortgaged Property in a Collateral Poolshall secure all Loans made with respect to such Collateral Pool.

 

B.            As set forth below, the MortgagedProperties identified on Exhibit A to this Agreement as part of “CollateralPool 1” shall each secure one or more Loans made in respect of suchMortgaged Properties, and shall comprise Collateral Pool 1. The MortgagedProperties identified on Exhibit A to the Agreement as part of “CollateralPool 2” shall each secure one or more Loans made in respect of such MortgagedProperties, and shall comprise Collateral Pool 2. The Mortgaged Propertiesidentified on Exhibit A to the Agreement as part of “Collateral Pool 3”shall each secure one or more Loans made in respect of such MortgagedProperties, and shall comprise Collateral Pool 3. The Mortgaged Propertiesidentified on Exhibit A to the Agreement as part of “Collateral Pool 4”shall each secure one or more Loans made in respect of such MortgagedProperties, and shall comprise Collateral Pool 4. The Mortgaged Propertiesidentified on Exhibit A to the Agreement as part of “Collateral Pool 5”shall each secure one or more Loans made in respect of such MortgagedProperties, and shall comprise Collateral Pool 5. The Mortgaged Propertiesidentified on Exhibit A to the Agreement as part of “Collateral Pool 6”shall each secure one or more Loans made in respect of such MortgagedProperties, and shall comprise Collateral Pool 6. The Mortgaged Propertiesidentified on Exhibit A to the Agreement as part of “Collateral Pool 7”shall each secure one or more Loans made in respect of such MortgagedProperties, and shall comprise Collateral Pool 7. The Mortgaged Propertiesidentified on Exhibit A to the Agreement as part of “Collateral Pool 8”shall each secure one or more Loans made in respect of such MortgagedProperties, and shall comprise Collateral Pool 8. The Mortgaged Propertiesidentified on Exhibit A to the Agreement as part of “Collateral Pool 9”

 

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shall eachsecure one or more Loans made in respect of such Mortgaged Properties, andshall comprise Collateral Pool 9.

 

C.            Borrower has requested that Lendermake Loans to Borrower in the principal amounts set forth on Exhibit Aattached hereto, such Loans having an aggregate original principal amount of$7,069,325,900.

 

D.            To secure the obligations of eachCollateral Pool Borrower under this Agreement and the other Loan Documentsexecuted in connection with the Loan made to such Borrower, such CollateralPool Borrower or IDOT Guarantor shall pledge its respective Collateral toLender. Each Borrower’s or IDOT Guarantor’s Collateral shall be comprised of(i) Multifamily Residential Properties owned by Borrower or IDOT Guarantor orany Additional Borrower or Additional IDOT Guarantor and (ii) any othercollateral pledged to Lender from time to time by any Borrower, IDOT Guarantor,any Additional Borrower or Additional IDOT Guarantor pursuant to this Agreementor any other Loan Documents.

 

E.             The Multifamily ResidentialProperties comprising the Collateral shall be grouped into nine (9) CollateralPools, as set forth on Exhibit A. Each Collateral Pool Borrower shall bethe obligor on the Note or Notes secured by the Mortgaged Properties comprisingits related Collateral Pool and each such Loan shall be secured by a SecurityInstrument on the Mortgaged Property owned by such Collateral Pool Borrower orIDOT Guarantor.

 

F.             Each Loan, Note and SecurityDocument related to the Mortgaged Properties comprising each Collateral Poolshall be cross-defaulted (i.e., a default under any Loan, Note, SecurityDocument relating to each Mortgaged Property comprising Collateral Pool 1 (forexample) under this Agreement, shall constitute a default under each Loan, Noteand Security Document comprising Collateral Pool 1 (for example) and under thisAgreement related to the Mortgaged Properties in such Collateral Pool) andcross-collateralized (i.e., each Security Instrument related to theMortgaged Properties within Collateral Pool 1 (for example) shall secure all ofBorrower’s obligations under this Agreement and the other Loan Documentsrelated to the Loan secured by the Mortgaged Properties within Collateral Pool1 (for example)) to the other Notes and Security Documents related to theMortgaged Properties in such Collateral Pool and it is the intent of theparties to this Agreement that after an Event of Default, Lender may accelerateany Note related to such Collateral Pool without needing to accelerate anyother Note and that in the exercise of its rights and remedies under the LoanDocuments, Lender may, except as provided in this Agreement, exercise andperfect any and all of its rights in and under the Loan Documents with regardto any Mortgaged Property in such Collateral Pool without needing to exerciseand perfect its rights and remedies with respect to any other MortgagedProperty in such Collateral Pool and that any such exercise shall be withoutregard to the Allocable Loan Amount assigned to such Mortgaged Property andthat Lender may recover an amount equal to the full amount outstanding inrespect of any of the Notes related to the Mortgaged Properties within aCollateral Pool, in connection with such exercise and any such amount shall beapplied to the Obligations as determined by Lender in its sole and absolutediscretion.

 

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G.            No Loan, Note or Security Documentwithin one Collateral Pool shall be cross-collateralized or cross-defaultedwith any Loan, note or Security Document in any other Collateral Pool.

 

H.            Subject to the terms, conditions andlimitations of this Agreement, Lender has agreed to establish the CreditFacility and make the Loans to each Collateral Pool Borrower in the respectiveamounts described on Exhibit A.

 

NOW,THEREFORE, Borrower, IDOT Guarantor and Lender, in consideration of the mutualpromises and agreements contained in this Agreement, hereby agree as follows:

 

**ARTICLE 1**

**THE COMMITMENT TO MAKE LOANS**

 

**Section1.01.        The Commitment to MakeLoans.**

 

Subject to theterms, conditions and limitations of this Agreement:

 

(a)           Variable Loans. Lender agreesto make a Variable Loan to each applicable Collateral Pool Borrower in theoriginal principal amounts set forth in respect of such Collateral PoolBorrower on Exhibit A attached hereto. No Variable Loans shall be madeas a result of decrease in the Loan to Value Ratio or an increase in the DebtService Coverage Ratio of any Mortgaged Property.

 

(b)           Fixed Loans. Lender agrees tomake a Fixed Loan to each applicable Collateral Pool Borrower in the originalprincipal amounts in respect of such Collateral Pool Borrower set forth on ExhibitA attached hereto. Except as set forth in Section 2.05 of thisAgreement, no Fixed Loan or Additional Fixed Loan shall be made as a result ofa decrease in the Loan to Value Ratio or an increase in the Debt ServiceCoverage Ratio of any Mortgaged Property.

 

(c)           Maximum Loans. The maximumaggregate original principal amount of all Loans, including the Variable Loans,the Fixed Loans, and any Additional Fixed Loans, made pursuant to thisAgreement shall be $7,369,325,900. No Borrower may re-borrow any part of a Loanwhich it has previously borrowed and repaid. Each Loan is anticipated to bepurchased by Fannie Mae for cash.

 

(d)           Minimum Variable Loans Outstanding.During the Term of this Agreement, no Variable Loans secured by a CollateralPool shall be permitted to remain Outstanding unless the aggregate of VariableLoans Outstanding secured by such Collateral Pool is at least $25,000,000. Ifthe aggregate principal amount Outstanding of Variable Loans for a CollateralPool is more than $0 but less than $25,000,000, then the applicable CollateralPool Borrower shall, within ninety (90) days of the date on which the aggregateprincipal balance of Variable Loans Outstanding falls below $25,000,000, repayin full on the last day of the then current month all Variable LoansOutstanding under such Collateral Pool, together with any prepayment premiumsand other amounts due under such Loan Documents.

 

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**Section1.02.        Maturity Date of Loans;Amortization; Prepayment.**

 

(a)           Variable Loans

 

(i)            Maturity Date of Variable Loans.The maturity date of each Variable Loan shall be the first day of the monthfollowing the date two (2) years after the Initial Closing Date subject to theExtension pursuant to Section 1.05 of this Agreement.

 

(ii)           Amortization and Payment ofVariable Loans. Variable Loans shall be payable interest only.

 

(iii)          Prepayment of Variable Loans.Subject to the terms and conditions of the applicable Variable Loan Note and Section3.02(d) of this Agreement, Variable Loans are prepayable (in whole or inpart) at any time pursuant to the prepayment provisions of the applicableVariable Loan Note.

 

(b)           Fixed Loans.

 

(i)            Maturity Date of Fixed Loans.The maturity date of each Fixed Loan (other than an Additional Fixed Loan)shall be specified by the applicable Collateral Pool Borrower for such FixedLoan, provided that such maturity date shall be the first day of the monthfollowing the date five (5) seven (7) or ten (10) years after the InitialClosing Date as more specifically set forth in the applicable Fixed Loan Note.Subject to the terms of Section 2.05 of this Agreement, the maturitydate of any Additional Fixed Loan shall be the later of (A) the first day ofthe month following the date five (5) years from the Closing Date of suchAdditional Fixed Loan, and (B) the latest maturity date of the Initial LoanOutstanding under such Collateral Pool.

 

(ii)           Amortization and Payment of FixedLoans. Fixed Loans (other than Additional Fixed Loans) shall be payableinterest only. Additional Fixed Loans may require amortization and may requireprincipal and interest payments, as determined by Lender on or before theClosing Date of such Additional Fixed Loan.

 

(iii)          Prepayment of Fixed Loans.Fixed Loans (other than Additional Fixed Loans) are not prepayable withoutpremium during the period beginning on the Initial Closing Date of such FixedLoan and ending six (6) months prior to the maturity date of such Fixed Loan(as more specifically described in the applicable Fixed Loan Note); providedthat, notwithstanding the foregoing, Borrower may prepay all or any portion ofany Fixed Loan pursuant to the yield maintenance provisions of the applicableFixed Loan Note. The prepayment terms of any Additional Fixed Loan shall bedetermined by Borrower and Lender prior to the Closing Date of such AdditionalFixed Loan.

 

**Section1.03.        Interest on Loans.**

 

(a)           Variable Loans.

 

(i)            Interest on Variable Loans.Interest shall accrue on the unpaid principal balance of a Variable Loan fromthe date such Variable Loan is made at the Adjustable

 

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Rate based onOne Month LIBOR (or during an Extension, Three-Month LIBOR, as determined bythe applicable Collateral Pool Borrower) as more specifically set forth in theapplicable Variable Loan Note. Interest accrued through the end of each monthshall be payable two (2) Business Days before the first day of the followingmonth as more particularly set forth in the Variable Loan Note. The AdjustableRate shall change on each Rate Change Date until the Loan is repaid in full inaccordance with the Variable Loan Note. Interest payments for Variable Loansshall be calculated on an actual/360 basis.

 

(ii)           Variable Loan Fee. Theapplicable Collateral Pool Borrower shall pay monthly installments of theVariable Loan Fee to Lender for each Variable Loan Outstanding from the date ofany Variable Loan to its maturity date or until it is repaid in full. TheVariable Loan Fee shall be included in the Adjustable Rate and payable inaccordance with the terms of the related Variable Loan Note.

 

(b)           Fixed Loans. Each Fixed Loanmade on the Initial Closing Date shall bear interest at the rate set forth inthe related Fixed Loan Note. Each Additional Fixed Loan shall bear interest ata rate, per annum, equal to the sum of (A) the Cash Interest Rate for suchAdditional Fixed Loan and (B) the Fixed Loan Fee. Interest payments for FixedLoans made on the Initial Closing Date shall be calculated on an actual/360basis. Interest on Additional Fixed Loans shall be calculated on an actual/360basis or 30/360 basis as determined by Lender prior to the Closing Date of suchAdditional Fixed Loan.

 

**Section1.04.        Notes.**

 

(a)           Variable Loans. The obligationof the applicable Collateral Pool Borrower to repay the related Variable Loanshall be evidenced by one or more Variable Loan Notes executed by eachapplicable Collateral Pool Borrower. Each Variable Loan Note shall be payableto the order of Lender and shall be made in the original principal amount ofthe applicable Variable Loan.

 

(b)           Fixed Loans. The obligation ofthe applicable Collateral Pool Borrower to repay the related Fixed Loan shallbe evidenced by one or more Fixed Loan Notes executed by each applicableCollateral Pool Borrower. Each Fixed Loan Note shall be payable to the order ofLender and shall be made in the original principal amount of the applicableFixed Loan.

 

**Section1.05.        Extension of VariableLoans.**

 

The applicableCollateral Pool Borrower shall have the right to extend the maturity date ofthe related Variable Loan for three (3) periods of one (1)-year each (providedthe maturity date of any Variable Loan shall not exceed the first date of themonth following the date five (5) years after the Initial Closing Date) (the “**Extension**”) upon satisfaction of eachof the following conditions in connection with each Extension:

 

(a)           The applicable Collateral PoolBorrower delivers written notice requesting the Extension (“**Extension Notice**”) to Lender not lessthan forty-five (45) days prior to the then effective Variable Loan maturitydate.

 

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(b)           There has been no monetary ormaterial non-monetary Event of Default (as determined in Lender’s sole andabsolute discretion) under the Loan Documents relating to such Collateral Pool,and no Event of Default or Potential Event of Default relating to suchCollateral Pool exists on the date the Extension Notice is delivered and on thethen effective Variable Loan maturity date.

 

(c)           The Aggregate Debt Service Coverageof such Collateral Pool is equal to or greater than 0.95:1.0 (taking intoaccount any reduction in the principal amount of the relevant Variable Loanmade on or before the then effective Variable Loan maturity date) on the theneffective Variable Loan maturity date.

 

(d)           All of the representations andwarranties of the applicable Collateral Pool Borrower, IDOT Guarantor and theGuarantor contained in Exhibit L to this Agreement and the other LoanDocuments are true and correct in all material respects (i) on the date theExtension Notice is delivered and (ii) on the then effective Variable Loanmaturity date.

 

(e)           The applicable Collateral PoolBorrower or IDOT Guarantor is in compliance with all of the covenants containedin Article 6 and Article 7 (i) on the date the Extension Noticeis delivered and (ii) on the then effective Variable Loan maturity date.

 

(f)            The Collateral Pool Borrower pays toLender a Re-Underwriting Fee.

 

(g)           Borrower shall deliver to Lender atleast five (5) days prior to the then effective Variable Loan maturity date theconfirmation of an Interest Rate Hedge commitment, in accordance with the HedgeSecurity Agreement, effective as of the then effective Variable Loan maturitydate with a term of at least the Extension.

 

(h)           Borrower shall deliver to LenderInterest Rate Hedge Documents, in accordance with the Hedge Security Agreement,and an executed Hedge Security Agreement, each effective as of the theneffective Variable Loan maturity date with a term of at least the Extension.

 

(i)            Interest shall accrue on the unpaidprincipal balance of such Variable Loan from the then effective Variable Loanmaturity date to the end of the then effective Extension at the Adjustable Ratebased on One Month LIBOR or Three Month LIBOR as elected by Borrower prior to thethen effective Variable Loan maturity date (provided such One Month or ThreeMonth LIBOR election shall remain in place for the term of the Extension).

 

Upon receiptof the Extension Notice and upon compliance with conditions set forth above,the Variable Loan maturity date for the applicable Variable Loan Note shall beextended for one (1) period of one (1) year on the terms and conditionscontained in this Agreement (including the Variable Loan Fee) and the otherLoan Documents.

 

**Section1.06.        Interest Rate Hedge.**

 

To protectagainst fluctuations in interest rates during the term, pursuant to the termsof the Hedge Security Agreement, the applicable Collateral Pool Borrower shallmake arrangements for a LIBOR-based instrument (“**Interest Rate Hedge**”) to be in place and maintained at all

 

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times withrespect to any Variable Loan which has been funded and remains Outstanding. Asset forth in the Hedge Security Agreement, the applicable Collateral PoolBorrower agrees to pledge its right, title and interest in the Interest RateHedge to Lender as additional collateral for the Indebtedness.

 

**ARTICLE 2**

**THE LOANS**

 

**Section2.01.        Rate Setting for a Loan.**

 

Rates for eachLoan shall be set in accordance with the following procedures:

 

(a)           Initial Loans. The interestrate for the Initial Loans has been agreed upon by Borrower and Lender and isset forth in the Notes evidencing the Initial Loans.

 

(b)           Additional Fixed Loans. Thefollowing shall apply to the rate setting for Additional Fixed Loans:

 

(i)            Preliminary, Nonbinding Quote.At the applicable Collateral Pool Borrower’s request Lender shall quote anestimate of the Cash Interest Rate. Lender’s quote shall be based on (x) therate quoted by Fannie Mae, and (y) the proposed terms and amount of the Loanselected by such Collateral Pool Borrower. The quote shall not be binding uponLender.

 

(ii)           Rate Setting. If theapplicable Collateral Pool Borrower satisfies all of the conditions to Lender’sobligation to make the Loan, then such Collateral Pool Borrower may requestthat Lender submit to such Collateral Pool Borrower by facsimile transmission(or via electronic mail in PDF format) a completed draft Rate Form. The RateForm shall specify the Loan Amount, term, Fixed Loan Fee, any breakage feedeposit amount, Cash Interest Rate, and Closing Date for the Loan. If the draftRate Form is approved by the applicable Collateral Pool Borrower, such Borrowershall initial and return the approved Rate Form to Lender by facsimile transmission(or via electronic mail in PDF format) before 1:00 p.m. Eastern Standard Timeor Eastern Daylight Time, as applicable, on any Business Day (“**Rate Setting Date**”).

 

(iii)          Rate Confirmation. Within one(1) Business Day after receipt of the Rate Form, Lender shall obtain acommitment from Fannie Mae (“**Fannie MaeCommitment**”) for the purchase of the proposed Additional Loanhaving the terms described in the related Rate Form. Lender shall then completeand sign the Rate Form thereby confirming the amount, term, Cash Interest Rate,Fixed Loan Fee and Closing Date for the Additional Loan and shall immediatelydeliver by facsimile transmission (or via electronic mail in PDF format) theRate Form to the applicable Collateral Pool Borrower to be countersigned.

 

**Section2.02.        Breakage and Other Costs.**

 

If Lenderobtains, and then fails to fulfill, a Fannie Mae Commitment because the Loan isnot made (for a reason other than Lender’s default), the applicable CollateralPool Borrower shall pay all reasonable out-of-pocket costs (including attorneys’fees and costs), fees and damages incurred by Lender in connection with itsfailure to fulfill the Fannie Mae Commitment.

 

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Lenderreserves the right to require the applicable Collateral Pool Borrower to post adeposit at the time the Fannie Mae Commitment is obtained. Such deposit shallbe refunded to the applicable Collateral Pool Borrower upon the purchase of theNote by Fannie Mae.

 

**Section2.03.        Loans.**

 

A CollateralPool Borrower may deliver a Loan Request to Lender.

 

(a)           Initial Loan. If a CollateralPool Borrower delivers a Loan Request to obtain an Initial Loan and allconditions precedent contained in Section 4.02 and the GeneralConditions contained in Section 4.01 are satisfied on or before theInitial Closing Date, Lender shall make such Initial Loan on the InitialClosing Date or on such other date as such Collateral Pool Borrower and Lendermay agree.

 

(b)           Additional Fixed Loans. If theLoan Request is to obtain an Additional Fixed Loan pursuant to Section 2.05 ofthis Agreement, such Loan Request shall be in the minimum amount of $3,000,000.If all conditions precedent contained in Section 4.03 and the GeneralConditions contained in Section 4.01 are satisfied, Lender shall makethe requested Additional Fixed Loan, at a closing to be held at officesdesignated by Lender and reasonably acceptable to the applicable CollateralPool Borrower on a Closing Date proposed by such Borrower and approved byLender, which date shall be not more than three (3) Business Days after suchBorrower’s receipt from Lender of the confirmed Rate Form (or on such otherdate as Borrower and Lender may agree).

 

**Section2.04.        Determination of AllocableLoan Amount and Valuations.**

 

(a)           Initial Determinations. On theInitial Closing Date, Lender shall determine (i) the Allocable Loan Amount andValuation for each Initial Mortgaged Property, (ii) the Aggregate Debt ServiceCoverage Ratio and the Aggregate Loan to Value Ratio for each Collateral Pool,and (iii) the Loan Amount supported by such Collateral Pool. The determinationsmade in clause (i) as of the Initial Closing Date shall remain unchanged untila Collateral Event occurs under such Collateral Pool. Changes in Allocable LoanAmount, Valuations, the Aggregate Debt Service Coverage Ratio and the AggregateLoan to Value Ratio shall be made pursuant to Section 2.04(b).

 

(b)           Monitoring Determinations.Once each Calendar Quarter or, if a Collateral Pool consists only of FixedLoans that have an Aggregate Debt Service Coverage Ratio equal to or greaterthan 1.25:1.0, once each Calendar Year, within twenty (20) Business Days afterBorrower has delivered to Lender the reports required in Section 6.03,Lender shall determine the Aggregate Debt Service Coverage Ratio and theAggregate Loan to Value Ratio for such Collateral Pool, and whether Borrower isin compliance with the other covenants set forth in the Loan Documents. After aCollateral Event with respect to the relevant Collateral Pool, Lender shallredetermine Allocable Loan Amounts and Valuations for such Collateral Pool.Lender shall determine Cap Rates when determining Valuations in its sole andabsolute discretion on the basis of its internal survey and analysis of CapRates for comparable sales in the vicinity of the Mortgaged Property, with suchadjustments as Lender deems appropriate and shall not be obligated to use anyinformation provided by Borrower. Lender shall promptly

 

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disclose itsdeterminations to the applicable Collateral Pool Borrower. Until redetermined,the Allocable Loan Amounts and Valuations determined by Lender shall remain ineffect. In performing a Valuation of a Multifamily Residential Property to beadded to any Collateral Pool as part of a Substitution, Lender shall beentitled to obtain an Appraisal, and the Valuation will be based on suchAppraisal. Lender shall also have the right to obtain an Appraisal or a CapRate study conducted by an appraiser in connection with the redetermination ofa Valuation of a Mortgaged Property if Lender is unable to determine a Cap Ratefor such Mortgaged Property.

 

(c)           If a Collateral Pool Borrowerdisagrees with Lender’s Valuation of any Mortgaged Property that is part of suchCollateral Pool, such Borrower shall have the right to substitute for the CapRate determined by Lender or Appraisal obtained by Lender, as applicable, a newCap Rate based on a capitalization rate study conducted by an appraiser or anew Appraisal, as applicable, provided such Borrower gives notice to Lender ofits desire to substitute a new Cap Rate or a new Appraisal, as applicable, forLender’s Cap Rate or Appraisal, as applicable, within fifteen (15) BusinessDays after such Borrower receives Lender’s determinations.

 

(i)            In the event the applicableCollateral Pool Borrower has requested a new Cap Rate, the applicableCollateral Pool Borrower and Lender shall determine the Cap Rate in accordancewith the following procedure:

 

(A)          Lender shall give suchCollateral Pool Borrower a list of approved appraisers for the local market inwhich the Multifamily Residential Property is located within ten (10) BusinessDays after the date on which such Borrower gives Lender its notice;

 

(B)           The relevant CollateralPool Borrower shall select an appraiser within ten (10) Business Days after thedate on which Lender gives such Collateral Pool Borrower the list ofLender-approved appraisers;

 

(C)           Lender shall engagethe appraiser selected by Collateral Pool Borrower pursuant to clause (i)(B) toperform the Cap Rate study within ten (10) Business Days after the date onwhich such Borrower makes its selection; and

 

(D)          Such Collateral PoolBorrower shall pay all reasonable outof- pocket fees and expenses of obtainingthe Cap Rate study, whether incurred by such Collateral Pool Borrower orLender.

 

(ii)           In the event the applicableCollateral Pool Borrower has requested a new Appraisal, the applicableCollateral Pool Borrower and Lender shall obtain the new Appraisal in accordancewith the following procedure:

 

(A)          Lender shall givesuch Collateral Pool Borrower a list of approved appraisers for the localmarket in which the relevant Multifamily Residential Property is located withinten (10) Business Days after the date on which such Collateral Pool Borrowergives Lender its notice;

 

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(B)           The relevantCollateral Pool Borrower shall select an appraiser from the list of approvedAppraisers delivered by Lender to Borrower within ten (10) Business Days afterthe date on which Lender gives such Collateral Pool Borrower the list ofLender-approved appraisers;

 

(C)           Lender shall engagethe appraiser selected by Collateral Pool Borrower pursuant to clause (ii)(B)above to perform the Appraisal study within ten (10) Business Days after thedate on which such Collateral Pool Borrower makes its selection; and

 

(D)          Such Collateral PoolBorrower shall pay all reasonable out-of- pocket fees and expenses of obtainingthe Appraisal, whether incurred by such Collateral Pool Borrower or Lender.

 

If theapplicable Collateral Pool Borrower elects to substitute a new Cap Rate forLender’s Rate or a new Appraisal, the new Cap Rate or appraised value, asapplicable, shall be used to determine the Valuation for the Mortgaged Propertyand, until the earlier of (A) the thirtieth (30th) day after the date on which theappraiser is engaged by Lender or (B) the date on which the new Cap Rate isdetermined, the Valuation of the Mortgaged Property in effect immediately priorto Lender’s Valuation shall continue to be in effect. In the event the new CapRate or Appraisal is not determined or delivered on or before the thirtieth (30th) day after which the appraiser isengaged by Lender, then commencing on such thirtieth (30th) day and continuing until the new Cap Rate is determined orthe new Appraisal is delivered, the Valuation based on Lender’s determinationof the Cap Rate or Appraisal, as applicable, shall be in effect.

 

Notwithstandinganything in this Agreement to the contrary, no change in Allocable LoanAmounts, Valuations, the Aggregate Loan to Value Ratio or the Aggregate DebtService Coverage Ratio shall (E) result in a Potential Event of Default orEvent of Default under such Collateral Pool, (F) require the prepayment of anyLoans under such Collateral Pool, or (G) require the addition of Collateral tosuch Collateral Pool.

 

**Section 2.05.****                         AdditionalFixed Loans Made on Decreases in Loan to Value Ratio and Increases in DebtService Coverage Ratio.**

 

Notwithstandinganything to the contrary in this Agreement, not more than once per Loan Yearfor any Collateral Pool that secures a Fixed Loan, during the period beginningon the Initial Closing Date and ending on the date two (2) years prior to thematurity date of the Initial Loan, a Collateral Pool Borrower shall beentitled, upon request as set forth below, to Additional Fixed Loans based ondecreases in the Aggregate Loan to Value Ratio and increases in the AggregateDebt Service Coverage Ratio for such Collateral Pool as determined by Lender inaccordance with this Agreement, provided that (i) the resulting Aggregate DebtService Coverage Ratio for such Collateral Pool shall be equal to or greaterthan (A) prior to the date three (3) years after the Initial Closing Date,1.15:1.0, and (B) on and after the date three (3) years after the InitialClosing Date, 1.20:1.0, and (ii) the resulting Aggregate Loan to Value Ratioshall be equal to or less than the Aggregate Loan to Value Ratio for suchCollateral Pool. Notwithstanding the foregoing, such maximum aggregateamount of any Additional Fixed Loans shall be no greater than $300,000,000. Therelevant Collateral Pool Borrower shall request Additional Fixed Loans

 

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under this Section2.05 by giving Lender a Loan Request in accordance with Section 2.03(b).Each Additional Fixed Loan shall be executed by the applicable Collateral PoolBorrower and shall be secured by each Mortgaged Property in the applicableCollateral Pool. The applicable Collateral Pool Borrower shall pay all costsrelated to any Additional Fixed Loan requested under this Section 2.05(whether or not such Additional Fixed Loan is actually made), including but notlimited to, if required by Lender, Appraisal costs, physical needs assessmentcosts, Fannie Mae and Lender due diligence fees, the Origination Fee payablepursuant to Section 8.02, the Re-Underwriting Fee, all legalfees reasonably incurred by Lender and Fannie Mae in connection with suchproposed Additional Fixed Loan, and any other third-party costs reasonablyincurred in connection with the proposed Additional Fixed Loan. No AdditionalFixed Loans shall be permitted under any Collateral Pool secured by a VariableLoan. In the event that any “mezzanine debt” including, but not limited to, theLehman Mezzanine Debt is Outstanding as permitted by Section 7.03, theproceeds of any Additional Fixed Loans shall be used to pay down such mezzaninedebt.

 

**Section2.06.        Maximum Amount of AllLoans.**

 

The maximumaggregate original principal amount of all Loans under this Agreement is$7,369,325,900.

 

**ARTICLE 3**

**COLLATERAL CHANGES**

 

**Section3.01.        Right to Obtain Releasesof Collateral.**

 

Subject to theterms and conditions of this Article 3, Collateral Pool Borrower or IDOTGuarantor shall have the right from time to time to obtain a release ofCollateral (a “**Release**”)from the respective Collateral Pool.

 

**Section3.02.        Procedure for ObtainingReleases of Collateral.**

 

(a)         Request. Toobtain a release of Collateral from a Collateral Pool, the applicableCollateral Pool Borrower shall deliver a Release Request to Lender.

 

(b)        Closing. If allconditions precedent contained in Section 4.04 and all GeneralConditions contained in Section 4.01 are satisfied, Lender shall causethe Release Mortgaged Property to be released, at a closing to be held atoffices designated by Lender and reasonably acceptable to the applicableCollateral Pool Borrower or IDOT Guarantor on a Closing Date proposed by suchBorrower and approved by Lender, and occurring (i) in the case of a CollateralPool with ten (10) or less Mortgaged Properties, within thirty (30) days afterLender’s receipt of the Release Request and any other information required byLender (or on such other date as such Borrower and Lender may agree), and (ii)in the case of a Collateral Pool with more than ten (10) Mortgaged Properties,within sixty (60) days after Lender’s receipt of the Release Request and anyother information required by Lender (or on such other date as such Borrowerand Lender may agree), by executing and delivering, and causing all applicableparties to execute and deliver, all at the sole cost and expense of Borrower,the Release Documents. Unless otherwise instructed by Lender, the applicable CollateralPool Borrower, shall prepare the

 

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documentspertaining to the release of the Security Instrument and submit them to Lenderfor its review.

 

(c)           Release Price.

 

(i)            The “**Release Price**” for each Release Mortgaged Property means thegreater of (A) the Allocable Loan Amount for such Release Mortgaged Propertyand (B) one hundred percent (100%) of the amount, if any, of the LoansOutstanding that are required to be repaid by the applicable Collateral PoolBorrower to Lender in connection with the proposed release of the ReleaseMortgaged Property from such Collateral Pool so that, immediately after theRelease, the Coverage and LTV Tests for such Collateral Pool will be satisfied.In the event the proposed Release is of a Mortgaged Property that is in aCollateral Pool that secures a Fixed Loan and the Coverage and LTV Tests forthe applicable Collateral Pool are not satisfied after the Release of theRelease Mortgaged Property, but the Aggregate Debt Service Coverage Ratio ofsuch Collateral Pool is not less than the required Aggregate Debt ServiceCoverage Ratio set forth in clause (2)(a) of the definition of Coverage and LTVTests for such Collateral Pool in effect on the Closing Date of the proposedRelease minus 0.05 (for example, if the required Aggregate Debt ServiceCoverage set forth in clause (2)(a) of the definition of Coverage and LTV Testsfor the relevant Collateral Pool on the Closing Date of the proposed Release is1.1:1.0, the Aggregate Debt Service Coverage Ratio of such Collateral Pool onthe Closing Date of the proposed Release may not be less than 1.05:1.0), theapplicable Collateral Pool Borrower may deposit with Lender cash or a Letter ofCredit (in accordance with the terms of Section 4.08 of this Agreement)in an amount equal to the sum of the amount determined pursuant to clause **(B)** in this subsection above minusthe amount determined pursuant to clause (A) in this subsection abovesubject to the provisions of Section 3.02(c)(ii) below (the “**Shortfall Deposit**”). The precedingsentence shall not apply to Mortgaged Properties that are in a Collateral Poolthat secures a Variable Loan. In no event shall Borrower pay down less than theAllocable Loan Amount for such Release Mortgaged Property on the Closing Dateof such Release. In addition to the Release Price, the applicable CollateralPool Borrower shall pay to Lender all associated prepayment premiums, accruedinterest and other amounts due under the Notes evidencing the Loans beingrepaid.

 

(ii)           The Shortfall Deposit shall besubject to the following terms and conditions: 

 

(A)          Such Collateral PoolBorrower shall deposit either (i) cash and/or Permitted Investments or (ii) aLetter of Credit, not both.

 

(B)           In the event suchCollateral Pool Borrower deposits cash and/or Permitted Investments with Lenderas the Shortfall Deposit, the amount of the Shortfall Deposit shall not exceedfifteen percent (15%) of the principal balance of the Loans Outstanding undersuch Collateral Pool calculated after the release of the Release MortgagedProperty. Permitted Investments deposited to satisfy the Shortfall Depositrequirements shall, in the case of cash or other Permitted Investments in whichLender’s security interest is perfected by possession, be deposited by Lenderinto an account maintained by Lender in accordance with Fannie Mae requirementsfor similar accounts (the “**ShortfallDeposit Account**”) and, in the case of other PermittedInvestments,

 

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pledged toLender pursuant to a pledge agreement, in form and substance acceptable toLender. All interest and other earnings accruing on any cash or PermittedInvestments shall remain in the Release Deposit Account and shall be subject tothis Agreement, provided that all such interest and other earnings shall becredited to the applicable Collateral Pool Borrower. Cash shall be held in aninstitution (which may be the Lender, if the Lender is such an institution)whose deposits or accounts are insured or guaranteed by a federal agency. TheLender shall not be obligated to open additional accounts or deposit ImpositionDeposits in additional institutions when the amount of the Imposition Depositsexceeds the maximum amount of the federal deposit insurance or guaranty. Lendershall not guaranty the rate of return or rate of interest on any cash held aspart of the Shortfall Deposit.

 

(C)           In the event suchCollateral Pool Borrower posts a Letter of Credit pursuant to the terms of Section4.08 of this Agreement as the Shortfall Deposit, the value of the ShortfallDeposit shall not exceed ten percent (10%) of the principal balance of theLoans Outstanding under such Collateral Pool calculated after the release ofthe Release Mortgaged Property.

 

(D)          The Shortfall Deposit(including any interest and other earnings accruing on any PermittedInvestments in the Shortfall Deposit Account) shall be disbursed to theapplicable Collateral Pool Borrower upon the earliest of (x) payment of allObligations of such Collateral Pool Borrower under the Loan Documents, (y) thedate the applicable Collateral Pool satisfies the Coverage and LTV Tests forsuch Collateral Pool, and (z) upon compliance with the next sentence, the dateone hundred eighty (180) days after the Closing Date of the Release Request. Ifon the date one hundred eighty (180) days after the Closing Date of the ReleaseRequest the Coverage and LTV Tests for such Collateral Pool in effect as of theClosing Date of the Release Request are not satisfied, the applicableCollateral Pool Borrower shall pay down the Loans Outstanding under suchCollateral Pool such that the Coverage and LTV Tests are satisfied.

 

(iii)          Notwithstanding anything to thecontrary in this Section 3.02, the requirement that the Coverage and LTVTests be satisfied (or that the Aggregate Debt Service Coverage Ratio not bereduced by more than 0.05:1.0 from the required Aggregate Debt Service CoverageRatio as set forth in clause (2)(a) of the definition of Coverage and LTV Testsin effect on the Closing Date of the proposed release) after the release of aproposed Release Mortgaged Property may be waived temporarily by Lender in itssole discretion, if neither the Aggregate Debt Service Coverage Ratio will bereduced nor the Aggregate Loan to Value Ratio for such Collateral Pool will beincreased as a result of such proposed Release, with such waiver based onfactors that are not in conflict with Lender’s Underwriting Requirements,including but not limited to the then current Valuation of the MortgagedProperties in such Collateral Pool, the then current Aggregate Debt ServiceCoverage Ratio of such Collateral Pool, the then current Aggregate Loan toValue Ratio of such Collateral Pool, the strength of the Guarantor, the qualityof the market where the remaining Mortgaged Properties is located, and thegeographic distribution of the Mortgaged Properties in such Collateral Pool atthat time. In connection with a release pursuant to this Section3.02(c)(iii), the applicable Collateral Pool Borrower shall

 

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otherwisecomply with the terms of Section 3.02, including depositing anyShortfall Deposit required pursuant to Section 3.02(c)(i) and Section3.02(c)(ii).

 

(d)           Application of Release Price.

 

(i)            The Release Price for the ReleaseMortgaged Property shall be applied against the Outstanding Loans in theapplicable Collateral Pool Borrower’s discretion, provided that (A) anyOutstanding Loan which Borrower elects to prepay must be prepaid in full, or ifthe Release Price is not sufficient to do so, must be the only Loan partiallyprepaid; (B) any prepayment of Fixed Loans is permitted (for example, notsubject to a lock out period) under the applicable Fixed Loan Note, (C) anyprepayment premium due and owing is paid, and (D) interest must be paid throughthe end of the month.

 

(ii)           In the event no Loan may be prepaidunder the terms of the applicable Note, the remainder of the Release Price, ifany, shall be held by Lender (or its appointed collateral agent) in aninterest-bearing account designated by Lender for the benefit of the applicableCollateral Pool Borrower (provided that Lender shall not guaranty any rate ofinterest to such Borrower) as substitute Collateral (collectively, with anyinterest thereon, “**Substitute CashCollateral**”), in accordance with a security agreement (ifrequired by Lender) and other documents in form and substance acceptable toLender. Notwithstanding the foregoing, the release of the Release MortgagedProperty may not be approved unless the aggregate Valuation of all MortgagedProperties remaining in such Collateral Pool is greater than Outstanding Loansunder such Collateral Pool. Any Substitute Cash Collateral remaining will bereturned to the applicable Collateral Pool Borrower on the date all Loans madeto such Collateral Pool Borrower are repaid in full, or after an event thatbrings such Collateral Pool back into compliance with the Coverage and LTVTests for such Collateral Pool.

 

(e)        Partial Release ofKey West. The parties acknowledge that, pursuant to that certain leasedated on or about October, 1986 between Parkgate Associates, L.P. and WilliamF. Ryan Community Health Center, Inc. affecting the Mortgaged Property commonlyknown as Key West, having an address of 750 Columbus Avenue, New York, NewYork, the tenant under such lease has an option to purchase a portion of suchMortgaged Property. Lender agrees that upon exercise of such purchase option bythe tenant under such lease, Lender shall consider, but shall have noobligation to approve, a partial release of such Mortgaged Property tofacilitate the sale pursuant to such purchase option and may, notwithstandingthe provisions of Section 7.05 of this Agreement, permit a condominiumregime to be recorded with respect to such Mortgaged Property.

 

**Section3.03.        Substitutions.**

 

(a)        Right to SubstituteCollateral. Subject to the terms, conditions and limitations of Article3 and Article 4 from time to time prior to the date that is twelve(12) months prior to the Pool Termination Date, Borrower shall have the rightto obtain the release of one or more Release Mortgaged Properties from therelevant Collateral Pool by replacing such Release Mortgaged Property with oneor more Multifamily Residential Properties that meet the requirements of thisAgreement (the “**Substitute MortgagedProperty**”) thereby effecting a

 

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“**Substitution**” of Collateral. NoSubstitutions shall be permitted under a Collateral Pool that secures a VariableLoan.

 

(b)           Request. Borrower shalldeliver to Lender a completed and executed Substitution Request. EachSubstitution Request shall be accompanied by the following: (i) the informationrequired by the Underwriting Requirements with respect to the proposedSubstitute Mortgaged Property and any additional information Lender reasonablyrequests; and (ii) the payment of all Additional Due Diligence Fees.

 

(c)           Underwriting.

 

(i)            (A) A Collateral Pool Borrower mayrelease one or more Release Mortgaged Properties from a Collateral Pool andrequest the addition of one or more Substitute Mortgaged Properties to suchCollateral Pool provided that such Substitute Mortgaged Property is in acomparable market as and of equivalent quality to the Release Mortgaged Property,and provided further that (x) in connection with any Collateral Pool withmultiple Mortgaged Properties after such Substitution, the applicable Coverageand LTV Tests for such Collateral Pool are satisfied, or (y) in connection witha Collateral Pool which contains only one (1) Mortgaged Property, (1) the DebtService Coverage Ratio with respect to the Substitute Mortgaged Property equalsor exceeds the Debt Service Coverage Ratio of the Release Mortgaged Propertyimmediately prior to such proposed Substitution, and (2) the Loan to ValueRatio with respect to the Substitute Mortgaged Property is equal to or lessthan the Loan to Value Ratio of the Release Mortgaged Property immediatelyprior to such proposed Substitution; provided that in connection with aCollateral Pool which contains only one (1) Mortgaged Property, in the eventthat more than one (1) Substitute Mortgaged Property is added in replacement ofa single Mortgaged Property, each such Substitute Mortgaged Property shallsecure the Loan and shall be cross-collateralized and cross-defaulted.

 

(B)      In the event that theCoverage and LTV Tests for the applicable Collateral Pool are not satisfiedafter the Substitution, but the Aggregate Debt Service Coverage Ratio of suchCollateral Pool shall not less than the required Aggregate Debt ServiceCoverage Ratio as set forth in clause (2)(a) of the definition of Coverage andLTV Tests for such Collateral Pool in effect on the Closing Date of theproposed Substitution minus 0.05 (for example, if the required Aggregate DebtService Coverage as set forth in clause (2)(a) of the definition of Coverageand LTV Tests for the relevant Collateral Pool on the Closing Date of theproposed Substitution is 1.1:1.0, the Aggregate Debt Service Coverage Ratio of suchCollateral Pool on the Closing Date of the proposed Substitution may not beless than 1.05:1.0), the applicable Collateral Pool Borrower may deposit withLender a Shortfall Deposit pursuant to the terms of Section 3.02(c) ofthis Agreement in an amount equal to the Loans Outstanding that are required tobe repaid by the applicable Collateral Pool Borrower so that the Coverage andLTV Tests will be satisfied. All provisions in Section 3.02(c)(ii)pertaining to Shortfall Deposits shall apply.

 

(C)      Notwithstanding theforegoing, the requirement that the Coverage and LTV Tests be satisfied (orthat the Aggregate Debt Service Coverage Ratio not be reduced by more than0.05:1.0 from the required Aggregate Debt Service Coverage Ratio as set forthin clause (2)(a) of the definition of Coverage and LTV Tests in effect on theClosing Date

 

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of theproposed Substitution) after the addition of a proposed Substitute MortgagedProperty may be waived temporarily by Lender in its sole discretion, if neitherthe Aggregate Debt Service Coverage Ratio will be reduced nor the AggregateLoan to Value Ratio for such Collateral Pool will be increased as a result ofsuch proposed Substitution, based on factors that are not in conflict withLender’s Underwriting Requirements, including but not limited to the thencurrent Valuation of the Mortgaged Properties in such Collateral Pool, the thencurrent Aggregate Debt Service Coverage Ratio of such Collateral Pool, the thencurrent Aggregate Loan to Value Ratio or such Collateral Pool, the strength ofthe Guarantor, the quality of the market where the proposed SubstitutedMortgaged Property is located, the quality of any proposed AdditionalCollateral, and the geographic distribution of the Mortgaged Properties in suchCollateral Pool at that time. Borrower shall provide a Shortfall Deposit andotherwise comply with the provisions of Section 3.02(c)(ii).

 

(ii)           Lender shall evaluate the proposedSubstitute Mortgaged Property in accordance with the Underwriting Requirements,including an exit analysis performed by Lender and acceptable to Fannie Mae,and shall make underwriting determinations as to the Debt Service CoverageRatio and the Loan to Value Ratio of the proposed Substitute Mortgaged Propertyand the Aggregate Debt Service Coverage Ratio and the Aggregate Loan to ValueRatio for the applicable Collateral Pool on the basis of the lesser of (A) theacquisition price of the proposed Substitute Mortgaged Property if purchased byBorrower within twelve (12) months of the related Substitution Request, and (B)a Valuation made with respect to the proposed Substitute Mortgaged Property.Notwithstanding the provisions of Section 2.04 regarding therecalculation of Valuations and the calculation of Debt Service CoverageRatios, for purposes of reviewing proposed Substitute Mortgaged Properties, ifLender reasonably determines market conditions have changed in a manneradversely affecting any of the Mortgaged Properties since the determination ofthe then effective Aggregate Loan to Value Ratio for such Collateral Pool andAggregate Debt Service Coverage Ratio for such Collateral Pool, Lender may makenew determinations of Aggregate Debt Service Coverage Ratio and Aggregate Loanto Value Ratio for purposes of determining whether to permit the addition ofthe proposed Substitute Mortgaged Property to such Collateral Pool, whichdetermination shall not modify the Coverage and LTV Tests. Borrower shallpromptly provide any information reasonably required by Lender to make thedetermination permitted by the preceding sentence.

 

(iii)          Within (x) in the case of a CollateralPool with ten (10) or fewer Mortgaged Properties, thirty (30) days, or (y) inthe case of a Collateral Pool with more than ten (10) Mortgaged Properties,sixty (60) days after receipt of (A) the Substitution Request and (B) allreports, certificates and documents required by the Underwriting Requirements,Lender shall notify Borrower whether it has determined whether the proposed SubstituteMortgaged Property meets the conditions for addition set forth in thisAgreement. Within five (5) Business Days after receipt of Lender’s writtenconsent to the Substitution Request, Borrower shall notify Lender in writingwhether it elects to add the proposed Substitute Mortgaged Property to suchCollateral Pool. If Borrower fails to respond within the period of five (5)Business Days, it shall be conclusively deemed to have elected not to add theproposed Substitute Mortgaged Property to such Collateral Pool.

 

(d)           Closing. If, pursuant to this Section3.03, Lender determines that the conditions set forth herein for theSubstitution of the proposed Substitute Mortgaged Property

 

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into theapplicable Collateral Pool in replacement of the proposed Release MortgagedProperty, and the applicable Collateral Pool Borrower timely elects to causesuch Substitution to occur and all conditions contained in this Section 3.03and Section 4.01 and Section 4.04, to the extent Lenderdetermines such Sections are applicable, are satisfied, then the proposedSubstitute Mortgaged Property shall be substituted into such Collateral Pool inreplacement of the proposed Release Mortgaged Property, at a closing to be heldat offices designated by Lender and reasonably acceptable to the applicableCollateral Pool Borrower on a Closing Date proposed by such Borrower andapproved by Lender, and occurring —

 

(i) if theSubstitution of the proposed Substitute Mortgaged Property is to occursimultaneously with the release of the proposed Release Mortgaged Property,within thirty (30) days after Lender’s receipt of the applicable CollateralPool Borrower’s election (or on such other date to which the applicableCollateral Pool Borrower and Lender may agree); or

 

(ii) if theSubstitution of a proposed Substitute Mortgaged Property is to occur subsequentto the release of the Release Mortgaged Property, within ninety (90) days afterthe release of the Release Mortgaged Property (the “**Property Delivery Deadline**”), providedthat such Property Delivery Deadline may be extended by one (1) additionalninety (90) day period in the event the applicable Collateral Pool Borrowerprovides evidence to Lender’s satisfaction that it is diligently pursuing a1031 exchange with respect to the proposed Substitute Mortgaged Property inaccordance with the terms of this Section 3.03(d), provided that, on acase by case basis, Lender may consent in its sole discretion to extend theProperty Delivery Deadline by one (1) additional ninety (90) day period (for atotal of one hundred eighty (180) days if the applicable Collateral PoolBorrower is diligently pursuing the acquisition of a proposed SubstituteMortgaged Property that is not in connection with a 1031 exchange.

 

(e)           Substitution Deposit.

 

(i)            The Deposit. If the additionof a proposed Substitute Mortgaged Property is to occur subsequent to therelease of the Release Mortgaged Property pursuant to Section 3.03(d),at the Closing Date of the release of the Release Mortgaged Property, Borrower(or in the case of a Collateral Pool with only one (1) Mortgaged Property priorto the release, Guarantor) shall deposit with Lender the “**Substitution Deposit**” described in Section3.03(e)(ii) in the form of cash or, in lieu of (and/or in addition to)depositing cash for the Substitution Deposit, Borrower may post a Letter ofCredit in accordance with the terms of Section 4.08 of this Agreement,having a face amount equal to the Substitution Deposit (or such lesser amountthat has been deposited in cash). In the event the Release Mortgaged Propertyis intended to be sold as part of a like-kind exchange permitted under Section1031 of the Internal Revenue Code, such Substitution Deposit shall be held by aqualified intermediary, provided such qualified intermediary enters intodocuments reasonably required by Lender assigning such Substitution Deposit tothe Lender, and providing that such qualified intermediary shall distribute theSubstitution Deposit in accordance with this Agreement. In the case of aCollateral Pool with only one (1) Mortgaged Property prior to the release, ifthe relevant Borrower is not able to remain as the obligor on the Noteevidencing the related Loan, the relevant Borrower shall provide a replacementBorrower acceptable to Lender, which replacement Borrower shall join into theNote until the earlier of (A) such time that the Substitute Mortgaged Propertyis added to the Collateral Pool and the Additional Borrower owning suchSubstitute Mortgaged Property has

 

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joined intothe Note and other related Collateral Pool Loan Documents, and (B) the date theNote is paid in full together with all prepayment premiums due thereunder.

 

(ii)           Substitution Deposit Amount.The “**Substitution Deposit**”for each proposed Substitution shall be an amount equal to, for a Fixed Loan,the Release Price relating to such proposed Release Mortgaged Property;provided that in the event that the applicable Collateral Pool shall containonly one (1) Mortgaged Property after the completion of the Substitution, theSubstitution Deposit shall be the sum of (1) all Outstanding Loans for suchCollateral Pool, plus (2) any and all of the yield maintenance or prepaymentpremium for a Fixed Loan through the end of the month in which the PropertyDelivery Deadline occurs as if the Fixed Loan were to be prepaid in such month,plus (3) interest on the Fixed Loan through the end of the month in which theProperty Delivery Deadline occurs.

 

(iii)          Continued Payments on OutstandingNotes. Such Collateral Pool Borrower shall also be obligated to make anyregularly scheduled payments of principal and interest due under the applicableNote during any period between the closing of the Release Mortgaged Propertyand the earlier of the closing of the Substitute Mortgaged Property and thedate of prepayment of the Note.

 

(iv)          Failure to Close Substitution.If the addition of the proposed Substitute Mortgaged Property does not occur bythe Property Delivery Deadline in accordance with Section 3.03(d)(ii),then:

 

(A)          such Collateral PoolBorrower shall have irrevocably waived its right to substitute such ReleaseMortgaged Property with a proposed Substitute Mortgaged Property, and therelease of the Release Mortgaged Property shall be deemed to require aprepayment (or partial prepayment) of the portion of the Note equal to theRelease Price relating to the Release Mortgaged Property, together with allyield maintenance, fee maintenance or prepayment premium then due in connectionwith such payment; and

 

(B)           the applicableCollateral Pool Borrower shall comply with the requirements set forth in Section3.02(d) not previously satisfied with respect to the Release MortgagedProperty, including payment of the Release Price. Such Release Price, or theapplicable portion thereof, shall be applied in the manner set forth in Section3.02(d) and the Letter of Credit, if applicable, delivered by such Borrowerpursuant to Section 3.03(e) and Section 4.08 of this Agreementshall be returned to Borrower. However, if such Borrower fails to timely paythe Release Price, Lender may draw upon the Substitution Deposit insatisfaction of such obligation.

 

(v)           Substitution Deposit Disbursement.At closing of the Substitution, Lender shall disburse the Substitution Deposit(including any interest accrued on such Substitution Deposit) directly to theapplicable Collateral Pool Borrower at such time as the conditions precedentfor the Substitution have been satisfied, which must occur no later than theProperty Delivery Deadline. Notwithstanding the foregoing, in the event thatthe applicable Collateral Pool Borrower adds a Substitute Mortgaged Property tosuch Collateral Pool prior to the Property Delivery Deadline but the additionof such Substitute Mortgaged Property has not in

 

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and of itselfsatisfied the requirements to close the Substitution, the Substitution Depositshall be reduced by the Allocable Loan Amount of such Substitute MortgagedProperty as determined by Lender, and such reduction in the SubstitutionDeposit shall be returned to the applicable Collateral Pool Borrower, or in thecase of a Letter of Credit, such Letter of Credit shall be reduced by suchreduction in the Substitution Deposit.

 

(f)            Conditions Precedent toSubstitutions. The obligation of Lender to make a requested Substitution issubject to Lender’s determination that each of the conditions precedent setforth in Section 4.01 and Section 4.04 of this Agreement havebeen satisfied.

 

(g)           Restriction on Borrowings. Ifthe addition of the Substitute Mortgaged Property to such Collateral Pool andthe release of the Release Mortgaged Property from such Collateral Pool doesnot occur simultaneously then, until the addition of the Substitute MortgagedProperty to such Collateral Pool, the aggregate principal balance of LoansOutstanding with respect to such Collateral Pool shall not exceed the amount ofthe (i) Loans Outstanding immediately prior to the release of such ReleaseMortgaged Property minus (ii) the Allocable Loan Amount of the ReleaseMortgaged Property, unless the applicable Collateral Pool Borrower hasdelivered additional Collateral reasonably acceptable to Lender (includingcash, letters of credit, and/or Cash Equivalents) in an amount at least equalto such Allocable Loan Amount. If the aggregate unpaid principal balance ofLoans Outstanding exceeds the amount resulting from subtracting (i) minus (ii)in the preceding sentence (and additional Collateral reasonably acceptable toLender (including cash, letters of credit, and/or Cash Equivalents) has notbeen delivered by the applicable Collateral Pool Borrower to Lender), suchCollateral Pool Borrower shall repay the necessary amount as a condition precedentto the addition of a Substitute Mortgaged Property. Any payment received byLender under this Section 3.03 shall be applied against LoansOutstanding in the manner prescribed for Release Prices pursuant to Section3.02(d). The additional Collateral shall be released to the applicableCollateral Pool Borrower upon the addition of the applicable SubstituteMortgaged Property to such Collateral Pool.

 

**ARTICLE 4**

**CONDITIONS PRECEDENT TO ALL REQUESTS**

 

**Section4.01.        Conditions Applicable toAll Requests.**

 

The obligationof Lender to close the transaction requested in a Request by a Collateral PoolBorrower shall be subject to Lender’s determination that all of the followinggeneral conditions precedent (“**GeneralConditions**”) have been satisfied, in addition to any otherconditions precedent contained in this Agreement:

 

(a)           Payment of Expenses. Thepayment by the applicable Collateral Pool Borrower of Lender’s and Fannie Mae’sreasonable third-party out-of-pocket fees and expenses payable (withoutduplication) in accordance with this Agreement, including, but not limited to,the legal fees and expenses described in Section 8.04.

 

(b)           No Material Adverse Effect.There has been no Material Adverse Effect on the financial condition, businessor prospects of the applicable Collateral Pool Borrower,

 

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IDOT Guarantoror Guarantor or in the physical condition, operating performance or value ofany of the Mortgaged Properties in such Collateral Pool since the date of themost recent Compliance Certificate (or, with respect to the Initial Loan, fromthe condition, business or prospects reflected in the financial statements,reports and other information obtained by Lender during its review of suchBorrower, IDOT Guarantor and Guarantor and the Initial Mortgaged Properties insuch Collateral Pool).

 

(c)           No Default. There shall havebeen no monetary or material non-monetary Event of Default (as determined inLender’s sole and absolute discretion) under such Collateral Pool and thereshall exist no Event of Default or Potential Event of Default with respect tosuch Collateral Pool on or before the Closing Date for the Request and, aftergiving effect to the transaction requested in the Request, no Event of Defaultor Potential Event of Default with respect to such Collateral Pool shall haveoccurred.

 

(d)           No Insolvency. Receipt byLender on the Closing Date for the Request of evidence satisfactory to Lenderthat none of the applicable Collateral Pool Borrower, IDOT Guarantor norGuarantor is insolvent (within the meaning of any applicable federal or statelaws relating to bankruptcy or fraudulent transfers) or will be renderedinsolvent by the transactions contemplated by the Loan Documents, including themaking of an Additional Fixed Loan, or, after giving effect to suchtransactions, will be left with an unreasonably small amount of capital withwhich to engage in its business or undertakings, or will have intended toincur, or believe that it has incurred, debts beyond its ability to pay suchdebts as they mature or will have intended to hinder, delay or defraud anyexisting or future creditor.

 

(e)           Accuracy of Information. Noinformation, statement or report furnished in writing to Lender by theapplicable Collateral Pool Borrower or IDOT Guarantor in connection with thisAgreement or any other Loan Document with respect to such Collateral Pool or inconnection with the consummation of the transactions contemplated herebycontains any statement which is incorrect in any material respect.

 

(f)            Representations and Warranties.All representations and warranties made by the applicable Collateral PoolBorrower, IDOT Guarantor and Guarantor in the Loan Documents shall be true andcorrect in all material respects on the Closing Date for the Request with thesame force and effect as if such representations and warranties had been madeon and as of the Closing Date for the Request; provided, however,that in the case of any Request occurring after the Initial Closing Date, thedate-down of such representations and warranties shall exclude Section 9(financing information) in the Certificate of Borrower related to suchCollateral Pool and any representation or warranty contained in any of theother Loan Documents that is solely related to an earlier date. On the ClosingDate of any Request, the applicable representations and warranties as referredto in this Section 4.01(f) shall be deemed remade by the applicableCollateral Pool Borrower or IDOT Guarantor.

 

(g)           No Condemnation or Casualty.There shall not be pending or threatened any condemnation or other taking,whether direct or indirect, against any Mortgaged Property (other than aRelease Mortgaged Property) in the applicable Collateral Pool and there shallnot have occurred any casualty to any improvements located on the MortgagedProperty (other than a Release Mortgaged Property) in the applicable CollateralPool, which condemnation or

 

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casualty wouldhave, or reasonably may be expected to have, a Material Adverse Effect on theMortgaged Properties (other than the Release Mortgaged Property) in theapplicable Collateral Pool taken as a whole.

 

(h)           Delivery of Closing Documents.The receipt by Lender of the following, each dated as of the Closing Date forthe Request, in form and substance satisfactory to Lender in all respects:

 

(i)            Fully executed original copies ofeach Loan Document for such Collateral Pool required to be executed inconnection with the Request, duly executed and delivered by the parties thereto(other than Lender), each of which shall be in full force and effect;

 

(ii)           Other than in connection with aRelease Request, a Certificate of Borrower or Certificate of IDOT Guarantor, asapplicable;

 

(iii)          A Compliance Certificate;

 

(iv)          An Organizational Certificate;

 

(v)           Such other documents, instruments,approvals (and, if requested by Lender, certified duplicates of executed copiesthereof) and opinions as Lender may reasonably request; and

 

(vi)          Other than in connection with aRelease Request, a Confirmation of Guaranty.

 

(i)            Covenants. The applicableCollateral Pool Borrower or IDOT Guarantor is in full compliance with each ofthe covenants contained in Article 6 and Article 7 of thisAgreement, without giving effect to any notice and cure rights of Borrower.

 

(j)            Lehman Mezzanine Debt and BankDebt Lender Approval. The approval, to the extent required under the loandocuments evidencing the Lehman Mezzanine Debt and Bank Debt, has beenobtained.

 

**Section 4.02.           ConditionsPrecedent to Initial Loan.**

 

The obligationof Lender to make an Initial Loan to a Collateral Pool Borrower is subject toLender’s determination that each of the following conditions precedent has beensatisfied:

 

(a)           Receipt by Lender of a fully executedLoan Request by such Collateral Pool Borrower;

 

(b)           The Coverage and LTV Tests for suchCollateral Pool are satisfied;

 

(c)           If the Initial Loan is a VariableLoan to such Collateral Pool Borrower, receipt by Lender at least three (3)days prior to the Initial Closing Date, of the confirmation of an Interest RateHedge commitment, in accordance with the Hedge Security Agreement,

 

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effective asof the Initial Closing Date with a term ending no earlier than the VariableLoan maturity date;

 

(d)           If the Initial Loan to suchCollateral Pool Borrower is a Variable Loan, receipt by Lender of Interest RateHedge Documents and an executed Hedge Security Agreement, each effective as ofthe Initial Closing Date with a term ending no earlier than the Variable Loanmaturity date;

 

(e)           Delivery to the Title Company, forfiling and/or recording in all applicable jurisdictions, of all applicable LoanDocuments required by Lender, including duly executed and delivered originalcopies of the Variable Loan Note (if applicable for such Collateral Pool),and/or a Fixed Loan Note (if applicable for such Collateral Pool), a Guaranty,the Initial Security Instruments covering the Initial Mortgaged Properties insuch Collateral Pool and UCC-1 Financing Statements covering the portion of theCollateral in such Collateral Pool comprised of personal property, and otherappropriate instruments, in form and substance reasonably satisfactory toLender and in form proper for recordation, as may be necessary in thereasonable opinion of Lender to perfect the Liens created by the applicableSecurity Instruments and any other Loan Documents for such Collateral Poolcreating a Lien in favor of Lender, and the payment of all taxes, fees andother charges payable in connection with such execution, delivery, recordingand filing;

 

(f)            Intentionally Omitted

 

(g)           Receipt by Lender of all reasonablelegal fees and expenses payable by the applicable Collateral Pool Borrower inconnection with the Initial Loan;

 

(h)           Receipt by Lender of evidence thatthe Bank Debt and Lehman Mezzanine Debt or an equivalent amount of equity is inplace and has been advanced to the extent necessary to effect the transactionscontemplated hereby and under the documents evidencing the Bank Debt and theLehman Mezzanine Debt;

 

(i)            Receipt by Lender of an acceptableIntercreditor Agreement on a Fannie Mae approved form with respect to theLehman Mezzanine Debt and the Bank Debt;

 

(j)            If required by Lender, receipt byLender of an acceptable cash management agreement on a Fannie Mae approvedform.

 

**Section 4.03.           ConditionsPrecedent to Additional Fixed Loans.**

 

The obligationof Lender to make a requested Additional Fixed Loan to a Collateral PoolBorrower is subject to each of the following conditions precedent:

 

(a)           Such request shall not be applicableto any Collateral Pool that secures a Variable Loan;

 

(b)           Receipt by Lender of the fullyexecuted Loan Request;

 

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(c)           Delivery by Lender tothe applicable Collateral Pool Borrower of the Rate Form for the AdditionalFixed Loan;

 

(d)           After giving effect tothe requested Additional Fixed Loan, the Aggregate Debt Service Coverage Ratioand Aggregate Loan to Value Ratio tests set forth in Section 2.05 shallbe satisfied;

 

(e)           Delivery of a FixedLoan Note, duly executed by Collateral Pool Borrower, in the amount andreflecting all of the terms of the Additional Fixed Loan;

 

(f)            Receipt by Lender ofthe Re-Underwriting Fee;

 

(g)           Receipt by Lender ofthe Origination Fee;

 

(h)           Receipt by Lender ofall reasonable legal fees and expenses payable by the applicable CollateralPool Borrower in connection with the Loan Request;

 

(i)            No GovernmentalApproval not already obtained or made is required for the execution anddelivery of the documents to be delivered in connection with the Additional FixedLoan;

 

(j)            The applicableCollateral Pool Borrower, IDOT Guarantor or Guarantor is not under any cease ordesist order or other orders of a similar nature, temporary or permanent of anyGovernmental Authority which would have the effect of preventing or hindering performanceof the terms and provisions of the Agreement or any other Loan Documents for suchCollateral Pool, nor are there any proceedings presently in progress or, to itsknowledge, contemplated which, if successful, would lead to the issuance of anysuch order;

 

(k)           Receipt by Lender of aConfirmation of Guaranty; and

 

(l)            Receipt by Lender ofan endorsement to each Title Insurance Policy, amending the effective date ofthe Title Insurance Policy to the Closing Date, increasing the limits ofliability to the total aggregate Loans Outstanding secured by such CollateralPool (or such other amount agreed by Lender) showing no additional exceptionsto coverage other than the exceptions shown on the Initial Closing Date (or, ifapplicable, the last Closing Date with respect to which the Title InsurancePolicy was endorsed) and other than Permitted Liens and other exceptionsapproved by Lender, together with any reinsurance agreements required by Lender.

 

**Section 4.04.****            ConditionsPrecedent to Release of Property from the Collateral Pool.**

** **

The obligationof Lender to release a Mortgaged Property from a Collateral Pool by executingand delivering the Release Documents on the Closing Date is subject to Lender’sdetermination that each of the following conditions precedent has beensatisfied:

 

(a)           The requirements of Section3.03(c), as applicable, will be satisfied;

 

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(b)           Receipt by Lender ofthe Re-Underwriting Fee;

 

(c)           Receipt by Lender ofthe Release Price;

 

(d)           Receipt by Lender ofthe Release Fee;

 

(e)           Receipt by Lender onthe Closing Date of one (1) or more counterparts of each Release Document,dated as of the Closing Date, signed by each of the parties (other than Lender)who is a party to such Release Document;

 

(f)            If required by Lender,amendments to the Notes and the Security Instruments, reflecting the release ofthe Release Mortgaged Property from the applicable Collateral Pool and, as toany Security Instrument so amended, the receipt by Lender of an endorsement tothe Title Insurance Policy insuring the Security Instrument, amending the effectivedate of the Title Insurance Policy to the Closing Date and showing noadditional exceptions to coverage other than Permitted Liens;

 

(g)           If Lender determinesthe Release Mortgaged Property to be one (1) phase of a project, and one (1) ormore other phases of the project are Mortgaged Properties which will remain insuch Collateral Pool (“**Remaining MortgagedProperties**”), Lender must determine that the Remaining MortgagedProperties can be operated separately from the Release Mortgaged Property andany other phases of the project which are not Mortgaged Properties in suchCollateral Pool and whether any cross use agreements or easements arenecessary. In making this determination, Lender shall evaluate access,utilities, marketability, community services, ownership and operation of theRelease Mortgaged Properties and any other issues identified by Lender inconnection with similar loans anticipated to be sold to Fannie Mae;

 

(h)           Receipt by Lender ofendorsements to the tie-in endorsements of the Title Insurance Policies, ifdeemed necessary by Lender, to reflect the release. Notwithstanding anything tothe contrary herein, no release of any Mortgaged Property in a Collateral Poolshall be made unless the applicable Collateral Pool Borrower has provided titleinsurance to Lender in respect of each of the Remaining Mortgaged Properties insuch Collateral Pool in an amount equal to (i) one hundred ten percent (110%)of the Initial Valuation of such Mortgaged Properties (taking into account thetitle insurance coverage provided by “tie-in” endorsements, if available) and,(ii) in the case of the Mortgaged Properties located in states where tie-in endorsementsare not available, one hundred ten (110%) of the Valuation of such Mortgaged Properties;

 

(i)            Receipt by Lender onthe Closing Date of a Confirmation of Obligations, dated as of the ClosingDate, signed by the applicable Collateral Pool Borrower, IDOT Guarantor andGuarantor, pursuant to which such Borrower, IDOT Guarantor and Guarantor confirmtheir obligations under the Loan Documents to which they are a party; and

 

(j)            Receipt by Lender ofall reasonable legal fees and expenses payable by the applicable CollateralPool Borrower in connection with the Release Request.

 

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**Section 4.05.****             ConditionsPrecedent to Substitution of a Substitute Mortgaged Property to the CollateralPool.**

** **

EachSubstitution is subject to Lender’s determination that each of the following conditionsprecedent has been satisfied:

 

(a)           The UnderwritingRequirements will be satisfied with respect to the Substitute MortgagedProperty;

 

(b)           The requirements of Section3.03(c), as applicable, will be satisfied;

 

(c)           Receipt by Lender ofthe Substitution Fee;

 

(d)           Receipt by Lender ofall reasonable legal fees and expenses payable by the applicable CollateralPool Borrower in connection with the Substitution Request;

 

(e)           Receipt by Lender ofthe Re-Underwriting Fee;

 

(f)            Delivery to the TitleCompany, with fully executed instructions directing the Title Company to fileand/or record in all applicable jurisdictions, all applicable Substitution LoanDocuments for such Collateral Pool required by Lender, including duly executedand delivered original copies of any Security Instruments and UCC-1 FinancingStatements covering the portion of the Substitute Mortgaged Property comprisedof personal property, and other appropriate documents, in form and substancereasonably satisfactory to Lender and in form proper for recordation, as may benecessary in the reasonable opinion of Lender to perfect the Lien created bythe applicable additional Security Instrument, and any other Substitute Loan Documentfor such Collateral Pool creating a Lien in favor of Lender, and the payment ofall taxes, fees and other charges payable in connection with such execution,delivery, recording and filing;

 

(g)           If required by Lender,amendments to the Notes and the Security Instruments, reflecting the additionof any Additional Borrower, Additional IDOT Guarantor and/or the SubstituteMortgaged Property to such Collateral Pool and, as to any Security Instrumentso amended, the receipt by Lender of an endorsement to the Title InsurancePolicy insuring the Security Instrument, amending the effective date of theTitle Insurance Policy to the Closing Date and showing no additional exceptionsto coverage other than Permitted Liens; and

 

(h)           If the Title InsurancePolicy for the Substitute Mortgaged Property contains a tie-in endorsement, anendorsement to each other Title Insurance Policy for the Mortgaged Propertiesin the same Collateral Pool containing a tie-in endorsement, adding a referenceto the Substitute Mortgaged Property.

 

**Section 4.06.****           Delivery of OpinionRelating to Loan Request or Substitution Request.**

** **

With respectto the closing of a Loan Request or a Substitution Request, it shall be a conditionprecedent that Lender receives each of the following, each dated as of theClosing Date for the Request, in form and substance satisfactory to Lender inall respects, opinions of counsel

 

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(includinglocal counsel, as applicable) to the applicable Collateral Pool Borrower, IDOT Guarantorand Guarantor, as to the due organization and qualification of the applicableCollateral Pool Borrower, IDOT Guarantor and Guarantor, the due authorization,execution, delivery and enforceability of each Loan Document for suchCollateral Pool executed in connection with the Request and such other mattersas Lender may reasonably require, each dated as of the Closing Date for theRequest, in form and substance satisfactory to Lender in all respects.

 

**Section 4.07.****            Delivery ofProperty-Related Documents.**

** **

With respectto each of the Initial Mortgaged Properties or a Substitute Mortgaged Property,it shall be a condition precedent that Lender receive from the applicableCollateral Pool Borrower or IDOT Guarantor each of the documents and reportsrequired by Lender pursuant to the Underwriting Requirements in connection withthe pledge of such Mortgaged Property and, each of the following, each dated(where possible) as of the Closing Date for the Initial Mortgaged Property or aSubstitute Mortgaged Property, as the case may be, in form and substancesatisfactory to Lender in all respects:

 

(a)           A commitment for theTitle Insurance Policy applicable to the Mortgaged Property and a pro formaTitle Insurance Policy based on such commitment.

 

(b)           The Insurance Policy(or a certified copy of the Insurance Policy) applicable to the MortgagedProperty.

 

(c)           The Survey applicableto the Mortgaged Property (which shall be last revised no less than ninety (90)days prior to the Closing Date).

 

(d)           Evidence reasonablysatisfactory to Lender of compliance of the Mortgaged Property with PropertyLaws.

 

(e)           An Appraisal of theMortgaged Property.

 

(f)            A Replacement ReserveAgreement, providing for the establishment of a replacement reserve account, tobe pledged to Lender, in which the owner shall (unless waived by Lender)periodically deposit amounts for replacements for improvements at the MortgagedProperty and as additional security for the applicable Collateral Pool Borrower’sor IDOT Guarantor’s, if applicable, obligations under the Loan Documents.

 

(g)           A Completion/Repair andSecurity Agreement, if required by Lender, together with required escrows, onthe standard form required by Lender.

 

(h)           An Assignment ofManagement Agreement, on the standard form required by Lender.

 

(i)            An Assignment ofLeases and Rents, if Lender determines one to be necessary or desirable,provided that the provisions of any such assignment shall be substantively identicalto those in the Security Instrument covering the Collateral, with suchmodifications as may be necessitated by applicable state or local law.

 

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(j)            A Certificate ofBorrower.

 

(k)           If applicable, a fullyexecuted Master Lease and an estoppel certificate and subordination agreementwith respect to each Master Lease, each in substantially the form attached tothis Agreement as EXHIBIT Q.

 

(l)            If applicable, a fullyexecuted ground lease and an estoppel certificate with respect to each groundlease, each in form and substance acceptable to Lender.

 

(m)          Copies of eachcommercial lease affecting a Mortgaged Property and, if required by Lender, atenant estoppel certificate and subordination, non-disturbance and attornmentagreement, each in form and substance satisfactory to Lender.

 

(n)           Copies of homeownersassociations, easement, declarations and similar agreements affecting anyMortgaged Property and, if required by Lender, an estoppel certificate withrespect to such agreements in form and substance satisfactory to Lender.

 

**Section4.08.****        ConditionsPrecedent to Letters of Credit.**

** **

The right orrequirement of a Collateral Pool Borrower to provide a Letter of Credit in connectionwith this Agreement is subject to Lender’s determination that each of thefollowing conditions precedent has been satisfied:

 

(a)           Letter of CreditRequirements. If such Collateral Pool Borrower provides Lender with aLetter of Credit pursuant to this Agreement, the Letter of Credit shall be inform and substance satisfactory to Lender and Lender shall be entitled to drawunder such Letter of Credit solely upon presentation of a sight draft to theLOC Bank. Any Letter of Credit shall be for a term of at least three hundredsixty-four (364) days (provided that in connection with a Substitution, theterm of any Letter of Credit shall be at least until the Property Delivery Deadline).Any Letter of Credit shall be issued by a financial institution satisfactory toLender and shall have its long-term debt obligations rated at least “A” or anequivalent rating by S&P and Moody’s and its short-term debt obligationsrated “A-1” / “P-1” or an equivalent rating by S&P and by Moody’s (the “**Issuer**”).

 

(b)           Draws Under Letterof Credit. Lender shall have the right in its sole discretion to drawmonies under the Letter of Credit:

 

(i)            upon the occurrence ofan Event of Default under such Collateral Pool;

 

(ii)           if thirty (30) daysprior to the expiration of the Letter of Credit, either the Letter of Credithas not been extended for a term of at least three hundred sixty-four (364)days (provided that in connection with a Substitution, the term of any Letterof Credit shall be at least until the Property Delivery Deadline) or suchCollateral Pool Borrower has not replaced the Letter of Credit with substitutecash collateral in the amount required by Lender; or

 

(iii)          upon the downgrading ofthe long-term obligations of the LOC Bank below “A” or an equivalent rating byeither Rating Agency or short-term debt below “A-

 

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1”/”P-1” or anequivalent rating by either Rating Agency; provided that Borrower shall haveten (10) Business Days after notice of such downgrading to deliver to Lendereither (A) an acceptable replacement Letter of Credit or (B) substitute cashcollateral in the amount required by Lender.

 

(c)           Deposit to CashCollateral Agreement. If Lender draws under the Letter of Credit pursuantto Section 4.08(b)(ii) or (iii) above, Lender shall depositsuch draw monies into the Cash Collateral Account provided any interest thereonshall inure to the benefit of Borrower.

 

(d)           Default Draws.If Lender draws under the Letter of Credit pursuant to Section 4.08(b)(i)above, Lender may in its sole discretion use monies drawn under the Letter of Creditfor any of the following purposes:

 

(i)            to pay any amountsrequired to be paid by the applicable Collateral Pool Borrower under the LoanDocuments (including, without limitation, any amounts required to be paid toLender under this Agreement);

 

(ii)           to (on such CollateralPool Borrower’s behalf, or on its own behalf if Lender becomes the owner of theMortgaged Property) pre-pay any Note;

 

(iii)          to make repairs requiredto address emergency or life and safety conditions to any Mortgaged Property insuch Collateral Pool; or

 

(iv)          deposit monies into theCash Collateral Account.

 

(e)           Legal Opinion.Prior to or simultaneous with the delivery of any new Letter of Credit (but notthe extension of any existing Letter of Credit), such Collateral Pool Borrowershall cause the LOC Bank’s counsel to deliver a legal opinion in a customaryform satisfactory to Lender.

 

**ARTICLE 5**

**REPRESENTATIONS AND WARRANTIES**

** **

**Section5.01.****        Representationsand Warranties of Borrower.**

** **

Therepresentations and warranties of each Borrower, IDOT Guarantor and Guarantorare contained in various Certificates of Borrower, the form of which isattached to this Agreement as Exhibit L and Guaranty.

 

**Section5.02.****        Representationsand Warranties of Lender.**

** **

Lender herebyrepresents and warrants to each Borrower as follows:

 

(a)           Due Organization.Lender is a corporation duly organized, validly existing and in good standingunder the laws of Delaware.

 

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(b)           Power and Authority.Lender has the requisite power and authority to execute and deliver thisAgreement and to perform its obligations under this Agreement.

 

(c)           Due Authorization.The execution and delivery by Lender of this Agreement, and the consummation byit of the transactions contemplated thereby, and the performance by it of itsobligations thereunder, have been duly and validly authorized by all necessaryaction and proceedings by it or on its behalf.

 

**ARTICLE 6**

**AFFIRMATIVE COVENANTS OF BORROWER**

** **

Each Borroweragrees and covenants with Lender that, at all times during the Term of thisAgreement:

 

**Section6.01.****        Compliancewith Agreements.**

** **

Each Borrower,IDOT Guarantor and Guarantor shall comply with all the terms and conditions ofeach Loan Document to which it is a party or by which it is bound; provided, however,that Borrower’s, IDOT Guarantor’s or Guarantor’s failure to comply with suchterms and conditions shall not be an Event of Default until the expiration ofthe applicable notice and cure periods, if any, specified in the applicableLoan Document.

 

**Section6.02.****        Maintenanceof Existence.**

** **

Each BorrowerParty shall maintain its existence and continue to be duly organized under thelaws of the state of its organization. Each Borrower Party shall continue to beduly qualified to do business in each jurisdiction in which such qualificationis necessary to the conduct of its business and where the failure to be soqualified would adversely affect the validity of, the enforceability of, or theability to perform, its obligations under this Agreement or any other LoanDocument to which it is a party or by which it is bound.

 

**Section6.03.****        FinancialStatements; Accountants’ Reports; Other Information.**

 

Each Borrower,IDOT Guarantor and Guarantor shall keep and maintain at all times complete andaccurate books of accounts and records in sufficient detail to correctlyreflect (i) all of Borrower’s, IDOT Guarantor’s and Guarantor’s financialtransactions and assets and (ii) the results of the operation of each MortgagedProperty in the applicable Collateral Pool and copies of all written contracts,Leases and other instruments which affect each Mortgaged Property in theapplicable Collateral Pool (including all bills, invoices and contracts forelectrical service, gas service, water and sewer service, waste managementservice, telephone service and management services). In addition, eachBorrower, IDOT Guarantor and Guarantor shall furnish, or cause to be furnished,to Lender:

 

(a)           Annual CombinedFinancial Statements. As soon as available, and in any event within ninety(90) days after the close of its fiscal year during the Term of this Agreement,the audited combined balance sheet of the Guarantors as of the end of suchfiscal year, the audited combined statement of operations and the auditedcombined statement of cash flows of each Guarantor for such fiscal year, all inreasonable detail and, commencing in the second fiscal

 

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year duringthe Term of this Agreement, stating in comparative form (solely to the extentsuch previous year ended after the Initial Closing Date) the respective figuresfor the corresponding date and period in the prior fiscal year, prepared inaccordance with GAAP consistently applied and accompanied by an independentauditor’s report stating that the referenced financial statements presentfairly, in all material respects, the combined financial position, results of operationsand cash flows as of and for the applicable periods in conformity with GAAP,with such certification to be free of exceptions and qualifications as to thescope of the audit as to the going concern nature of the business. Suchcombined audited financial statements will be accompanied by an auditedcombined supplemental schedule of real estate by property as of the end of thefiscal year and a combined supplemental schedule of rental revenues and rental expensesby property. The combined totals of these supplemental schedules will reconcileto the audited balance sheet and statement of operations for the fiscal year,respectively.

 

(b)           Quarterly FinancialStatements. As soon as available, and in any event within sixty (60) daysafter each of the first three fiscal quarters of each fiscal year during the Termof this Agreement, the unaudited combined balance sheet of the Guarantors as ofthe end of such fiscal quarter, the unaudited statement of operations and theunaudited statements of cash flows of each Guarantor for the portion of thefiscal year ended with the last day of such quarter, all prepared in accordancewith GAAP and in reasonable detail and, commencing in the second fiscal yearduring the Term of this Agreement, stating in comparative form (solely to theextent such previous year ended after the Initial Closing Date) the respectivefigures for the corresponding date and period in the previous fiscal year,accompanied by a certificate of an authorized representative of the Guarantor,stating that the referenced financial statements present fairly, in allmaterial respects and subject to year-end adjustments, the financial position, resultsof operations and cash flows for the applicable periods in conformity withGAAP.

 

(c)           Quarterly PropertyStatements. As soon as available, and in any event within sixty (60) daysafter each of the first three Calendar Quarters, a statement of income and expensesof each Mortgaged Property in such Collateral Pool prepared in accordance with GAAPand accompanied by a certificate of an authorized representative of eachBorrower, each IDOT Guarantor and each Guarantor reasonably acceptable toLender to the effect that each such statement of income and expenses fairly,accurately and completely presents the operations of each such MortgagedProperty for the period indicated.

 

(d)           Annual PropertyStatements. On an annual basis within ninety (90) days after the close ofits fiscal year, an annual statement of income and expenses of each Mortgaged Propertyin such Collateral Pool prepared in accordance with GAAP and accompanied by a certificateof an authorized representative of each Borrower, each IDOT Guarantor and each Guarantorreasonably acceptable to Lender to the effect that each such statement ofincome and expenses fairly, accurately and completely presents the operationsof each such Mortgaged Property for the period indicated.

 

(e)           Updated Rent Rolls.Upon Lender’s request (but not more frequently than quarterly), a current RentRoll for each Mortgaged Property owned by such Borrower or IDOT Guarantor,showing the name of each tenant, and for each tenant, the space occupied, thelease expiration date, the rent payable, the rent paid and any otherinformation requested by Lender and accompanied by a certificate of anauthorized representative of each Borrower, each IDOT

 

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Guarantor andeach Guarantor reasonably acceptable to Lender to the effect that each suchRent Roll fairly, accurately and completely presents the information requiredtherein as of its date.

 

(f)            Security DepositInformation; Operating Accounts Information. Upon Lender’s request (but notmore frequently than once each Calendar Quarter) an accounting of all securitydeposits held in connection with any Lease of any part of any MortgagedProperty in such Collateral Pool, including the name and identification numberof the accounts in which such security deposits are held, the name and addressof the financial institutions in which such security deposits are held and thename and telephone number of the person to contact at such financialinstitution, along with any authority or release necessary for Lender to accessinformation regarding such accounts.

 

(g)           Accountants’Reports; Other Reports. Promptly upon receipt or preparation thereof: (i)copies of any final reports and management letters submitted to Borrower, IDOTGuarantor or Guarantor by its independent certified public accountants in connectionwith the examination of its financial statements made by such accountants(except for reports otherwise provided pursuant to subsection (a) above);provided, however, that Borrower, IDOT Guarantor or Guarantor shall only berequired to deliver such reports and management letters to the extent that theyrelate to Borrower, IDOT Guarantor or Guarantor or any Mortgaged Property insuch Collateral Pool; and (ii) all schedules, financial statements or othersimilar reports delivered by Borrower, IDOT Guarantor or Guarantor pursuant tothe Loan Documents or requested by Lender with respect to Borrower Parties’business affairs or condition (financial or otherwise) or any of the MortgagedProperties in such Collateral Pool.

 

(h)           Annual Budgets.Promptly, and in any event within sixty (60) days after the start of its fiscalyear, an annual budget for each Mortgaged Property in such Collateral Pool forsuch fiscal year, setting forth an estimate of all of the costs and expenses,including capital expenses, of maintaining and operating each such MortgagedProperty.

 

(i)            Security Law ReportingInformation. If any Borrower Party is or becomes a public company, promptlyupon the mailing thereof, (A) copies of all financial statements, reports andproxy statements sent or made available generally by such Borrower Party, orany of their Affiliates, to their respective security holders, and (B) allpress releases and other statements made available generally by such BorrowerParty, or any of their Affiliates, to the public concerning materialdevelopments in the business of Borrower Party or other party. Promptly uponthe filing thereof, all regular and periodic reports and all registrationstatements (other than the exhibits thereto and any registration statements onForm S-8 or a similar form) and prospectuses, if any, filed by Borrower Party,or any of their Affiliates, with the Securities and Exchange Commission orother Governmental Authorities. Notwithstanding the foregoing, for so long asthe statements, reports, filings, and prospectus required pursuant to this Section6.03(i) are available for public review, Borrower Parties shall not berequired to separately deliver such items to Lender.

 

(j)            Confidentiality ofCertain Information. Borrower Parties shall not disclose any terms,conditions, underwriting requirements or underwriting procedures of the CreditFacility or any of the Loan Documents; provided, however, that suchconfidential information may be disclosed (A) as required by law or pursuant togenerally accepted 

 

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accounting procedures,(B) to direct or indirect owners of any Borrower Party, officers, directors, employees,agents, partners, attorneys, accountants, engineers and other consultants ofBorrower Parties who need to know such information, provided such Persons areinstructed to treat such information confidentially, (C) to any regulatoryauthority having jurisdiction over a Borrower Party, (D) in connection with anyfilings with the Securities and Exchange Commission or other GovernmentalAuthorities, or (E) to any other Person to which such delivery or disclosuremay be necessary or appropriate (1) in compliance with any law, rule,regulation or order applicable to a Borrower Party, (2) in response to anysubpoena or other legal process or information investigative demand or (3) inconnection with any litigation to which such Borrower Party is a party.

 

(k)           Ownership Interests.Within one hundred twenty (120) days after the end of each fiscal year of eachBorrower, each IDOT Guarantor and each Guarantor and at any other time uponLender’s request, a statement that identifies all owners of any interest ineach Borrower, each IDOT Guarantor and each Guarantor and the interest held byeach, if Borrower or IDOT Guarantor is a corporation, all officers anddirectors of Borrower or IDOT Guarantor, and if Borrower, IDOT Guarantor orGuarantor is a limited liability company, all managers who are not members;provided, however, that Borrower, IDOT Guarantor and Guarantor shall not be requiredto identify limited partners or non-managing members of such Borrower, IDOT Guarantorand Guarantor, and provided further that nothing in this Section 6.03(k)shall affect the obligations to provide disclosure and obtain Lender consentsin connection with transfers of Ownership Interests as set forth in Section6.13.

 

(l)            Federal Tax Returns.Within thirty (30) days of filing, the Federal Tax Return of Borrower, IDOTGuarantor and Guarantor.

 

**Section6.04.****        Accessto Records; Discussions With Officers and Accountants.**

** **

To the extentpermitted by law and in addition to the applicable requirements of the SecurityInstruments, each Borrower shall permit Lender to and shall cause IDOTGuarantor to:

 

(a)           inspect, make copiesand abstracts of, and have reviewed or audited, such of Borrower’s, IDOT Guarantor’sor Guarantor’s books and records as may relate to the Obligations or anyMortgaged Property;

 

(b)           at any time discussBorrower’s or IDOT Guarantor’s affairs, finances and accounts with SeniorManagement or Borrower’s or IDOT Guarantor’s property managers and independentpublic accountants, provided that a responsible officer of ASOT has been giventhe opportunity to be a party to such discussions; after an Event of Default,discuss Borrower’s or IDOT Guarantor’s affairs, finances and account with Guarantor’sofficers, partners and employees;

 

(c)           discuss the MortgagedProperties’ conditions, operations or maintenance with the property managers ofsuch Mortgaged Properties, provided that a responsible officer of ASOT has beengiven the opportunity to be a party to such discussions, and the officers and employeesof Borrower, IDOT Guarantor and Guarantor; and

 

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(d)           receive any otherinformation that Lender reasonably deems necessary or relevant in connectionwith any Loan, any Loan Document or the Obligations from the officers ofBorrower or IDOT Guarantor or officers and employees of Property Manager,provided that a responsible officer of ASOT has been given the opportunity tobe a party to such discussions. Notwithstanding the foregoing, prior to anEvent of Default or Potential Event of Default under such Collateral Pool andin the absence of an emergency, all inspections shall be conducted at reasonabletimes during normal business hours upon reasonable notice to the applicable CollateralPool Borrower.

 

**Section6.05.****        Certificateof Compliance.**

** **

The applicableCollateral Pool Borrower shall deliver to Lender concurrently with the deliveryof the financial statements and/or reports required by Section 6.03(a)and Section 6.03(b) a certificate signed by an authorized representative(provided that such authorized representative shall have no personal liabilityin connection with such certificate) of such Borrower or Guarantor reasonablyacceptable to Lender (i) setting forth in reasonable detail the calculationsrequired to establish whether such Collateral Pool Borrower and Guarantor werein compliance with the requirements of Article 6 of this Agreement onthe date of such financial statements, and (ii) stating that, to the bestknowledge of such individual following reasonable inquiry, no Event of Defaultor Potential Event of Default has occurred with respect to such CollateralPool, or if an Event of Default or Potential Event of Default has occurred withrespect to such Collateral Pool, specifying the nature thereof in reasonabledetail and the action such Collateral Pool Borrower is taking or proposes totake. Any certificate required by this Section 6.05 shall run directlyto and be for the benefit of Lender and Fannie Mae.

 

**Section6.06.****        MaintainLicenses, Permits, Etc.**

** **

Each Borrowerand IDOT Guarantor shall procure and maintain in full force and effect alllicenses, Permits, charters and registrations which are material to the conductof its business.

 

**Section6.07.****        InformLender of Material Events.**

** **

Each Borrowershall promptly inform Lender in writing of any of the following (and shall deliverto Lender copies of any related written communications, complaints, orders,judgments and other documents relating to the following) of which such Borrowerhas actual knowledge:

 

(a)           Defaults. Theoccurrence of any Event of Default or any Potential Event of Default by suchCollateral Pool Borrower or IDOT Guarantor under this Agreement or any otherLoan Document with respect to its Collateral Pool;

 

(b)           RegulatoryProceedings. The commencement of any rulemaking or disciplinary proceedingor the promulgation of any proposed or final rule which would have, or mayreasonably be expected to have, a Material Adverse Effect; the receipt ofnotice from any Governmental Authority having jurisdiction over such Borrower,IDOT Guarantor or Guarantor that (i) such Borrower, IDOT Guarantor, orGuarantor is being placed under regulatory supervision, (ii) any license,Permit, charter, membership or registration material to the conduct of suchBorrower’s, IDOT Guarantor’s or Guarantor’s business or the MortgagedProperties in

 

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suchCollateral Pool is to be suspended or revoked or (iii) such Borrower, IDOTGuarantor or Guarantor is to cease and desist any practice, procedure or policyemployed by such Borrower, IDOT Guarantor or Guarantor in the conduct of itsbusiness, and with respect to (i), (ii) or (iii) the same would have, or mayreasonably be expected to have, a Material Adverse Effect;

 

(c)           BankruptcyProceedings. The commencement of any proceedings by or against suchBorrower, IDOT Guarantor or Guarantor under any applicable bankruptcy, reorganization,liquidation, insolvency or other similar law now or hereafter in effect or ofany proceeding in which a receiver, liquidator, trustee or other similarofficial is sought to be appointed for it;

 

(d)           Environmental Claim.The receipt from any Governmental Authority or other Person of any notice ofviolation, claim, demand, abatement, order or other order or direction(conditional or otherwise) for any damage, including personal injury (includingsickness, disease or death), tangible or intangible property damage,contribution, indemnity, indirect or consequential damages, damage to theenvironment, pollution, contamination or other adverse effects on theenvironment, removal, cleanup or remedial action or for fines, penalties or restrictions,resulting from or based upon (i) the existence or occurrence, or the allegedexistence or occurrence, of a Hazardous Substance Activity on any MortgagedProperty in the applicable Collateral Pool in violation of any law or (ii) theviolation, or alleged violation, of any Hazardous Materials Laws in connectionwith any Mortgaged Property in such Collateral Pool or any of the other assetsof such Borrower or IDOT Guarantor;

 

(e)           Material AdverseEffects. The occurrence of any act, omission, change or event (includingthe commencement of any proceedings by or against such Borrower, IDOT Guarantoror Guarantor in any Federal, state or local court, or before any Governmental Authority,or before any arbitrator), which has, or may reasonably be expected to have, a MaterialAdverse Effect, subsequent to the date of the most recent audited financialstatements of Guarantor, Borrower or IDOT Guarantor delivered to Lenderpursuant to Section 6.03; and

 

(f)            Accounting Changes.Any material change in such Borrower’s, IDOT Guarantor’s or Guarantor’s accountingpolicies or financial reporting practices not already reported in the financialstatements delivered pursuant to Section 6.03.

 

**Section6.08.****        Compliancewith Applicable Laws.**

 

EachCollateral Pool Borrower or IDOT Guarantor shall comply in all materialrespects with all Applicable Laws now or hereafter affecting any MortgagedProperty in such Collateral Pool or any part of any Mortgaged Property in suchCollateral Pool or requiring any alterations, repairs or improvements to anyMortgaged Property in such Collateral Pool. The applicable Collateral PoolBorrower or IDOT Guarantor shall comply with all written notices from GovernmentalAuthorities.

 

**Section6.09.****        Alterationsto the Mortgaged Properties.**

** **

Except asotherwise provided in the applicable Loan Documents, Borrower and IDOT Guarantorshall have the right to undertake any alteration, improvement, demolition,removal or

 

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construction(collectively, “**Alterations**”)to the Mortgaged Property which it owns without the prior consent of Lender; provided,however, that in any case, no such Alteration shall be made to anyMortgaged Property without the prior written consent of Lender if (i) suchAlteration could reasonably be expected to adversely affect the value of suchMortgaged Property or its operation as a Multifamily Residential Property insubstantially the same manner in which it is being operated on the date suchproperty became Collateral, (ii) the construction of such Alteration couldreasonably be expected to result in interference to the occupancy of tenants ofsuch Mortgaged Property such that tenants in occupancy with respect to fivepercent (5%) or more of the Leases (or Residential Agreements, if applicable)would be permitted to terminate their Leases (or Residential Agreements, ifapplicable) or to abate the payment of all or any portion of their rent, or(iii) such Alteration will be completed in more than twelve (12) months fromthe date of commencement or in the last year of the Term of this Agreement.Notwithstanding the foregoing, unless required by law or court order, Borroweror IDOT Guarantor must obtain Lender’s prior written consent to constructAlterations with respect to the Mortgaged Property costing in excess of, withrespect to any Mortgaged Property, $500,000. Borrower or IDOT Guarantor mustgive prior written notice to Lender of its intent to construct any Alterations requiredby law or court order (regardless of cost) or Alterations with respect to suchMortgaged Property costing in excess of $200,000 (the Lender shall be deemed tohave received such notice from Borrower or IDOT Guarantor with respect to anyAlteration costing in excess of $200,000 up to and including $500,000 ifBorrower includes such Alteration in the budget for the applicable fiscal yearrequired to be delivered by Borrower or IDOT Guarantor pursuant to Section6.03(h)); provided, however, that the preceding requirements shall not beapplicable to Alterations made, conducted or undertaken by Borrower or IDOTGuarantor as part of Borrower’s or IDOT Guarantor’s routine maintenance andrepair of the Mortgaged Properties as required by the Loan Documents. Borroweror IDOT Guarantor may, on an annual basis, obtain the prior consent of Lenderto undertake, during a fiscal year, Alterations that require Lender’s consentpursuant to this Section 6.09 by including in the annual budget for suchfiscal year delivered by Borrower or IDOT Guarantor pursuant to Section 6.03the following information: (A) the identity of the Mortgaged Property orProperties affected by such Alterations, a description of the Alterations to beundertaken, a proposed time schedule for the performance of such Alterations,and a description of the expenses shown in the annual budget that pertain to suchAlterations; (B) a description of the number of units that will be affected bysuch Alterations, the time period that any or all of such units will not beavailable for occupancy, and an estimate of the loss revenue that will resulttherefrom; and (C) a request, in writing that Lender consent, in advance, tothe undertaking of such specified Alterations. Within twenty (20) days afterreceipt of any such request, Lender shall approve or disapprove such request inwriting and, if Lender disapproves such request, it will provide Borrower orIDOT Guarantor with a brief statement of the reasons for such disapproval. IfLender does not either approve or disapprove such request within such twenty(20) day period, such request shall be deemed approved.

 

**Section6.10.****        LoanDocument Taxes.**

** **

If any tax,assessment or Imposition (other than an income tax, franchise tax or excise taximposed on or measured by, the net income or capital (including branch profitstax) of Lender (or any transferee or assignee thereof, including aparticipation holder)) (“**Loan Document Taxes**”)is levied, assessed or charged by the United States, or any State in the UnitedStates, or

 

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any politicalsubdivision or taxing authority thereof or therein upon any of the LoanDocuments or the obligations secured thereby, the interest of Lender in theMortgaged Properties, or Lender by reason of or as holder of the LoanDocuments, the applicable Collateral Pool Borrower or IDOT Guarantor shall payall such Loan Document Taxes to, for, or on account of Lender (or provide fundsto Lender for such payment, as the case may be) as they become due and payable andshall promptly furnish proof of such payment to Lender, as applicable. In theevent of passage of any law or regulation permitting, authorizing or requiringsuch Loan Document Taxes to be levied, assessed or charged, which law orregulation in the opinion of counsel to Lender may prohibit the applicableCollateral Pool Borrower or IDOT Guarantor from paying the Loan Document Taxesto or for Lender, such Borrower or IDOT Guarantor shall enter into such furtherinstruments as may be permitted by law to obligate such Borrower or IDOTGuarantor to pay such Loan Document Taxes.

 

**Section6.11.****        FurtherAssurances.**

** **

EachCollateral Pool Borrower or IDOT Guarantor, at the request of Lender, shall executeand deliver and, if necessary, file or record such statements, documents,agreements, UCC financing and continuation statements and such other instrumentsand take such further action as Lender from time to time may request asreasonably necessary, desirable or proper to carry out more effectively thepurposes of this Agreement or any of the other Loan Documents for suchCollateral Pool or to subject the Collateral to the lien and security interestsof the Loan Documents for such Collateral Pool or to evidence, perfect orotherwise implement, to assure the lien and security interests intended by theterms of the Loan Documents for such Collateral Pool or in order to exercise orenforce its rights under the Loan Documents for such Collateral Pool.

 

**Section6.12.****        Ownership.**

** **

At all timesduring the Term of this Agreement:

 

(a)           Each Borrower and IDOTGuarantor shall be a Delaware limited liability company.

 

(b)           The Managing Member andsole owner of each Borrower shall be a Delaware limited liability company 100%owned, directly or indirectly, by ASOT and the day to day operation of eachBorrower and IDOT Guarantor shall be controlled by one or more Lehman Entitiesand/or Tishman Speyer Control Persons.

 

(c)           ASOT shall be 100%owned (exclusive of preferred unit interests existing on the Initial ClosingDate), directly or indirectly, by one or more Guarantors (other than ASOT).

 

(d)           The Guarantors shall beowned, directly or indirectly, at least 9.7%, in the aggregate, by LehmanEntities and/or Tishman Speyer Control Persons.

 

(e)           The day to dayoperations of each Guarantor shall be controlled by one or more Lehman Entitiesand/or Tishman Speyer Control Persons.

 

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**Section6.13.****        Transferof Ownership Interests in Borrower Parties.**

** **

(a)           Prohibition onTransfers. Subject to paragraph (b) of this Section 6.13, no Borrower Partyshall cause or permit a Transfer or a Change of Control.

 

(b)           Permitted Transfers.Notwithstanding the provisions of paragraph (a) of this Section 6.13,the following Transfers are permitted without the consent of Lender:

 

(i)            A Transfer of director indirect interest in any Borrower Party; provided, however, that no Changein Control occurs as the result of such Transfer.

 

(ii)           The issuance by aBorrower Party of additional membership interests or stock and the subsequentdirect or indirect Transfer of such interests or stock; provided, however, thatno Change in Control occurs as the result of such Transfer.

 

(iii)          A merger with oracquisition of another entity by a Borrower Party, provided that (A) each suchBorrower Party is the surviving entity after such merger or acquisition, (B) noChange in Control occurs, and (C) such merger or acquisition does not otherwiseresult in an Event of Default other than an Event of Default arising out of thebreach of Section 6.13(a) of this Agreement.

 

(iv)          A transfer of aninterest by a Guarantor, provided that, concurrently with such transfer, thetransferee of such interest becomes an Additional Guarantor; provided that (a)any Transferee that is a subsidiary of any Guarantor shall not be required to becomean Additional Guarantor and (b) any Transferee that is not wholly-owned byGuarantor, collectively (*e.g.*, ajoint venture or fund that is controlled by Guarantor or an Affiliate thereof),shall not be required to become an Additional Guarantor, but the Affiliate ofGuarantor that owns the interest in the Transferee in question, if suchAffiliate is not itself a subsidiary of any Guarantor, shall become anAdditional Guarantor.

 

(v)           Transfers from oneGuarantor to another Guarantor. Notwithstanding the foregoing, no Transfershall be permitted if the proposed transferee is identified on any of the listsreferenced in (iii) of the definition of Prohibited Person.

 

(c)           Consent toProhibited Transfers. Lender may, in its sole discretion, consent to aTransfer that would otherwise violate this Section 6.13 if, prior to theTransfer, the relevant Borrower Party has satisfied each of the followingrequirements:

 

(i)            the submission toLender of all information required by Lender to make the determination requiredby Section 6.13;

 

(ii)           the absence of anyEvent of Default;

 

(iii)          the transferee meets allof the eligibility (including the requirement that the proposed transferee isnot a Prohibited Person), credit, management and other standards (including anystandards with respect to previous relationships between Lender or Fannie Mae andthe transferee and the organization of the transferee) customarily applied byLender or

 

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Fannie Mae atthe time of the proposed Transfer to the approval of borrowers or guarantors, asthe case may be, in connection with the origination or purchase of similarmortgages, deeds of trust or deeds to secure debt on Multifamily ResidentialProperties; 

 

(iv)          in the case of aTransfer of direct or indirect Ownership Interests in Borrower Party, as thecase may be, if transferor or any other person has obligations under any LoanDocuments, the execution by the transferee or one (1) or more individuals orentities acceptable to Lender and Fannie Mae of an assumption agreement that isacceptable to Lender and Fannie Mae and that, among other things, requires thetransferee to perform all obligations of transferor or such person set forth insuch Loan Document, and may require that the transferee comply with anyprovisions of this Instrument or any other Loan Document which previously mayhave been waived by Lender;

 

(v)           in the event suchTransfer of direct or indirect Ownership Interests in Borrower, IDOT Guarantoror Guarantor results in (i) a Change of Control or (ii) a Transfer of aMortgaged Property, (such Transfer must include all Mortgaged Properties in aCollateral Pool);

 

(vi)          Lender’s receipt of allof the following:

 

(A)          inthe case of a Transfer or assumption of an entire Collateral Pool or Pools, butnot the Transfer or full assumption of the Credit Facility, a transfer feeequal to one percent (1%) of the Loans Outstanding under such Collateral Poolor Pools immediately prior to the Transfer, and in all other cases, a transferfee equal to 25 basis points (0.25%) of the Loans Outstanding under thisAgreement immediately prior to the Transfer.

 

(B)           Borrowershall reimburse on demand Lender for all of Lender’s reasonable out-of-pocketcosts (including reasonable attorneys’ fees) incurred in reviewing the Transferrequest.

 

**Section6.14.****        Transferof Ownership of Mortgaged Property.**

** **

(a)           Prohibition onTransfers. Subject to paragraph (b) of this Section 6.14, none ofBorrower, IDOT Guarantor or Guarantor shall cause or permit a Transfer of allor any part of a Mortgaged Property.

 

(b)           Permitted Transfers.Notwithstanding provision (a) of this Section 6.14, the followingTransfers of a Mortgaged Property by Borrower, IDOT Guarantor or Guarantor are permittedwithout the consent of Lender:

 

(i)            The grant of aleasehold interest in individual dwelling units or commercial spaces inaccordance with the Security Instrument.

 

(ii)           A sale or otherdisposition of obsolete or worn out personal property which iscontemporaneously replaced by comparable personal property of equal or greatervalue which is free and clear of liens, encumbrances and security interestsother than those created by the Loan Documents or Permitted Liens.

 

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(iii)          The creation of amechanic’s or materialmen’s lien or judgment lien against a Mortgaged Propertywhich is released of record, bonded over, or otherwise remedied to Lender’ssatisfaction within thirty (30) days of the date of creation. 

 

(iv)          The grant of an easementif, prior to the granting of the easement, Borrower causes to be submitted toLender all information required by Lender to evaluate the easement, and ifLender consents to such easement based upon Lender’s determination that the easementwill not materially affect the operation of the Mortgaged Property or Lender’sinterest in the Mortgaged Property and Borrower or IDOT Guarantor pays toLender, on demand, all reasonable third-party out-of-pocket costs and expensesincurred by Lender in connection with reviewing Borrower’s request. Lendershall not unreasonably withhold its consent to or withhold its agreement tosubordinate the lien of a Security Instrument to (A) the grant of a utility easementserving a Mortgaged Property to a publicly operated utility, or (B) the grantof an easement related to expansion or widening of roadways, provided that anysuch easement is in form and substance reasonably acceptable to Lender and doesnot materially and adversely affect the access, use or marketability of aMortgaged Property.

 

(v)           The creation of aPermitted Lien.

 

(c)           Consent toProhibited Transfers. Lender may, in its sole and absolute discretion,consent to a Transfer that would otherwise violate this Section 6.14 if,prior to the Transfer, Borrower has satisfied each of the followingrequirements: 

 

(i)            the submission toLender of all information required by Lender to make the determination requiredby this Section 6.14;

 

(ii)           the absence of anyEvent of Default;

 

(iii)          the transferee meets allof the eligibility (including the requirement that the proposed transferee isnot a Prohibited Person), credit, management and other standards (including anystandards with respect to previous relationships between Lender and the transfereeand the organization of the transferee) customarily applied by Lender at thetime of the proposed Transfer to the approval of Borrower, IDOT Guarantor orGuarantor, as the case may be, in connection with the origination or purchaseof similar mortgages, deeds of trust or deeds to secure debt on MultifamilyResidential Properties;

 

(iv)          if transferor or anyother person has obligations under any Loan Documents, the execution by thetransferee or one (1) or more individuals or entities acceptable to Lender ofan assumption agreement that is acceptable to Lender and that, among otherthings, requires the transferee to perform all obligations of transferor orsuch person set forth in such Loan Document, and may require that thetransferee comply with any provisions of this Instrument or any other LoanDocument which previously may have been waived by Lender;

 

(v)           the Mortgaged Property,at the time of the proposed Transfer, meets all standards as to its physicalcondition that are customarily applied by Lender at the time of the proposedTransfer to the approval of properties in connection with the origination or purchaseof similar mortgages on multifamily properties; 

 

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(vi)          such Transfer applies toall Mortgaged Properties in a Collateral Pool (except with respect to aCollateral Pool with one (1) Mortgaged Property, no individual MortgagedProperty may be Transferred subject to the lien of the Security Instrument);

 

(vii)         Lender’s receipt of allof the following:

 

(A)          in the case of aTransfer or assumption of an entire Collateral Pool or Pools, but not theTransfer or full assumption of the Credit Facility, a transfer fee equal to onepercent (1%) of the Loans Outstanding under such Collateral Pool or Poolsimmediately prior to the Transfer, and in all other cases, a transfer fee equalto 25 basis points (0.25%) of the Loans Outstanding under this Agreementimmediately prior to the Transfer.

 

(B)           Borrower shallreimburse Lender on demand for all of Lender’s reasonable out-of-pocket costs(including reasonable attorneys’ fees) incurred in reviewing the Transferrequest.

 

**Section6.15.****        Changein Senior Management.**

** **

Borrower shallgive Lender notice of any change in the identity of Senior Management withinten (10) Business Days of the occurrence thereof.

 

**Section6.16.****        Date-DownEndorsements.**

** **

At any timeand from time to time, a Lender may obtain an endorsement to each Title InsurancePolicy containing a Revolving Credit Endorsement, amending the effective dateof the Title Insurance Policy to the date of the title search performed inconnection with the endorsement. The applicable Collateral Pool Borrower shallpay for the cost and expenses incurred by Lender to the Title Company inobtaining such endorsement, provided that, for each Title Insurance Policy, itshall not be liable to pay for more than one (1) such endorsement in any consecutivetwelve (12) month period (including if such Borrower has paid for such endorsementsin connection with a Substitution or Release).

 

**Section6.17.****        Ownershipof Mortgaged Properties.**

** **

ApplicableBorrower or IDOT Guarantor shall be the sole owner of its Mortgaged Propertiesfree and clear of any Liens other than Permitted Liens.

 

**Section6.18.****        Changein Property Manager.**

** **

CollateralPool Borrower shall give Lender notice of any change in the identity of the PropertyManager of each Mortgaged Property in such Collateral Pool, and no such changeshall be made without the prior consent of Lender, which shall not beunreasonably withheld, conditioned or delayed based on the criteria forapproval of Property Managers as required by Lender for similar loansanticipated to be sold to Fannie Mae. Notwithstanding the foregoing, so long asno Event of Default has occurred and is continuing, such Collateral PoolBorrower may change the Property Manager to an Affiliate of Borrower withoutprior consent of Lender, provided such Collateral Pool Borrower gives Lenderprior written notice of such change. As of

 

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the datehereof, Archstone Property Management LLC, a Delaware limited liability company(“**Manager LLC**”) andArchstone Property Management (California) Incorporated, a Delaware corporationand Tishman, Speyer Properties, L.P. (or any Affiliate thereof) (“**Manager Corporation**”) are herebyapproved as the Property Manager.

 

**Section6.19.****        ADALitigation.**

** **

Borroweracknowledges that that certain Equal Rights Center v. Archstonelitigation (Civil Action No. 04-03975 (AMD), U.S. Dist. Ct., D. Md.) (the “**ADA Litigation**”) identifies variousproperties (which properties may include the Mortgaged Properties), owned by Borrower,IDOT Guarantor or other entities affiliated with ASOT, as having potential construction/designviolations under the Fair Housing Act and the Americans with Disabilities Act.Borrower and IDOT Guarantor shall abide by all terms, provisions, requirementsand conditions resulting from a final adjudication, settlement, resolution orother disposition of the ADA Litigation, including, but not limited to, theConsent Decree.

 

**Section6.20.****        SpecialCovenant Regarding Newport Village.**

** **

The Borroweracknowledges that, with respect to the Mortgaged Property commonly known asNewport Village, having an address at 4757 W. Braddock Road, Alexandria,Virginia, such Mortgaged Property has or had an underground storage tank thatmay not have been properly closed. The Phase II Environmental Study withrespect to such Mortgaged Property recommended that the relevant Borrowerreport the environmental findings with respect to such underground storage tankclosure to the appropriate regulatory authorities. Borrower shall promptly makesuch report to the appropriate regulatory authorities and take any action recommendedor required by the relevant regulatory authorities. This covenant is inaddition to, and not instead of, any other environmental covenants, obligationsand indemnifications set forth in the Loan Documents.

 

**Section6.21.****        SpecialCovenant Regarding The Bennington.**

** **

The Borroweracknowledges that, with respect to the Mortgaged Property commonly known as TheBennington, having an address at 1201 S. Eads Street, Arlington, Virginia, suchMortgaged Property has or had an underground storage tank that may not havebeen properly closed. The Phase II Environmental Study with respect to suchMortgaged Property recommended that the relevant Borrower report theenvironmental findings with respect to such underground storage tank closure tothe appropriate regulatory authorities. Borrower shall promptly make suchreport to the appropriate regulatory authorities and take any action recommendedor required by the relevant regulatory authorities. This covenant is inaddition to, and not instead of, any other environmental covenants, obligationsand indemnifications set forth in the Loan Documents.

 

**Section6.22.****        SpecialCovenant Regarding Oakwood Long Beach Marina.**

** **

The Borroweracknowledges that various activities have taken place on the Mortgaged Propertycommonly known as Oakwood Long Beach Marina, having an address at 333 First Street,Seal Beach, California, that may have resulted in damage or other requirementswith

 

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respect toenvironmental matters relating to such Mortgaged Property. Borrower hasrepresented to Lender it is seeking a no further action letter from theCalifornia Environmental Protection Agency and/or other appropriate regulatoryauthorities. Borrower hereby agrees to use commercially reasonable efforts topromptly obtain such no action letter or other regulatory approval with respectto such Mortgage Property and, if required, take any and all remedial or otheraction recommended or required by any applicable regulatory authority. Thiscovenant is in addition to, and not instead of, any other covenants,obligations and indemnifications set forth in the Loan Documents.

 

**Section6.23.****        SpecialCovenant Regarding Archstone del Rey and Oakwood Marina del Rey.**

** **

(a)           The Borroweracknowledges that, with respect to the Mortgaged Property commonly known asArchstone Marina del Rey and having an address at 4157 Via Marina, Marina delRey, California, a default currently exists under the ground lease related tosuch property. Borrower hereby agrees that it will use commercially reasonableefforts to cure such default promptly, and shall provide evidence to Lenderthat such cure has been accepted and acknowledged by the landlord under suchGround Lease and any other applicable regulatory authority. Borrower’sobligation under this Section 6.23(a) shall be in addition to, and notin lieu of, any other covenants, obligations and indemnifications set forth inthe Loan Documents.

 

(b)           The Borroweracknowledges that, with respect to the Mortgaged Property commonly known asOakwood Marina del Rey and having an address at 4111 Via Marina, Marina delRey, California, a default currently exists under the ground lease related tosuch property. Borrower hereby agrees that it will use commercially reasonableefforts to cure such default promptly, and shall provide evidence to Lenderthat such cure has been accepted and acknowledged by the landlord under suchGround Lease and any other applicable regulatory authority. Borrower’sobligation under this Section 6.23(b) shall be in addition to, and notin lieu of, any other covenants, obligations and indemnifications set forth inthe Loan Documents.

 

**Section6.24.****        SpecialCovenant Regarding The Statesman.**

** **

The Borroweracknowledges that, with respect to the Mortgaged Property commonly known as TheStatesman, having an address at 2020 F Street, N.W., Washington, D.C., such MortgagedProperty has or had an underground storage tank that has been designated as “permanentlyout of use.” The Phase I Environmental Study with respect to such Mortgaged Propertyrecommended that the relevant Borrower perform a Phase II Environmental Studyon such Mortgaged Property. Borrower shall promptly perform such Phase IIEnvironmental Study and take any action recommended or required by such PhaseII Environmental Study. This covenant is in addition to and not instead of, anyother environmental covenants, obligations and indemnifications set forth inthe Loan Documents.

 

**Section6.25.****        SpecialCovenant Regarding Connecticut Heights.**

** **

The Borroweracknowledges that, with respect to the Mortgaged Property commonly known asConnecticut Heights, having an address at 4850 Connecticut Avenue, N.W., Washington,D.C., such Mortgaged Property has an active underground storage tank. The Phase

 

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IEnvironmental Study with respect to such Mortgaged Property recommended thatthe relevant Borrower perform a Phase II Environmental Study on such MortgagedProperty. Borrower shall promptly perform such Phase II Environmental Study andtake any action recommended or required by such Phase II Environmental Study.This covenant is in addition to and not instead of, any other environmentalcovenants, obligations and indemnifications set forth in the Loan Documents.

 

**Section6.26.****        SpecialCovenant Regarding Line of Credit Availability.**

** **

Borrowershall, within fifteen (15) days of the end of each fiscal quarter, report inwriting to Lender the amount of Line of Credit Availability and whether a Lineof Credit Triggering Event has occurred.

 

**Section6.27.****        SpecialCovenant Regarding Key West and The Westmont**.

 

The MortgagedProperty known as Key West, having an address at 750 Columbus Avenue, New York,New York, and the Mortgaged Property commonly known as The Westmont, having anaddress at 730 Columbus Avenue, New York, New York, are each subject to certainregulatory agreements with the New York City Housing Development Corporation(the “**HDC**”). Pursuant tothose agreements, consent of the HDC to the transfer of certain interests relatedto the consummation of the transactions described herein is required from HDC,and consent to permit Lender to foreclose on the Security Instruments withrespect to such Mortgaged Properties is also required from HDC. Borrower hasreceived certain assurances from in-house legal counsel for the HDC withrespect to approval of the transactions contemplated hereby. Borrower herebyagrees that it will use commercially reasonable efforts to obtain consent tothe transaction contemplated hereby, and consent to foreclosure by Lender underits security instrument in form and substance satisfactory to Lender.

 

**ARTICLE 7**

**NEGATIVE COVENANTS OF BORROWER**

** **

Borroweragrees and covenants with Lender that, at all times during the Term of this Agreement:

 

**Section7.01.****        OtherActivities.**

** **

No BorrowerParty shall:

 

(a)           in the case of anyBorrower, IDOT Guarantor or managing member or general partner of a Borrower oran IDOT Guarantor, amend its Organizational Documents in any material respectwithout the prior written consent of Lender;

 

(b)           in the case of anyBorrower Party not described in (a) of this Section 7.01, amend itsOrganizational Documents in any way that would have a material adverse effecton any Borrower Party’s ability to perform its obligations under the LoanDocuments without the prior written consent of Lender;

 

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(c)           dissolve or liquidatein whole or in part (except for the sale of Mortgaged Properties in theordinary course of business);

 

(d)           in the case of anyBorrower, IDOT Guarantor or managing member or general partner of a Borrower oran IDOT Guarantor, except as otherwise provided in this Agreement, without theprior written consent of Lender, merge or consolidate with any Person;

 

(e)           in the case of anyBorrower Party not described in (d) of this Section 7.01, if such mergeror consolidation would have a Material Adverse Effect on any Borrower Party’s abilityto perform its obligations under the Loan Documents, merge or consolidate withany other Person without the prior written consent of Lender;

 

(f)            use, or permit to beused, any Mortgaged Property in the applicable Collateral Pool for any uses orpurposes other than as a Multifamily Residential Property and ancillary usesconsistent with Multifamily Residential Properties;

 

(g)           in the case of anyBorrower, IDOT Guarantor or managing member or general partner of a Borrower oran IDOT Guarantor, convert from one type of legal entity to another type oflegal entity; or

 

(h)           in the case of anyBorrower Party not described in (g) of this Section 7.01, if suchconversion would have a Material Adverse Effect on any Borrower Party’s abilityto perform its obligations under the Loan Documents, convert from one type oflegal entity to another type of legal entity.

 

Each BorrowerParty shall promptly provide Lender with notice and a copy of any amendment ofits Organizational Documents that does not require prior written consent of Lender.

 

**Section7.02.****        Liens.**

** **

NeitherBorrower nor IDOT Guarantor shall create, incur, assume or suffer to exist any Lienon Borrower’s or IDOT Guarantor’s, as applicable, interest in any MortgagedProperty in its Collateral Pool or any part of any Mortgaged Property, exceptthe Permitted Liens.

 

**Section7.03.****        Indebtedness.**

** **

NeitherBorrower nor IDOT Guarantor shall incur or be obligated at any time with respectto any Indebtedness (other than Loans) in connection with or secured by any ofthe Mortgaged Properties. None of Borrower, IDOT Guarantor, any mezzanineborrower under the Lehman Mezzanine Debt, or any entity whose sole asset is adirect or indirect ownership interest in Borrower or IDOT Guarantor shall incurany “mezzanine debt,” issue any preferred equity or incur any similarIndebtedness or equity with respect to any Mortgaged Property other than the LehmanMezzanine Debt and the Bank Debt. Notwithstanding the foregoing, in connectionwith the operation of the Mortgaged Properties, each Borrower and each IDOTGuarantor, without duplication, shall each be permitted to incur Indebtednessin the maximum aggregate amount of $150,000 provided such Borrower or IDOTGuarantor shall not incur or assume any Indebtedness (a) that is not paid whendue nor within any applicable grace period in any  

 

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agreement orinstrument relating to such Indebtedness, or (b) that becomes due and payable beforeits normal maturity by reason of a default or event of default, howeverdescribed, or any other event of default shall occur and continue after theapplicable grace period, if any, specified in the agreement or instrumentrelating to such Indebtedness.

 

**Section7.04.****        PrincipalPlace of Business.**

** **

NeitherBorrower nor IDOT Guarantor shall change its principal place of business or thelocation of its books and records, each as set forth in Borrower’s Certificateor IDOT Guarantor’s Certificate, as applicable, without first giving thirty(30) days’ prior written notice to Lender.

 

**Section7.05.****        Condominiums.**

** **

NeitherBorrower nor IDOT Guarantor shall submit any Mortgaged Property in its CollateralPool to a condominium regime during the Term of this Agreement. Notwithstandingthe foregoing, the Mortgaged Properties commonly known as Archstone ColumbiaCrossing, having an address at 1957 Columbia Pike, Arlington, Virginia;Archstone 2000 Commonwealth, having an address at 2000 Commonwealth Avenue,Brighton, Massachusetts; San Mateo, having an address at 1101 Park Place, SanMateo, California; Parc Vista, having an address at 801 15th Street South,Arlington, Virginia; and Archstone Sierra del Oro, having an address at 1456 SerfasClub Drive, Corona, California are subject to a condominium regime and shall bepermitted to be subject to such regime during the term of this Agreement. Inaddition, such Mortgaged Properties shall be subject to the terms of theSecurity Instrument with respect to the operation of such condominium regime.

 

**Section7.06.****        Restrictionson Distributions.**

** **

NeitherBorrower nor IDOT Guarantor shall make any distributions of any nature or kind whatsoeverto the owners of its Ownership Interests as such if, at the time of suchdistribution, an Event of Default has occurred and remains uncured.

 

**Section7.07.****        MasterLeases.**

** **

No MortgagedProperty may be master leased or otherwise leased in whole or in bulk, providedthat the Mortgaged Properties identified on Exhibit M shall be masterleased to Master Tenant pursuant to a Master Lease in the form approved byLender prior to the Initial Closing Date. Borrower shall not, without the priorwritten consent of Lender, which consent shall be given in Lender’s reasonablediscretion, agree to any material modification or amendment to any Master Leaseand shall not terminate any Master Lease without Lender’s prior writtenconsent, unless after such termination all Residential Agreements related tothe relevant Mortgaged Property shall remain in full force and effect withBorrower becoming a landlord under such Resident Agreements, provided thatLender’s consent shall no longer be required after a Mortgaged Property isreleased from a Collateral Pool. In the event that any Master Lease maturesearlier than the Termination Date, no later than ninety (90) days prior toexpiration of such Master Lease Borrower shall extend the term of such MasterLease, and provide written evidence to Lender of the same, on the termssubstantially similar to the form as in effect on the

 

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date hereof.In the event Master Tenant terminates the Master Lease, Borrower shall promptlyprovide notice of such termination to Lender.

 

**Section7.08.****        CashManagement.**

** **

Except asprovided herein, no Borrower, IDOT Guarantor or any direct or indirect owner ofany Borrower or IDOT Guarantor shall enter into any lockbox or cash management arrangementinvolving rents or proceeds of any Mortgaged Property or distributions of anykind from Borrower or IDOT Guarantor with any party. If the lender under theLehman Mezzanine Debt or the Bank Debt requests that any Borrower or IDOTGuarantor enter into any cash management arrangement, each Borrower, IDOTGuarantor or any direct or indirect owner of any Borrower or IDOT Guarantor, priorto entering into any such arrangement, shall enter into a lockbox or cashmanagement agreement reasonably acceptable to Lender (prepared by Lender) andis in substantially the form of Fannie Mae’s then current standard form oflockbox and/or cash management agreement. Such cash management agreement shallauthorize Lender to terminate distribution of amounts otherwise distributableby Borrower and IDOT Guarantor upon the occurrence of an Event of Default underany Loan.

 

**ARTICLE 8**

**FEES**

** **

**Section8.01.****        Re-UnderwritingFee.**

** **

On the ClosingDate of any Extension, Release, Additional Fixed Loan, or Substitution (on theClosing Date of the Release of the Release Mortgaged Property under suchSubstitution), the applicable Collateral Pool Borrower shall pay to Lender are-underwriting fee equal to the product of $5,000 multiplied by the number ofMortgaged Properties in such Collateral Pool at the time of such Extension,Release Request, Substitution Request or Loan Request, as applicable (the “**Re-Underwriting Fee**”).

 

**Section8.02.****        OriginationFee.**

** **

On the ClosingDate of any Additional Fixed Loan, the applicable Collateral Pool Borrowershall pay to Lender an origination fee (the “**Origination Fee**”) equal to the product of 100 basis points(1.0%) multiplied by the amount of such Additional Fixed Loan.

 

**Section8.03.****        DueDiligence Fees.**

** **

Initial DueDiligence Fees. The applicable Collateral PoolBorrower shall pay to Lender actual due diligence fees for each MortgagedProperty in such Collateral Pool (including reasonable legal fees and expensesrelating to due diligence and the closing of this Agreement) (“**Initial Due Diligence Fees**”) withrespect to the Initial Mortgaged Properties in such Collateral Pool. On orprior to the Initial Closing Date, Lender shall notify such Borrower of theactual amount of the Initial Due Diligence Fees and such Borrower shall pay toLender such Initial Due Diligence Fees on the Initial Closing Date.

 

(a)           Additional DueDiligence Fees for Substitute Mortgaged Properties. The applicableCollateral Pool Borrower shall pay to Lender actual due diligence feesincluding the 

 

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Fannie Maereview fee of $1,500 for each Mortgaged Property (the “**Additional Due Diligence Fees**”) withrespect to each proposed Substitute Mortgaged Property anticipated to be addedto a Collateral Pool. In connection with any Substitution Request, Borrowershall pay to Lender a deposit equal to the product obtained by multiplying

 

(i)            $12,000 by

 

(ii)           the number of SubstituteMortgaged Properties (such amount to be allocated to Lender for its duediligence expenses).

 

Any AdditionalCollateral Due Diligence Fees not covered by the deposit shall be paid by Borroweron the Closing Date (or if the proposed Substitute Mortgaged Property does not becomepart of the Collateral Pool, on demand) for the Substitute Mortgaged Property.Any portion of the Additional Collateral Due Diligence Fee paid to Lender notactually used by Lender to cover reasonable due diligence expenses shall bepromptly refunded to the applicable Collateral Pool Borrower. 

 

**Section8.04.****        LegalFees and Expenses.**

** **

(a)           Initial Legal Fees.The applicable Collateral Pool Borrower shall pay, or reimburse Lender for, allreasonable out-of-pocket third-party legal fees and expenses incurred by Lenderand by Fannie Mae in connection with the preparation, review and negotiation ofthis Agreement and any other Loan Documents executed on the date of thisAgreement. 

 

(b)           Fees and ExpensesAssociated with Requests. The applicable Collateral Pool Borrower shallpay, or reimburse Lender for, all reasonable out-of-pocket third-party costs andexpenses incurred by Lender, including the out-of-pocket legal fees andexpenses incurred by Lender in connection with the preparation, review andnegotiation of all documents, instruments and certificates to be executed anddelivered in connection with each Request for such Collateral Pool Borrower,the performance by Lender of any of its obligations with respect to theRequest, the satisfaction of all conditions precedent to such Borrower’s rightsor Lender’s obligations with respect to the Request, and all transactionsrelated to any of the foregoing, including the cost of title insurance premiumsand applicable recordation and transfer taxes and charges and all otherreasonable costs and expenses in connection with a Request. The obligations ofthe applicable Borrower under this subsection shall be absolute andunconditional, regardless of whether the transaction requested in the Requestactually occurs. The applicable Collateral Pool Borrower shall pay such costsand expenses to Lender on the Closing Date for the Request, or, as the case maybe, after demand by Lender when Lender determines that such Request will notclose.

 

**Section8.05.****        Failureto Close any Request.**

** **

If a Collateral Pool Borrower makes a Request and fails to close on theRequest for any reason other than the default by Lender, then such Borrowershall pay to Lender and Fannie Mae all actual cost and expenses (including anybreakage costs) incurred by Lender and Fannie Mae in connection with thefailure to close.  

 

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** **

**ARTICLE 9**

**EVENTS OF DEFAULT**

 

**Section9.01.****        Eventsof Default.**

 

Each of thefollowing events shall constitute an “**Event of Default**”under this Agreement, whatever the reason for such event and whether it shallbe voluntary or involuntary, or within or without the control of Borrower, IDOTGuarantor or Guarantor or be effected by operation of law or pursuant to anyjudgment or order of any court or any order, rule or regulation of anyGovernmental Authority, provided that, except with respect to the Loans securedby the Mortgaged Properties comprising a Collateral Pool (as set forth in RecitalsB and F of this Agreement, each Loan in a Collateral Pool iscross-defaulted to each other Loan in such Collateral Pool), an Event ofDefault that relates solely to any Collateral Pool shall not be an Event ofDefault under any other Loan or Collateral Pool:

 

(a)           the occurrence of adefault under any Loan Document related to such Borrower’s Collateral Poolbeyond the cure period, if any, set forth therein; or

 

(b)           the failure by Borrowerto pay within thirty (30) days of its due date or request by Lender, asapplicable, when due any amount payable by Borrower under any Note, anySecurity Instrument, this Agreement or any other Loan Document, including anyfees, costs or expenses; provided, however, that (i) such thirty (30) day graceperiod shall not apply to: (A)  regularlyscheduled monthly payments of principal, interest, discount (if any) or anypayment upon the Maturity Date (as defined in the Note) or the applicable PoolTermination Date or (B)  any fees, costsor expenses due and payable on the Initial Closing Date or any fees, costs or expensesdue and payable on the Closing Date of any Request; and (ii) such thirty (30)day grace period shall not be more than (or in addition to) any other graceperiod provided in the Note, any Security Instrument, this Agreement or anyother Loan Document; or

 

(c)           the failure by Borroweror IDOT Guarantor to perform or observe any covenant set forth in Section6.07 (Inform Lender of Material Events), Section 6.09 (Alterations toMortgaged Properties), Section 6.12 (Ownership), Section 6.13 (Transferof Ownership Interest in Borrower Parties), Section 6.14 (Transfer ofOwnership of Mortgaged Property), Section 6.17 (Ownership of MortgagedProperties), Section 6.18 (Change in Property Manager), Section 7.01(Other Activities), Section 7.02 (Liens), Section 7.03(Indebtedness), Section 7.06  (Restrictionson Distributions), Section 7.07 (Master Leases); or

 

(d)           the failure by Borroweror IDOT Guarantor to perform or observe any covenant contained in Article 6or Article 7 (other than those sections specifically referenced in Section9.01(c) above) for thirty (30) days after receipt of notice of such failureby such Borrower or IDOT Guarantor from Lender, provided that such period shallbe extended for up to thirty (30) additional days if such Borrower or IDOTGuarantor, in the discretion of Lender, is diligently pursuing a cure of suchdefault within thirty (30) days after receipt of notice from Lender; or

 

(e)           any warranty,representation or other written statement made by or on behalf of Borrower,IDOT Guarantor or Guarantor contained in this Agreement, any other Loan

 

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Document or inany instrument furnished in compliance with or in reference to any of the foregoing,is false or misleading in any material respect on any date when made or deemedmade and, in the case of any warranty, representation or other writtenstatement that was not intentionally false or misleading when made, and inLender’s reasonable judgment is curable, remains uncured for thirty (30) daysafter notice of such false or misleading statement shall have been given toBorrower; or

 

(f)            (i) any Borrower Partyor any Tishman-Lehman Bankruptcy Person shall (A) commence a voluntary case,whether of such entity or an Affiliate thereof, under the Federal bankruptcylaws (as now or hereafter in effect), (B) file a petition seeking to takeadvantage of any other laws, domestic or foreign, relating to bankruptcy,insolvency, reorganization, debt adjustment, winding up or composition oradjustment of debts, (C) consent to or fail to contest in a timely andappropriate manner any petition filed against it in an involuntary case undersuch bankruptcy laws or other laws, (D) apply for or consent to, or fail tocontest in a timely and appropriate manner, the appointment of, or the takingof possession by, a receiver, custodian, trustee or liquidator of itself or ofa substantial part of its property, domestic or foreign, (E) admit in writingits inability to pay, or generally not be paying, its debts as they become due,(F) make a general assignment for the benefit of creditors, (G) assert that anyBorrower Party (but with respect to any Guarantor, solely with respect to theGuaranty) has no liability or obligations under this Agreement or any otherLoan Document to which it is a party; (H) take any action, petition to or causeor permit any of its assets to be partitioned, or (I) take any action for the purposeof effecting any of the foregoing; or (ii) a case or other proceeding shall becommenced against any Borrower Party or any Tishman-Lehman Bankruptcy Person inany court of competent jurisdiction seeking (A) relief under the Federalbankruptcy laws (as now or hereafter in effect) or under any other laws,domestic or foreign, relating to bankruptcy, insolvency, reorganization,winding upon or composition or adjustment of debts, or (B) the appointment of atrustee, receiver, custodian, liquidator or the like of any Borrower Party orany Tishman-Lehman Bankruptcy Person, whether by such entity or an Affiliatethereof, for all or a substantial part of the property, domestic or foreign, ofany Borrower Party or any Tishman-Lehman Bankruptcy Person, whether by suchentity or an Affiliate thereof, and any such case or proceeding shall continueundismissed or unstayed for a period of ninety (90) consecutive days, or anyorder granting the relief requested in any such case or proceeding against anyBorrower Party or any Tishman-Lehman Bankruptcy Person, whether by such entityor an Affiliate thereof (including an order for relief under such Federalbankruptcy laws), shall be entered; or

 

(g)           if any provision ofthis Agreement or any other Loan Document or the lien and security interestpurported to be created hereunder or under any Loan Document shall at any timefor any reason cease to be valid and binding in accordance with its terms onBorrower, IDOT Guarantor or Guarantor, or shall be declared to be null andvoid, or the validity or enforceability hereof or thereof or the validity orpriority of the lien and security interest created hereunder or under any otherLoan Document shall be contested by Borrower, IDOT Guarantor or Guarantor seekingto establish the invalidity or unenforceability hereof or thereof, or Borrower,IDOT Guarantor or Guarantor (only with respect to the Guaranty) shall deny thatit has any further liability or obligation hereunder or thereunder; or

 

(h)           (i) the execution byBorrower or IDOT Guarantor of a chattel mortgage or other security agreement onany materials, fixtures or articles used in the construction or

 

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operation ofthe improvements located on any Mortgaged Property or on articles of personal propertylocated therein (other than in connection with any Permitted Liens), or (ii) ifany such materials, fixtures or articles are purchased pursuant to anyconditional sales contract or other security agreement or otherwise so that theOwnership thereof will not vest unconditionally in Borrower or IDOT Guarantorfree from encumbrances, or (iii) if Borrower or IDOT Guarantor does not furnishto Lender upon request the contracts, bills of sale, statements, receipted vouchersand agreements, or any of them, under which Borrower or IDOT Guarantor claimstitle to such materials, fixtures, or articles; or

 

(i)            the failure byBorrower or IDOT Guarantor to comply with any requirement of any GovernmentalAuthority within thirty (30) days after written notice of such requirementshall have been given to Borrower or IDOT Guarantor by such Governmental Authority;provided that, if the required action is commenced and diligently pursued by Borroweror IDOT Guarantor within such thirty (30) days, then Borrower or IDOT Guarantorshall have such additional time to comply with such requirement as permitted bythe Governmental Authority; or

 

(j)            a dissolution orliquidation for any reason (whether voluntary or involuntary) of any BorrowerParty or any Tishman-Lehman Bankruptcy Person, except the sale of MortgagedProperties in the ordinary course of business; or

 

(k)           any final andnonappealable judgment against Borrower Party, any attachment or other levyagainst any portion of Borrower Party’s assets with respect to a claim or claimsin an amount in excess of $250,000 individually and/or $500,000 in theaggregate remains unpaid, unstayed on appeal undischarged, unbonded, not fullyinsured or undismissed for a period of ninety (90) days; or

 

(l)            the failure byBorrower, IDOT Guarantor or Guarantor to perform or observe any material term,covenant, condition or agreement hereunder, other than as contained insubsections (a) through (k) above, or in any other Loan Document, within thirty(30) days after receipt of notice from Lender identifying such failure,provided such period shall be extended for up to thirty (30) additional days ifBorrower or IDOT Guarantor, in the discretion of Lender, is diligently pursuinga cure of such default within thirty (30) days after receipt of notice fromLender and corrective action is instituted by Borrower or IDOT Guarantor withinsuch period and pursued diligently and in good faith, then such failure shallnot constitute an Event of Default unless such failure is not cured by Borroweror IDOT Guarantor within sixty (60) days after receipt of notice from Lenderidentifying such failure.

 

**ARTICLE 10**

**REMEDIES**

 

**Section10.01.****      Remedies;Waivers.**

 

Upon theoccurrence of an Event of Default, Lender may do any one or more of the followingwith respect to any Loan secured by a Collateral Pool to which the Event ofDefault (or the Borrower causing such Event of Default) relates (withoutpresentment, protest or notice of protest, all of which are expressly waived byeach Borrower Party):

 

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(a)           bywritten notice to the defaulting Collateral Pool Borrower, to be effective upondispatch and declare the principal of, and interest on, the Loans and all othersums owing by such Borrower to Lender under any of the Loan Documents for suchCollateral Pool forthwith due and payable, whereupon the principal of, andinterest on, the Loans and all other sums owing by such Collateral PoolBorrower to Lender under any of the Loan Documents for such Collateral Poolwill become forthwith due and payable.

 

(b)           Lendershall have the right to pursue any other remedies available to it under any ofthe Loan Documents for such Collateral Pool.

 

(c)           Lendershall have the right to pursue all remedies available to it at law or inequity, including obtaining specific performance and injunctive relief withrespect to such Collateral Pool.

 

**Section10.02.****      Waivers;Rescission of Declaration.**

 

Lender shallhave the right, to be exercised in its complete discretion, to waive any breachhereunder (including the occurrence of an Event of Default), by a writingsetting forth the terms, conditions, and extent of such waiver signed by Lenderand delivered to the applicable Collateral Pool Borrower. Unless such writingexpressly provides to the contrary, any waiver so granted shall extend only tothe specific event or occurrence which gave rise to the waiver and not to anyother similar event or occurrence which occurs subsequent to the date of suchwaiver.

 

**Section10.03.****      Lender’sRight to Protect Collateral and Perform Covenants and Other Obligations.**

 

If anyBorrower, IDOT Guarantor or Guarantor fails to perform the covenants and agreementscontained in this Agreement or any of the other Loan Documents for theapplicable Collateral Pool, after all applicable grace periods, if any, thenLender at Lender’s option may make such appearances, disburse such sums andtake such action as Lender deems necessary, in its sole discretion, to protectLender’s interest, including (i) disbursement of reasonable attorneys’ fees,(ii) entry upon the Mortgaged Property to make repairs and replacements, (iii)  procurement of satisfactory insurance asprovided in Section 5 of the Security Instrument encumbering the Mortgaged Propertyin such Collateral Pool, and (iv) if the Security Instrument is on a leasehold,exercise of any option to renew or extend the ground lease on behalf of Borroweror IDOT Guarantor and the curing of any default of Borrower or IDOT Guarantorin the terms and conditions of the ground lease. Any amounts disbursed byLender pursuant to this Section 10.03, with interest thereon, shallbecome additional Indebtedness of Collateral Pool Borrower secured by theapplicable Collateral Pool Loan Documents. Unless the applicable CollateralPool Borrower and Lender agree to other terms of payment, such amounts shall beimmediately due and payable and shall bear interest from the date ofdisbursement at the weighted average, as determined by Lender, of the interestrates in effect from time to time for each Loan unless collection from suchBorrower of interest at such rate would be contrary to Applicable Law, in whichevent such amounts shall bear interest at the highest rate which may becollected from such Borrower under Applicable Law. Nothing contained in this Section10.03 shall require Lender to incur any expense or take any actionhereunder.

 

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**Section10.04.****      NoRemedy Exclusive.**

 

Unlessotherwise expressly provided, no remedy herein conferred upon or reserved is intendedto be exclusive of any other available remedy, but each remedy shall becumulative and shall be in addition to other remedies given under the LoanDocuments or existing at law or in equity.

 

**Section10.05.****      NoWaiver.**

 

No delay oromission to exercise any right or power accruing under any Loan Document uponthe happening of any Event of Default or Potential Event of Default shallimpair any such right or power or shall be construed to be a waiver thereof,but any such right and power may be exercised from time to time and as often asmay be deemed expedient.

 

**Section10.06.****      NoNotice.**

 

To entitleLender to exercise any remedy reserved to Lender in this Article 10, itshall not be necessary to give any notice, other than such notice as may berequired under the applicable provisions of this Agreement or any of the otherLoan Documents.

 

**ARTICLE 11**

**IMPOSITION DEPOSITS**

 

**Section11.01.****      Insuranceand Water/Sewer Waived; Other Imposition Deposits Required.**

 

EachCollateral Pool Borrower or IDOT Guarantor shall establish funds for taxes, insurancepremiums and certain other charges for each Mortgaged Property in suchCollateral Pool in accordance with Section 7(a) of the Security Instrument foreach such Mortgaged Property. Notwithstanding the foregoing and the provisionsof Subsection 7(a) of the Security Instrument for each such Mortgaged Property,and subject to the conditions of this Article 11, provided that no Eventof Default has occurred and is continuing and Collateral Pool Borrower or IDOTGuarantor has timely delivered to Lender any insurance bills or premium noticesthat it has received pursuant to the requirements of this Section, Lender shallnot require Collateral Pool Borrower or IDOT Guarantor to deposit with Lenderany sums for Imposition Deposits ONLY to the extent they relate to (x) anywater and sewer charges, and (y) the premiums for fire and other hazardinsurance, rent loss insurance and such other insurance as Lender may require underSection 19 of the Security Instrument. Such Collateral Pool Borrower or IDOTGuarantor must (1) pursuant to the terms of Section 19 of the SecurityInstrument, provide Lender with proof of payment (e.g., paid receipts orcancelled checks) of all such premiums for fire and other hazard insurance,rent loss insurance and such other insurance required under Section 19 of the SecurityInstrument, (2) pursuant to the terms of Section 19 of the Security Instrument,deliver to Lender the original (or a duplicate original) of a renewal policy inform satisfactory to Lender, and (3) to the extent not covered in (1) or (2)above, pay Impositions for which Lender is not collecting Imposition Depositsno later than the date sixty (60) days after the date such Impositions are dueand before the addition of any interest, fine, penalty or cost for nonpayment.  In the event that (i) an Event of Default hasoccurred and is continuing or (ii) Such Collateral

 

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Pool Borroweror IDOT Guarantor does not timely pay any of the Impositions as described in Section7(a) of the Security Instrument and this Section 11.01, or fails toprovide Lender with proof of such payment as set forth in Section 7(a) of theSecurity Instrument and this Section 11.01, or (iii) a Line of CreditTriggering Event has occurred, Lender may immediately thereafter require suchCollateral Pool Borrower or IDOT Guarantor to deposit with Lender all of theImposition Deposits as provided in this Article 11 and in Section 7(a)of the Security Instrument. The terms and provisions of this Article 11shall be applicable only so long as the current Borrower or IDOT Guarantorremains as the record title owner of the Mortgaged Property, and shallimmediately terminate and have no further force or effect upon a sale or exchangeof the Mortgaged Property to a third-party purchaser in which the Indebtedness securedby the Security Instrument is assumed by such third-party purchaser. Nothing inthis Article 11 or Section 7(a) of the Security Instrument shall bedeemed to waive Imposition Deposits with respect to Taxes, which deposits shallbe required pursuant to the terms of Section 7(a) of the Security Instrumentand this Article 11.

 

**Section11.02.****      ImpositionDeposits.**

 

Notwithstandingthe provision of Section 7(d) of the Security Instrument, on or before the firstday of each Loan Year after the Initial Closing Date, and on or before theClosing Date of a Substitution Request or a Release Request, if Lenderdetermines, based on the foregoing methodology, that a modified amount isrequired to be deposited with Lender as Imposition Deposits, applicableCollateral Pool Borrower or IDOT Guarantor shall deposit any deficiency withLender, or Lender shall release any overage to such Collateral Pool Borrower orIDOT Guarantor, provided that, in the case of the latter, no Event of Defaultor Potential Event of Default then exists hereunder. The applicable CollateralPool Borrower or IDOT Guarantor shall, subject to such Collateral Pool Borrower’sor IDOT Guarantor’s right to contest under Section 15(d) of the SecurityInstruments, pay each Imposition relating to a Mortgaged Property before thelast date upon which such payment may be made without any penalty or interest chargebeing added. Subject to such Collateral Pool Borrower’s or IDOT Guarantor’sright to contest under Section 15(d) of the Security Instruments, suchCollateral Pool Borrower or IDOT Guarantor shall deliver to Lender evidencethat such Borrower or IDOT Guarantor has paid each Imposition within thirty (30) days after making such payment.

 

**Section11.03.****      ReplacementReserves.**

 

EachCollateral Pool Borrower and IDOT Guarantor, as applicable, shall execute a ReplacementReserve Agreement for each of the Mortgaged Properties in the respective CollateralPool and shall (unless waived by the Lender) make all deposits for replacement reservesin accordance with the terms of the Replacement Reserve Agreement.

 

**Section11.04.****      Completion/RepairReserves.**

 

If required byLender, each Collateral Pool Borrower and IDOT Guarantor, as applicable, shallexecute a Completion/Repair and Security Agreement for each of the MortgagedProperties in the respective Collateral Pool and shall (unless waived by theLender) make all deposits for completion reserves in accordance with the termsof the Completion/Repair and Security Agreement.

 

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**ARTICLE 12**

**LIMITS ON PERSONAL LIABILITY**

 

**Section12.01.****      PersonalLiability to Borrower.**

 

(a)           Limits on PersonalLiability. Except as otherwise provided in this Article 12, neitherBorrower nor any partner, member, shareholder, employee, director, agent or Affiliateof Borrower, or any partner, member, shareholder, employee, director, agent, orAffiliate of any heir, legal representative or successor or assign of theforegoing (the “**Exculpated Parties**”)shall have any personal liability under this Agreement, the Note, the SecurityInstruments or any other Loan Document for the performance of any Obligationsof Borrower under the Loan Documents, and Lender’s only recourse for thepayment and performance of the Obligations shall be Lender’s exercise of itsrights and remedies with respect to the Mortgaged Property and any otherCollateral held by Lender as security for the Obligations. This limitation onthe Exculpated Parties’ liability shall not limit or impair Lender’senforcement of its rights against Guarantor under the Guaranty.

 

(b)           Exceptions to Limitson Personal Liability. Each Collateral Pool Borrower shall be personallyliable to Lender for the repayment of a portion of the Loans and other amountsdue under the Loan Documents evidencing such Collateral Pool Borrower’s Loan equalto any actual loss or actual damage suffered by Lender as a result of (i)failure of such Borrower to pay to Lender, upon demand after an Event ofDefault, all Rents to which Lender is entitled under Section 3(a) of theSecurity Instrument encumbering the Mortgaged Property and the amount of allsecurity deposits collected by such Borrower or IDOT Guarantor from tenants thenin residence; (ii) failure of such Borrower or IDOT Guarantor to apply allinsurance proceeds, condemnation proceeds or security deposits from tenants asrequired by the Security Instrument encumbering the Mortgaged Property; (iii)failure of such Borrower or IDOT Guarantor to comply with its obligations underthe Loan Documents with respect to the delivery of books and records andfinancial statements; (iv) fraud or written material misrepresentation by suchBorrower or IDOT Guarantor or any officer, director, partner or member ofBorrower or IDOT Guarantor in connection with the application for or creationof the Obligations or any request for any action or consent by Lender; (v)failure to comply with any and all indemnification obligations contained inSection 18 (environmental) of any Security Instrument; (vi) distribution by theBorrower or IDOT Guarantor of any Rents in any Calendar Quarter to the extentthat all amounts due and payable to third parties by such Borrower or IDOTGuarantor, including but not limited to all operating expenses, capitalexpenditures and amounts payable under the Loan Documents have not been paid infull (except that such Borrower or IDOT Guarantor will not be personally liableto the extent that such Borrower or IDOT Guarantor lacks the legal right todirect the disbursement of such sums because of a bankruptcy, receivership or similarjudicial proceeding; (vii) the acquisition by any Borrower or IDOT Guarantor ofany property or operation of any business not permitted by Section 33 (singlepurpose) of any Security Instrument securing such Borrower’s Loan; (viii)failure to obtain an estoppel and/or subordination agreement with respect toany Master Lease as required by Section 4.07(k) of this Agreement; (ix)the structuring of the Security Instruments which encumber the Mortgaged Propertiessubject to a Master Lease; (x) failure of such Borrower to cure the defaultunder the ground lease affecting the Mortgaged Property commonly known asOakwood Marina Del Rey (having an address of 4111 Via Marina, Marina Del Rey, California); (xi) failure ofsuch Borrower to

 

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cure thedefault under the ground lease affecting the Mortgaged Property commonly knownas Archstone Marina Del Rey (having an address of 4157 Via Marina, Marina Del Rey, California);(xii) failure to obtain an estoppel certificate with respect to any MortgagedProperty that is subject to a ground lease as required by Section 4.07(l);(xiii) failure to deliver a final survey for any Mortgaged Property as requiredby Section 4.07(c) of this Agreement; (xiv) failure to deliver anycommercial lease and/or, to the extent required by Lender, delivery any tenantestoppel certificate and subordination, non-disturbance and attornmentagreement with respect to any such commercial lease in accordance with Section4.07(m); (xv) failure to deliver any consent required by Lender inaccordance with Section 4.07(n) of this Agreement, including but not limitedto a consent of the New York City Housing Development Corporation (“**HDC**”) with respect to the MortgagedProperty commonly known as Key West, having an address of 750  Columbus Avenue, New York, New York, or theMortgaged Property commonly known as The Westmont, having an address of 730Columbus Avenue, New York, New York, satisfactory to Lender, to the effect that(A) the transactions contemplated by the Borrower and its Affiliates on thedate hereof have been consented to by the HDC, (B) the foreclosure by Lenderunder the Security Instruments relating to such Mortgaged Properties has beenconsented to by the HDC, and (C) transfer of such Mortgaged Properties to a“qualified transferee” reasonably acceptable to Lender in connection with aforeclosure by Lender under the Security Instruments relating to such MortgagedProperties has been consented to by the HDC; or (xvi) failure to comply (or anyallegations of a failure to comply) with Subchapter IV of The Rental HousingConversion and Sale Act of 1980, as amended, D.C Law 3-86.

 

(c)           Full Recourse.Each Collateral Pool Borrower shall be personally liable to Lender for thepayment and performance of all Obligations upon the occurrence of any of the followingEvents of Default: (i) a Transfer that is an Event of Default under Section 21  (transfers) of any Security Instrumentsecuring such Borrower’s Loan; or (ii) a Bankruptcy Event. As used in thissubparagraph, the term “**Bankruptcy Event**”means any one or more of the following events which occurs during the Term ofthe Agreement:

 

(i)            The Borrower or IDOTGuarantor (A) commences a voluntary case (or, if applicable, a joint case)under any chapter of the Bankruptcy Code, (B) institutes (by petition,application, answer, consent or otherwise) any other bankruptcy, insolvency, reorganization,arrangement, readjustment of debt, dissolution, liquidation or similarproceeding relating to it under the laws of any jurisdiction, (C) makes ageneral assignment for the benefit of creditors, (D) applies for, consents toor acquiesces in the appointment of any receiver, liquidator, custodian,sequestrator, trustee or similar officer for it or for all or any substantialpart of the Mortgaged Property or (E) admits in writing its inability to payits debts generally as they mature.

 

(ii)           Guarantor or anyAffiliate of Guarantor files an involuntary petition against the Borrower orIDOT Guarantor under any chapter of the Bankruptcy Code or under any otherbankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution,liquidation or similar proceeding relating to the Borrower or IDOT Guarantorunder the laws of any jurisdiction.

 

(iii)          Both (A) an involuntarypetition under any chapter of the Bankruptcy Code is filed against the Borroweror IDOT Guarantor or the Borrower or IDOT

 

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Guarantordirectly or indirectly becomes the subject of any bankruptcy, insolvency, reorganization,arrangement, readjustment of debt, dissolution, liquidation or similarproceeding relating to it under the laws of any jurisdiction, or in equity, and(B) the Borrower or IDOT Guarantor or any Affiliate of the Borrower or IDOTGuarantor has acted in concert or conspired with such creditors of the Borroweror IDOT Guarantor (other than the Lender) to cause the filing thereof with theintent to interfere with enforcement rights of the Lender after the occurrenceof an Event of Default.

 

(d)           Permitted TransferNot Release. No Transfer by any party of its Ownership Interests in theBorrower or IDOT Guarantor shall release the party from liability under this Article12, this Agreement or any other Loan Document, unless Lender shall have approvedthe Transfer in accordance with this Agreement, or such Transfer is otherwise permittedin this Agreement, and shall have expressly released the party in connectionwith the Transfer.

 

(e)           Miscellaneous.To the extent that any Borrower or IDOT Guarantor has personal liability underthis Section 12.01, or Guarantor has liability under the Guaranty,such liability shall be joint and several and Lender may exercise its rightsagainst such Borrower, IDOT Guarantor or Guarantor personally without regard towhether Lender has exercised any rights against any Mortgaged Property securingthe Loan to such Borrower or any other security, or pursued any rights againstany guarantor, or pursued any other rights available to Lender under the LoanDocuments or Applicable Law. For purposes of this Article 12, the term “**Mortgaged Property**” shall not include anyfunds that (i) have been applied by Borrower or IDOT Guarantor as required orpermitted by the Loan Documents prior to the occurrence of an Event of Default,or (ii) are owned by Borrower, IDOT Guarantor or Guarantor and which Borroweror IDOT Guarantor was unable to apply as required or permitted by the Loan Documentsbecause of a bankruptcy, receivership, or similar judicial proceeding.

 

**Section12.02.****      AdditionalBorrowers.**

 

If the ownerof a Substitute Mortgaged Property is an Additional Borrower or Additional IDOTGuarantor, the owner of such Substitute Mortgaged Property must demonstrate tothe satisfaction of Lender that:

 

(i)            the AdditionalBorrower or IDOT Guarantor is a Single-Purpose entity; and

 

(ii)           the Additional Borroweror IDOT Guarantor shall be owned as described in Section 6.12.

 

In addition,on the Closing Date of the addition of a Substitute Mortgaged Property, the ownerof such Substitute Mortgaged Property, if such owner is an Additional Borroweror Additional IDOT Guarantor, shall become a party to a contribution agreementin a manner satisfactory to Lender, shall deliver a Certificate of Borrower inform and substance satisfactory to Lender, and execute and deliver, along withthe other applicable Collateral Pool Borrowers, any other Loan Documentsrequired by Lender. Any Additional Borrower or Additional IDOT Guarantor of aSubstitute Mortgaged Property which becomes added to a Collateral Pool shall be

 

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a Borrower orIDOT Guarantor for purposes of this Agreement and shall execute and deliver to Lenderan amendment adding such Additional Borrower or Additional IDOT Guarantor as a partyto this Agreement and revising the Exhibits hereto, as applicable, to reflectthe Substitute Mortgaged Property, identify the applicable Collateral Pool, andadd the Additional Borrower or Additional IDOT Guarantor, in each casesatisfactory to Lender.

 

Upon therelease of a Mortgaged Property, the Borrower or IDOT Guarantor which owns suchRelease Mortgaged Property shall automatically without further action bereleased from its obligations under this Agreement and the other LoanDocuments, except for any liabilities or obligations of such Borrower or IDOTGuarantor which arose prior to the Closing Date of such release, and except asspecifically set forth in Section 18 of the Security Instrument.

 

**Section12.03.****      BorrowerAgency Provisions.**

 

(a)           Each Borrower, IDOTGuarantor, Additional Borrower and Additional IDOT Guarantor hereby irrevocablydesignates ASOT as the borrower agent (the “**Borrower****Agent**”)to be its agent and in such capacity to receive on behalf of Borrower or IDOTGuarantor all proceeds, receive all notices on behalf of Borrower or IDOTGuarantor under this Agreement, make all Requests under this Agreement, andexecute, deliver and receive all instruments, certificates, Requests,documents, amendments, writings and further assurances now or hereafter requiredhereunder, on behalf of such Borrower or IDOT Guarantor, and hereby authorizes Lenderto pay over all loan proceeds hereunder in accordance with the direction ofBorrower Agent. Each Borrower and IDOT Guarantor hereby acknowledges that allnotices required to be delivered by Lender to any Borrower or IDOT Guarantorshall be delivered to Borrower Agent and thereby shall be deemed to have beenreceived by such Borrower or IDOT Guarantor.

 

(b)           The handling of this credit facilityas a co-borrowing facility with a Borrower Agent in the manner set forth inthis Agreement is solely as an accommodation to Borrower and IDOT Guarantor andis at their request. Lender shall not incur liability to Borrower or IDOTGuarantor as a result thereof. To induce Lender to do so and in consideration thereof,each Borrower and IDOT Guarantor hereby indemnifies the Lender and holds Lenderharmless from and against any and all liabilities, expenses, losses, damagesand claims of damage or injury asserted against Lender by any Person arisingfrom or incurred by reason of Borrower Agent handling of the financing arrangementsof Borrower or IDOT Guarantor as provided herein, reliance by Lender on anyrequest or instruction from Borrower Agent or any other action taken by Lenderwith respect to this Section 12.03 except due to willful misconduct orgross negligence of the indemnified party.

 

**Section12.04.****      WaiversWith Respect to Other Borrower Secured Obligation.**

 

To the extentthat a Security Instrument or any other Loan Document executed by one (1)  Collateral Pool Borrower or IDOT Guarantorsecures an Obligation of another Collateral Pool Borrower or IDOT Guarantor(the “**Other Borrower Secured Obligation**”),and/or to the extent that a Collateral Pool Borrower or IDOT Guarantor hasguaranteed the debt of another Borrower or IDOT Guarantor subject to suchCollateral Pool pursuant to Article 12, the Borrower or IDOT Guarantorwho executed such Loan Document and/or guaranteed such debt (the “**Waiving****Borrower**”) hereby agrees to the provisions of this Section12.04. To the extent that any

 

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MortgagedProperties are located in California, the references to the California Codebelow shall apply to this Agreement and any California Security Instrumentsecuring a California Mortgaged Property, otherwise the California Code shallhave no effect on this Agreement or any other Loan Document.

 

(a)           The Waiving Borrowerhereby waives any right it may now or hereafter have to require thebeneficiary, assignee or other secured party under such Loan Document, as a conditionto the exercise of any remedy or other right against it thereunder or under anyother Loan Document executed by the Waiving Borrower in connection with theOther Borrower Secured Obligation: (i) to proceed against the other Borrower orIDOT Guarantor or any other person, or against any other collateral assigned toLender by either Borrower, IDOT Guarantor or any other person; (ii) to pursueany other right or remedy in Lender’s power; (iii) to give notice of the time,place or terms of any public or private sale of real or personal propertycollateral assigned to Lender by the other Borrower, IDOT Guarantor or anyother person (other than the Waiving Borrower), or otherwise to comply withSection 9615 of the California Commercial Code (as modified or recodified fromtime to time) with respect to any such personal property collateral located inthe State of California; or (iv) to make or give (except as otherwise expresslyprovided in the Security Documents) any presentment, demand, protest, notice ofdishonor, notice of protest or other demand or notice of any kind in connectionwith the Other Borrower Secured Obligation or any collateral (other than theCollateral described in such Security Document) for the Other Borrower SecuredObligation.

 

(b)           The Waiving Borrowerhereby waives any defense it may now or hereafter have that relates to: (i) anydisability or other defense of the other Borrower, IDOT Guarantor or any otherperson; (ii) the cessation, from any cause other than full performance, of theOther Borrower Secured Obligation; (iF) the application of the proceeds of theOther Borrower Secured Obligation, by the other Borrower, IDOT Guarantor or anyother person, for purposes other than the purposes represented to the WaivingBorrower by the other Borrower or IDOT Guarantor or otherwise intended orunderstood by the Waiving Borrower or the other Borrower or IDOT Guarantor;(iv) any act or omission by Lender which directly or indirectly results in or contributesto the release of the other Borrower, IDOT Guarantor or any other person or anycollateral for any Other Borrower Secured Obligation; (v) theunenforceability or invalidity of any Security Document or other Borrower orIDOT Guarantor Loan Document (other than the Security Instrument orReimbursement Mortgage executed by the Waiving Borrower that secures the OtherBorrower Secured Obligation) or guaranty with respect to any Other BorrowerSecured Obligation, or the lack of perfection or continuing perfection or lackof priority of any Lien (other than the Lien of such Security Instrument) whichsecures any Other Borrower Secured Obligation; (vi) any failure of Lender tomarshal assets in favor of the Waiving Borrower or any other person; (vii) anymodification of any Other Borrower Secured Obligation, including any renewal,extension, acceleration or increase in interest rate; (viii) any and all rightsand defenses arising out of an election of remedies by Lender, even though thatelection of remedies, such as a nonjudicial foreclosure with respect tosecurity for a guaranteed obligation, has destroyed the Waiving Borrower’srights of subrogation and reimbursement against the principal by the operationof Section 580d of the California Code of Civil Procedure or otherwise; (ix)any law which provides that the obligation of a surety or guarantor mustneither be larger in amount nor in other respects more burdensome than that ofthe principal or which reduces a surety’s or guarantor’s obligation inproportion to the principal obligation; (x) any failure of Lender to file

 

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or enforce aclaim in any bankruptcy or other proceeding with respect to any person; (xi)the election by Lender, in any bankruptcy proceeding of any person, of theapplication or non-application of Section 1111(b)(2) of the Bankruptcy Code;(xii) any extension of credit or the grant of any lien under Section 364 of theBankruptcy Code; (xiii) any use of cash collateral under Section 363 of theBankruptcy Code; or (xiv) any agreement or stipulation with respect to theprovision of adequate protection in any bankruptcy proceeding of any person.The Waiving Borrower further waives any and all rights and defenses that it mayhave because the Other Borrower Secured Obligation is secured by real property;this means, among other things, that:  (A)Lender may collect from the Waiving Borrower without first foreclosing on anyreal or personal property collateral pledged by the other Borrower or IDOTGuarantor; (B) if Lender forecloses on any real property collateral pledged bythe other Borrower or IDOT Guarantor, then (1) the amount of the Other BorrowerSecured Obligation may be reduced only by the price for which that collateralis sold at the foreclosure sale, even if the collateral is worth more than thesale price, and (2) Lender may foreclose on the real property encumbered by theSecurity Instrument executed by the Waiving Borrower and securing the OtherBorrower Secured Obligation even if Lender, by foreclosing on the real propertycollateral of the Other Borrower, has destroyed any right the Waiving Borrowermay have to collect from the Other Borrower. Subject to the last sentence of Section 12.03, the foregoingsentence is an unconditional and irrevocable waiver of any rights and defensesthe Waiving Borrower may have because the Other Borrower Secured Obligation issecured by real property. These rights and defenses being waived by the WaivingBorrower include, but are not limited to, any rights or defenses based uponSection 580a, 580b, 580d or 726 of the California Code of Civil Procedure.Without limiting the generality of the foregoing or any other provision hereof,the Waiving Borrower further expressly waives, except as provided in Section12.04(g) below, to the extent permitted by law any and all rights anddefenses, which might otherwise be available to it under California Civil CodeSections 2787 to 2855, inclusive, 2899 and 3433, or under California Code ofCivil Procedure Sections 580a, 580b, 580d and 726, or any of such sections.

 

(c)           The Waiving Borrowerhereby waives any and all benefits and defenses under California Civil CodeSection 2810 and agrees that by doing so the Security Instrument executed bythe Waiving Borrower and securing the Other Borrower Secured Obligation shallbe and remain in full force and effect even if the other Borrower or IDOTGuarantor had no liability at the time of incurring the Other Borrower SecuredObligation, or thereafter ceases to be liable. The Waiving Borrower hereby waives any and all benefits and defensesunder California Civil Code Section 2809 and agrees that by doing so theWaiving Borrower’s liability may be larger in amount and more burdensome thanthat of the other Borrower or IDOT Guarantor. The Waiving Borrower herebywaives the benefit of all principles or provisions of law, which are or mightbe in conflict with the terms of any of its waivers, and agrees that theWaiving Borrower’s waivers shall not be affected by any circumstances, whichmight otherwise constitute a legal or equitable discharge of a surety or aguarantor. The Waiving Borrower hereby waives the benefits of any right ofdischarge and all other rights under any and all statutes or other lawsrelating to guarantors or sureties, to the fullest extent permitted by law,diligence in collecting the Other Borrower Secured Obligation, presentment,demand for payment, protest, all notices with respect to the Other BorrowerSecured Obligation, which may be required by statute, rule of law or otherwiseto preserve Lender’s rights against the Waiving Borrower hereunder, includingnotice of acceptance, notice of any amendment of the Loan Documents evidencingthe Other Borrower Secured Obligation, notice of the occurrence of any defaultor Event of Default, notice of intent

 

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to accelerate,notice of acceleration, notice of dishonor, notice of foreclosure, notice ofprotest, notice of the incurring by the other Borrower or IDOT Guarantor of anyobligation or indebtedness and all rights to require Lender to (i) proceedagainst the other Borrower or IDOT Guarantor, (ii) proceed against any generalpartner of the other Borrower or IDOT Guarantor, (iii) proceed against orexhaust any collateral held by Lender to secure the Other Borrower SecuredObligation, or (iv) if the other Borrower or IDOT Guarantor is a partnership,pursue any other remedy it may have against the other Borrower or IDOTGuarantor, or any general partner of the other Borrower or IDOT Guarantor,including any and all benefits under California Civil Code Sections 2845, 2849and 2850.

 

(d)           The Waiving Borrowerunderstands that the exercise by Lender of certain rights and remediescontained in a Security Instrument executed by the other Borrower or IDOT Guarantor(such as a nonjudicial foreclosure sale) may affect or eliminate the Waiving Borrower’sright of subrogation against the other Borrower or IDOT Guarantor and that the WaivingBorrower may therefore incur a partially or totally nonreimburseable liability.  Nevertheless, the Waiving Borrower herebyauthorizes and empowers Lender to exercise, in its sole and absolutediscretion, any right or remedy, or any combination thereof, which may then be available,since it is the intent and purpose of the Waiving Borrower that its waivers shallbe absolute, independent and unconditional under any and all circumstances.

 

(e)           In accordance withSection 2856 of the California Civil Code, the Waiving Borrower also waives anyright or defense based upon an election of remedies by Lender, even though suchelection (e.g., nonjudicial foreclosure with respect to any collateral held byLender to secure repayment of the Other Borrower Secured Obligation) destroysor otherwise impairs the subrogation rights of the Waiving Borrower to anyright to proceed against the other Borrower for reimbursement, or both, byoperation of Section 580d of the California Code of Civil Procedure orotherwise.

 

(f)            In accordance withSection 2856 of the California Civil Code, the Waiving Borrower waives any andall other rights and defenses available to the Waiving Borrower by reason ofSections 2787 through 2855, inclusive, of the California Civil Code, includingany and all rights or defenses the Waiving Borrower may have by reason ofprotection afforded to the other Borrower or IDOT Guarantor with respect to theOther Borrower Secured Obligation pursuant to the antideficiency or other lawsof the State of California limiting or discharging the Other Borrower SecuredObligation, including Sections 580a, 580b, 580d, and 726 of the California Codeof Civil Procedure.

 

(g)           In accordance withSection 2856 of the California Civil Code and pursuant to any other ApplicableLaw, the Waiving Borrower agrees to withhold the exercise of any and allsubrogation, contribution and reimbursement rights against Borrower or IDOTGuarantor, against any other person, and against any collateral or security forthe Other Borrower Secured Obligation, including any such rights pursuant toSections 2847 and 2848 of the California Civil Code, until the Other BorrowerSecured Obligation has been indefeasibly paid and satisfied in full, allobligations owed to Lender under the Loan Documents have been fully performed,and Lender have released, transferred or disposed of all of their right, titleand interest in such collateral or security.

 

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(h)           Each Borrower and IDOTGuarantor hereby irrevocably and unconditionally agrees that in the event that,notwithstanding Section 12.04(g) hereof, to the extent its agreement andwaiver set forth in Section 12.04(g) is found by a court of competent jurisdictionto be void or voidable for any reason and such Borrower or IDOT Guarantor hasany subrogation or other rights against any other Borrower or IDOT Guarantor,any such claims, direct or indirect, that such Borrower or IDOT Guarantor mayhave by subrogation rights or other form of reimbursement, contribution orindemnity, against any other Borrower or IDOT Guarantor or to any security orany such Borrower or IDOT Guarantor, shall be and such rights, claims andindebtedness are hereby deferred, postponed and fully subordinated in time andright of payment to the prior payment, performance and satisfaction in full ofthe Obligations. Until payment and performance in full with interest (includingpost-petition interest in any case under any chapter of the Bankruptcy Code) ofthe Obligations, each Borrower and IDOT Guarantor agrees not to accept anypayment, or satisfaction of any kind, of Indebtedness of any other Borrower orIDOT Guarantor in respect of any such subrogation rights arising by virtue of paymentsmade pursuant to this Article 12, and hereby assigns such rights orindebtedness to Lender, including the right to file proofs of claim and to votethereon in connection with any case under any chapter of the Bankruptcy Code,including the right to vote on any plan of reorganization. In the event thatany payment on account of any such subrogation rights shall be received by anyBorrower or IDOT Guarantor in violation of the foregoing, such payment shall beheld in trust for the benefit of Lender, and any amount so collected should beturned over to Lender for application to the Obligations.

 

(i)            At any time withoutnotice to the Waiving Borrower, and without affecting or prejudicing the rightof Lender to proceed against the Collateral described in any Loan Documentexecuted by the Waiving Borrower and securing the Other Borrower Secured Obligation,(i) the time for payment of the principal of or interest on, or the performanceof, the Other Borrower Secured Obligation may be extended or the Other BorrowerSecured Obligation may be renewed in whole or in part; (ii) the time for theother Borrower’s or IDOT Guarantor’s performance of or compliance with anycovenant or agreement contained in the Loan Documents evidencing the OtherBorrower Secured Obligation, whether presently existing or hereinafter enteredinto, may be extended or such performance or compliance may be waived; (iii)the maturity of the Other Borrower Secured Obligation may be accelerated asprovided in the related Note or any other related Loan Document; (iv) therelated Note or any other related Loan Document may be modified or amended byLender and the other Borrower or IDOT Guarantor in any respect, including anincrease in the principal amount; and (v) any security for the Other BorrowerSecured Obligation may be modified, exchanged, surrendered or otherwise dealtwith or additional security may be pledged or mortgaged for the Other BorrowerSecured Obligation.

 

(j)            It is agreed amongeach Borrower, IDOT Guarantor and Lender that all of the foregoing waivers areof the essence of the transaction contemplated by this Agreement and the LoanDocuments and that but for the provisions of this Article 12 and suchwaivers Lender would decline to enter into this Agreement. 

 

(k)           Waiving Borrowerrepresents and warrants having established with other Borrower adequate meansof obtaining, on an ongoing basis, such information as waiving Borrower mayrequire concerning all matters bearing on the risk of nonpayment or nonperformanceof the Obligations. Waiving Borrower assumes sole, continuing responsibility

 

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for obtainingsuch information from sources other than from Lender. Lender has no duty to provideany information to Waiving Borrower.

 

**Section12.05.****      Jointand Several Obligation; Cross-Guaranty.**

 

Notwithstandinganything contained in this Agreement or the other Borrower Documents to thecontrary (but subject to the last sentence of Section 12.02 and theprovisions of Section 12.12), each Borrower shall have joint and severalliability for all Obligations of the Loan secured by such Borrower’s CollateralPool. Notwithstanding the intent of all of the parties to this Agreement thatall Obligations of each Borrower with respect to a Collateral Pool under this Agreementand the other Borrower Loan Documents shall be joint and several Obligations ofeach Borrower subject to such Collateral Pool, each Borrower, on a joint andseveral basis, hereby irrevocably guarantees to Lender and its successors andassigns, the full and prompt payment of the Loan secured by such Borrower’sCollateral Pool (whether at stated maturity, by acceleration or otherwise) andperformance of, all Obligations secured by such Borrower’s Collateral Pool owedor hereafter owing to Lender by each other Borrower owning a Mortgaged Propertysubject to the same Collateral Pool. Similarly, each IDOT Guarantor, on a jointand several basis, hereby irrevocably guarantees to Lender and its successorsand assigns, the full and prompt payment of the Loan secured by such Borrower’sCollateral Pool (whether at stated maturity, by acceleration or otherwise) andperformance of all Obligations secured by such Borrower’s Collateral Pool owedor hereafter owing to Lender by each other Borrower and IDOT Guarantor owning aMortgaged Property subject to the same Collateral Pool, on a secondary, and nota primary, basis provided that each IDOT Guarantor’s liability shall be effectiveonly upon the occurrence of a default by each Borrower. Each Borrower or IDOT Guarantoragrees that its guaranty obligation hereunder is an unconditional guaranty ofpayment and performance and not merely a guaranty of collection. The Obligationsof each Borrower or IDOT Guarantor under this Agreement shall not be subject toany counterclaim, set-off, recoupment, deduction, cross-claim or defense basedupon any claim any Borrower or IDOT Guarantor may have against Lender or anyother Borrower or IDOT Guarantor.

 

**Section12.06.****      NoImpairment.**

 

Each Borrowerand IDOT Guarantor agrees that the provisions of this Article 12 are forthe benefit of Lender and their successors, transferees, endorsees and assigns,and nothing herein contained shall impair, as between any other Borrower orIDOT Guarantor and Lender, the obligations of such other Borrower or IDOTGuarantor under the Loan Documents.

 

**Section12.07.****      Electionof Remedies.**

 

(a)        Lender,in its discretion, may (i) bring suit against any one or more Collateral PoolBorrower, jointly and severally, without any requirement that Lender first proceedagainst any other Borrower or IDOT Guarantor or any other Person; (ii) compromiseor settle with any one or more Borrower or IDOT Guarantor, or any other Person,for such consideration as Lender may deem proper; (iii) release one or moreBorrower or IDOT Guarantor, or any other Person, from liability; and (iv)otherwise deal with any Borrower or IDOT Guarantor and any other Person, or anyone or more of them, in any manner, or resort to any of the Collateral at anytime held by it for performance of the Obligations or any other

 

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source ormeans of obtaining payment of the Obligations, and no such action shall impairthe rights of Lender to collect from any Borrower or IDOT Guarantor any amountguaranteed by any Borrower or IDOT Guarantor under this Article 12.

 

(b)           If, in the exercise ofany of its rights and remedies, Lender shall forfeit any of its rights orremedies, including its rights to enter a deficiency judgment against anyCollateral Pool Borrower or any other Person, whether because of any ApplicableLaws pertaining to “election of remedies” or the like, each Collateral PoolBorrower hereby consents to such action by Lender and waives any claim basedupon such action, even if such action by Lender shall result in a full orpartial loss or any rights of subrogation which each such Borrower might otherwisehave had but for such action by Lender. Any election of remedies which resultsin the denial or impairment of the right of Lender to seek a deficiencyjudgment against any Collateral Pool Borrower shall not impair any other suchCollateral Pool Borrower’s obligation to pay the full amount of the Obligationssecured by the applicable Collateral Pool. In the event Lender shall bid at anyforeclosure or trustee’s sale or at any private sale permitted by law or any ofthe Loan Documents, Lender may bid all or less than the amount of theObligations secured by the applicable Collateral Pool and the amount of suchbid need not be paid by Lender but shall be credited against the Obligationssecured by the applicable Collateral Pool. The amount of the successful bid atany such sale, whether Lender or any other party is the successful bidder,shall be conclusively deemed to be fair market value of the Collateral securedby the applicable Collateral Pool and the difference between such bid amountand the remaining balance of the Obligations secured by the applicableCollateral Pool shall be conclusively deemed to be amount of the Obligationssecured by the applicable Collateral Pool guaranteed under this Article 12,notwithstanding that any present or future law or court decision or ruling mayhave the effect of reducing the amount of any deficiency claim to which Lendermight otherwise be entitled but for such bidding at any such sale.

 

**Section12.08.****      Subordinationof Other Obligations.**

 

(a)         EachBorrower and IDOT Guarantor hereby irrevocably and unconditionally agrees thatall amounts payable from time to time to such Borrower or IDOT Guarantor by anyother Borrower or IDOT Guarantor pursuant to any agreement, whether secured orunsecured, whether of principal, interest or otherwise, other than the amountsreferred to in this Article 12 (collectively, the “**Subordinated Obligations**”), shall beand such rights, claims and indebtedness are, hereby deferred, postponed andfully subordinated in time and right of payment to the prior payment,performance and satisfaction in full of the Obligations; provided, however,that payments may be received by any Borrower or IDOT Guarantor in accordancewith, and only in accordance with, the provisions of Section 12.08(b)hereof.

 

(b)        Untilthe Obligations under all the Loan Documents have been finally paid in full orfully performed and all the Loan Documents for such Collateral Pool have been terminated,each such Collateral Pool Borrower and IDOT Guarantor irrevocably and unconditionallyagrees it will not ask, demand, sue for, take or receive, directly orindirectly, by set-off, redemption, purchase or in any other manner whatsoever,any payment with respect to, or any security or guaranty for, the whole or anypart of the Subordinated Obligations, and in issuing documents, instruments oragreements of any kind evidencing the Subordinated Obligations, each suchCollateral Pool Borrower and IDOT Guarantor hereby agrees that it will

 

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not receiveany payment of any kind on account of the Subordinated Obligations, so long asany of the Obligations under all the Loan Documents are outstanding or any ofthe terms and conditions of any of the Loan Documents are in effect; provided,however, that, notwithstanding anything to the contrary contained herein, if noPotential Event of Default or Event of Default or any other event or conditionwhich would constitute an Event of Default after notice or lapse of time orboth has occurred and is continuing under any of the Loan Documents pertainingto such Collateral Pool, then (i) payments may be received by such Borrower orIDOT Guarantor in respect of the Subordinated Obligations in accordance withthe stated terms thereof, and (ii) each such Borrower, IDOT Guarantor andGuarantor shall be permitted to make distributions in accordance with the termsof the applicable Organizational Documents. Except as aforesaid, each Borrowerand IDOT Guarantor agrees not to accept any payment or satisfaction of any kindof indebtedness of any other Borrower or IDOT Guarantor in respect of theSubordinated Obligations and hereby assigns such rights or indebtedness toFannie Mae, which assignment shall be of no further force and effect upon fullsatisfaction of the Obligations, including the right to file proofs of claimand to vote thereon in connection with any case under any chapter of the BankruptcyCode, including the right to vote on any plan of reorganization. In the eventthat any payment on account of Subordinated Obligations shall be received byany Borrower or IDOT Guarantor in violation of the foregoing, such paymentshall be held in trust for the benefit of Lender, and any amount so collectedshall be turned over to Lender upon demand.

 

**Section12.09.****      Insolvencyand Liability of Other Borrower.**

 

So long as anyof the Obligations are outstanding with respect to the applicable Collateral Pool,if a petition under any chapter of the Bankruptcy Code is filed by or againstany Collateral Pool Borrower or IDOT Guarantor (the “**Subject Borrower**” for the purposes of Section12.09, Section 12.10, Section 12.11 and Section 12.12of this Agreement), each other Collateral Pool Borrower or IDOT Guarantorsubject to such Collateral Pool (each, an “**OtherBorrower**” for the purposes of Section 12.09, Section 12.10,Section 12.11 and Section 12.12 of this Agreement) agrees to fileall claims against the Subject Borrower in any bankruptcy or other proceedingin which the filing of claims is required by law in connection withindebtedness owed by the Subject Borrower and to assign to Lender all rightsthereunder up to the amount of such indebtedness, which assignment shall be ofno further force and effect upon full satisfaction of the Obligations. In allsuch cases, the Person or Persons authorized to pay such claims shall pay toLender the full amount thereof and Lender agrees to pay such Other Borrower anyamounts received in excess of the amount necessary to pay the Obligations ofthe Loan secured by such Borrower’s or IDOT Guarantor’s Mortgaged Property.Each Other Borrower hereby assigns to Lender all of such Borrower’s or IDOTGuarantor’s rights to all such payments to which such Other Borrower wouldotherwise be entitled but not to exceed the full amount of the Obligations.  In the event that, notwithstanding the foregoing,any such payment shall be received by any Other Borrower before the Obligationsshall have been finally paid in full, such payment shall be held in trust forthe benefit of and shall be paid over to Lender upon demand. Furthermore, notwithstandingthe foregoing, the liability of each Borrower or IDOT Guarantor hereunder shallin no way be affected by:

 

(a)           the release ordischarge of any Other Borrower in any creditors’, receivership, bankruptcy orother proceedings; or

 

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(b)           the impairment,limitation or modification of the liability of any Other Borrower or the estateof any Other Borrower in bankruptcy resulting from the operation of any presentor future provisions of any chapter of the Bankruptcy Code or other statute orfrom the decision in any court.

 

**Section12.10.****      Preferences,Fraudulent Conveyances, Etc.**

 

If Lender isrequired to refund, or voluntarily refunds, any payment received from any Borroweror IDOT Guarantor because such payment is or may be avoided, invalidated,declared fraudulent, set aside or determined to be void or voidable as apreference, fraudulent conveyance, impermissible setoff or a diversion of trustfunds under the bankruptcy laws or for any similar reason, including withoutlimitation any judgment, order or decree of any court or administrative bodyhaving jurisdiction over any Borrower or IDOT Guarantor or any of its property,or upon or as a result of the appointment of a receiver, intervenor, custodianor conservator of, or trustee or similar officer for, any Borrower or IDOTGuarantor or any substantial part of its property, or otherwise, or anystatement or compromise of any claim effected by Lender with any Borrower orIDOT Guarantor or any other claimant (a “**RescindedPayment**”), then each Other Borrower’s liability to Lender shallcontinue in full force and effect, or each Other Borrower’s liability to Lendershall be reinstated and renewed, as the case may be, with the same effect and tothe same extent as if the Rescinded Payment had not been received by Lender, notwithstandingthe cancellation or termination of any of the Loan Documents, and regardless ofwhether Lender contested the order requiring the return of such payment. Inaddition, each Other Borrower shall pay, or reimburse Lender for, all expenses(including all reasonable attorneys’ fees, court costs and relateddisbursements) incurred by Lender in the defense of any claim that a paymentreceived by Lender in respect of all or any part of the Obligations must be refunded.The provisions of this Section 12.10 shall survive the termination ofthe Borrower or IDOT Guarantor Loan Documents and any satisfaction anddischarge of any Borrower or IDOT Guarantor by virtue of any payment, courtorder or any federal or state law.

 

**Section12.11.****      MaximumLiability of Each Borrower.**

 

Notwithstandinganything contained in this Agreement or any of the Loan Documents to thecontrary, if the obligations of any Borrower or IDOT Guarantor under thisAgreement or any of the other Loan Documents or any Security Instrumentsgranted by any Borrower or IDOT Guarantor are determined to exceed thereasonably equivalent value received by such Borrower or IDOT Guarantor inexchange for such obligations or grant of such Security Instruments under anyFraudulent Transfer Law (as hereinafter defined), then such liability of suchBorrower or IDOT Guarantor shall be limited to a maximum aggregate amount equalto the largest amount that would not render its obligations under thisAgreement or all the Other Borrower Documents subject to avoidance as afraudulent transfer or conveyance under Section 548 of Title 11 of the UnitedStates Code or any applicable provisions of comparable state law (collectively,the “**Fraudulent Transfer Laws**”),in each case after giving effect to all other liabilities of such Borrower orIDOT Guarantor, contingent or otherwise, that are relevant under the FraudulentTransfer Laws (specifically excluding, however, any liabilities of suchBorrower or IDOT Guarantor in respect of Indebtedness to any Other Borrower orany other Person that is an Affiliate of the Other Borrower to the extent thatsuch Indebtedness would be discharged in an amount equal to the amount paid bysuch Borrower or IDOT Guarantor in respect of the

 

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Obligations)and after giving effect (as assets) to the value (as determined under theapplicable provisions of the Fraudulent Transfer Laws) of any rights tosubrogation, reimbursement, indemnification or contribution of such Borrower orIDOT Guarantor pursuant to Applicable Law or pursuant to the terms of anyagreement including the Contribution Agreement.

 

**Section12.12.****      LiabilityCumulative.**

 

The liabilityof each Borrower or IDOT Guarantor under this Article 12 is in additionto and shall be cumulative with all liabilities of such Borrower or IDOTGuarantor to Lender under this Agreement and all the other Loan Documents towhich such Borrower or IDOT Guarantor is a party or in respect of any Obligationsof any Other Borrower.

 

**ARTICLE 13**

**MISCELLANEOUS PROVISIONS**

 

**Section13.01.****      Counterparts.**

 

To facilitateexecution, this Agreement may be executed in any number of counterparts.  It shall not be necessary that the signaturesof, or on behalf of, each party, or that the signatures of all persons requiredto bind any party, appear on each counterpart, but it shall be sufficient thatthe signature of, or on behalf of, each party, appear on one (1) or morecounterparts. All counterparts shall collectively constitute a singleagreement. It shall not be necessary in making proof of this Agreement toproduce or account for more than the number of counterparts containing therespective signatures of, or on behalf of, all of the parties hereto.

 

**Section13.02.****      Amendments,Changes and Modifications.**

 

This Agreementmay be amended, changed, modified, altered or terminated only by writteninstrument or written instruments signed by all of the parties hereto.

 

**Section13.03.****      Paymentof Costs, Fees and Expenses.**

 

The applicableCollateral Pool Borrower shall pay, on demand, all reasonable third-party out-of-pocketfees, costs, charges or expenses (including the reasonable fees and expenses ofattorneys, accountants and other experts) incurred by Lender in connection with:

 

(a)           Any amendment, consent,review or waiver to or requested under this Agreement or any of the LoanDocuments (whether or not any such amendments, consents or waivers are enteredinto) for such Collateral Pool.

 

(b)           Defending orparticipating in any litigation arising from actions by third parties andbrought against or involving Lender with respect to (i) any Mortgaged Propertyin such Collateral Pool, (ii) any event, act, condition or circumstance inconnection with any Mortgaged Property in such Collateral Pool, or (iii) therelationship between Lender and such Borrower and Guarantor in connection withthis Agreement or any of the transactions contemplated by this Agreement.

 

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(c)           The administration orenforcement of, or preservation of rights or remedies under, this Agreement orany other Loan Documents or in connection with the foreclosure upon, sale of orother disposition of any Collateral granted pursuant to the Loan Documents.

 

The applicableCollateral Pool Borrower shall also pay, on demand, any transfer taxes, documentarytaxes, assessments or charges made by any Governmental Authority by reason of theexecution, delivery, filing, recordation, performance or enforcement of any ofthe Loan Documents or the Loans. However, such Borrower will not be obligatedto pay any franchise, excise, estate, inheritance, income, excess profits orsimilar tax on Lender. Any attorneys’ fees and expenses payable by suchBorrower pursuant to this Section 13.03 shall be recoverable separatelyfrom and in addition to any other amount included in such judgment, and such obligationis intended to be severable from the other provisions of this Agreement and tosurvive and not be merged into any such judgment. Any amounts payable byBorrower pursuant to this Section 13.03, with interest thereon if notpaid when due, shall become additional Indebtedness of such Borrower secured bythe Loan Documents evidencing the Loan secured by Borrower’s or IDOTGuarantor’s Mortgaged Property. Such amounts shall bear interest from the datesuch amounts are due until paid in full at the weighted average, as determinedby Lender, of the interest rates in effect from time to time for each Loanunless collection from such Borrower of interest at such rate would be contraryto Applicable Law, in which event such amounts shall bear interest at thehighest rate which may be collected from such Borrower under Applicable Law.The provisions of this Section 13.03 are cumulative with, and do not excludethe application and benefit to Lender of, any provision of any other LoanDocument relating to any of the matters covered by this Section 13.03.

 

**Section13.04.****      PaymentProcedure.**

 

All paymentsto be made to Lender pursuant to this Agreement or any of the Loan Documentsshall be made in lawful currency of the United States of America and inimmediately available funds by wire transfer to an account designated by Lenderbefore 1:00 p.m. (Eastern Standard Time or Eastern Daylight Time, asapplicable) on the date when due.

 

**Section13.05.****      Paymentson Business Days.**

 

In any case inwhich the date of payment to Lender or the expiration of any time period hereunderoccurs on a day which is not a Business Day, then, unless expressly otherwise provided,such payment or expiration of such time period need not occur on such date butmay be made on the next succeeding Business Day with the same force and effectas if made on the day of maturity or expiration of such period, except thatinterest shall continue to accrue for the period after such date to the nextBusiness Day.

 

**Section13.06.****      Choiceof Law; Consent to Jurisdiction; Waiver of Jury Trial.**

 

NOTWITHSTANDINGANYTHING IN THE NOTES, THE SECURITY DOCUMENTS OR ANY OF THE OTHER LOANDOCUMENTS TO THE CONTRARY, EACH OF THE TERMS AND PROVISIONS, AND RIGHTS ANDOBLIGATIONS OF BORROWER OR IDOT GUARANTOR UNDER THIS AGREEMENT AND THE NOTES,

 

67

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GUARANTORUNDER THE GUARANTY, AND BORROWER, IDOT GUARANTOR AND GUARANTOR UNDER THE OTHERLOAN DOCUMENTS, SHALL BE GOVERNED BY, INTERPRETED, CONSTRUED AND ENFORCEDPURSUANT TO AND IN ACCORDANCE WITH THE LAWS OF THE DISTRICT OF COLUMBIA(EXCLUDING THE LAW APPLICABLE TO CONFLICTS OR CHOICE OF LAW) EXCEPT TO THE EXTENTOF PROCEDURAL AND SUBSTANTIVE MATTERS RELATING ONLY TO (i)  THE CREATION, PERFECTION AND FORECLOSURE OFLIENS AND SECURITY INTERESTS, AND ENFORCEMENT OF THE RIGHTS AND REMEDIES,AGAINST THE MORTGAGED PROPERTIES, WHICH MATTERS SHALL BE GOVERNED BY THE LAWS OFTHE JURISDICTION IN WHICH THE MORTGAGED PROPERTY IS LOCATED, (ii)  THE PERFECTION, THE EFFECT OF PERFECTION ANDNON-PERFECTION AND FORECLOSURE OF SECURITY INTERESTS ON PERSONAL PROPERTY(OTHER THAN DEPOSIT ACCOUNTS), WHICH MATTERS SHALL BE GOVERNED BY THE LAWS OF THEJURISDICTION DETERMINED BY THE CHOICE OF LAW PROVISIONS OF THE UNIFORMCOMMERCIAL CODE IN EFFECT FOR THE JURISDICTION IN WHICH THE MORTGAGED PROPERTYIS LOCATED AND (iii) THE PERFECTION, THE EFFECT OF PERFECTION ANDNON-PERFECTION AND FORECLOSURE OF DEPOSIT ACCOUNTS, WHICH MATTERS SHALL BEGOVERNED BY THE LAWS OF THE JURISDICTION IN WHICH THE DEPOSIT ACCOUNT ISLOCATED. BORROWER, IDOT GUARANTOR AND GUARANTOR AGREE THAT ANY CONTROVERSYARISING UNDER OR IN RELATION TO THE NOTES, THE SECURITY DOCUMENTS (OTHER THANTHE SECURITY INSTRUMENTS) OR ANY OTHER LOAN DOCUMENT SHALL BE, EXCEPT ASOTHERWISE PROVIDED HEREIN, LITIGATED IN DISTRICT OF COLUMBIA. THE LOCAL ANDFEDERAL COURTS AND AUTHORITIES WITH JURISDICTION IN DISTRICT OF COLUMBIA SHALL,EXCEPT AS OTHERWISE PROVIDED HEREIN, HAVE JURISDICTION OVER ALL CONTROVERSIESWHICH MAY ARISE UNDER OR IN RELATION TO THE LOAN DOCUMENTS, INCLUDING THOSECONTROVERSIES RELATING TO THE EXECUTION, JURISDICTION, BREACH, ENFORCEMENT OR COMPLIANCEWITH THE NOTES, THE SECURITY DOCUMENTS (OTHER THAN THE SECURITY INSTRUMENTS) ORANY OTHER ISSUE ARISING UNDER, RELATING TO, OR IN CONNECTION WITH ANY OF THELOAN DOCUMENTS. BORROWER, IDOT GUARANTOR AND GUARANTOR IRREVOCABLY CONSENT TOSERVICE, JURISDICTION, AND VENUE OF SUCH COURTS FOR ANY LITIGATION ARISING FROMTHE NOTES, THE SECURITY DOCUMENTS OR ANY OF THE OTHER LOAN DOCUMENTS, ANDWAIVES ANY OTHER VENUE TO WHICH IT MIGHT BE ENTITLED BY VIRTUE OF DOMICILE,HABITUAL RESIDENCE OR OTHERWISE.  NOTHINGCONTAINED HEREIN, HOWEVER, SHALL PREVENT LENDER FROM BRINGING ANY SUIT, ACTIONOR PROCEEDING OR EXERCISING ANY RIGHTS AGAINST BORROWER, IDOT GUARANTOR ANDGUARANTOR AND AGAINST THE COLLATERAL IN ANY OTHER JURISDICTION IN WHICH ANYMORTGAGED PROPERTY IS LOCATED. INITIATING SUCH SUIT, ACTION OR PROCEEDING OR TAKINGSUCH ACTION IN ANY OTHER PERMITTED JURISDICTION SHALL IN NO EVENT CONSTITUTE AWAIVER OF THE AGREEMENT CONTAINED HEREIN THAT THE LAWS OF DISTRICT OF COLUMBIASHALL GOVERN THE RIGHTS AND OBLIGATIONS OF BORROWER, IDOT GUARANTOR AND GUARANTORAND LENDER AS PROVIDED HEREIN OR THE SUBMISSION HEREIN BY BORROWER,

 

68

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IDOT GUARANTORAND GUARANTOR TO PERSONAL JURISDICTION WITHIN THE DISTRICT OF COLUMBIA.BORROWER, IDOT GUARANTOR, GUARANTOR AND LENDER (I) COVENANT AND AGREE NOT TOELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING UNDER ANY OF THE LOANDOCUMENTS TRIABLE BY A JURY AND (II) WAIVE ANY RIGHT TO TRIAL BY JURY TO THE EXTENTTHAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST. THIS WAIVER IS INTENDED TOENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO AJURY TRIAL WOULD OTHERWISE ACCRUE. FURTHER, BORROWER, IDOT GUARANTOR ANDGUARANTOR HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF LENDER (INCLUDING,BUT NOT LIMITED TO, LENDER’S COUNSEL) HAS REPRESENTED, EXPRESSLY OR OTHERWISE,TO BORROWER, IDOT GUARANTOR OR GUARANTOR THAT LENDER WILL NOT SEEK TO ENFORCETHE PROVISIONS OF THIS SECTION. THE FOREGOING PROVISIONS WERE KNOWINGLY,WILLINGLY AND VOLUNTARILY AGREED TO BY BORROWER, IDOT GUARANTOR AND GUARANTORUPON CONSULTATION WITH INDEPENDENT LEGAL COUNSEL SELECTED BY BORROWER’S, IDOTGUARANTOR’S AND GUARANTOR’S FREE WILL.

 

**Section13.07.****      Severability.**

 

In the eventany provision of this Agreement or in any other Loan Document shall be heldinvalid, illegal or unenforceable in any jurisdiction, such provision will beseverable from the remainder hereof as to such jurisdiction and the validity,legality and enforceability of the remaining provisions will not in any way beaffected or impaired in any jurisdiction.

 

**Section13.08.****      Notices.**

 

(a)           Manner of GivingNotice. Each notice, direction, certificate or other communicationhereunder (in this Section 13.08 referred to collectively as “**notices**” and singly as a “**notice**”) which any party is required orpermitted to give to the other party pursuant to this Agreement shall be inwriting and shall be deemed to have been duly and sufficiently given if: 

 

(i)            personally deliveredwith proof of delivery thereof (any notice so delivered shall be deemed to havebeen received at the time so delivered);

 

(ii)           sent by Federal Express(or other similar reputable overnight courier) designating morning delivery(any notice so delivered shall be deemed to have been received on the BusinessDay it is delivered by the courier);

 

(iii)          sent by telecopier orfacsimile machine which automatically generates a transmission report thatstates the date and time of the transmission, the length of the documenttransmitted, and the telephone number of the recipient’s telecopier orfacsimile machine (to be confirmed with a copy thereof sent in accordance withparagraphs (i) or (ii) above within two (2) Business Days) (any notice sodelivered shall be deemed to have been received (A) on the date of transmission,if so transmitted before 5:00 p.m. (local time of the recipient) on a BusinessDay, or (B) on the next Business Day, if so transmitted on or after 5:00 p.m.(local time of the recipient) on a Business Day or if transmitted on a dayother than a Business Day);

 

69

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addressed to the parties as follows:

 
| As to each  Borrower | Archstone-Smith  Operating Trust |
|----------------------|----------------------------------|
| and IDOT  Guarantor: | 9200 E.  Panorama Circle         |
|                 | Suite 400                        |
|                 | Englewood,  Colorado 80112       |
|                 | Attention:                       | General  Counsel |
|                 | Telecopy:                        | (303)  708-6954 |
|                 | Email:                           | treif@archstonesmith.com |
|                 |                             |   |
| with a copy  to:     | Tishman  Speyer                  |
|                 | 45  Rockefeller Plaza            |
|                 | New York,  New York 10111        |
|                 | Attention:                       | General  Counsel |
|                 | Telecopy:                        | (212)  895-0353 |
|                 | Email:                           | mbenner@tishmanspeyer.com |
|                 |                             |   |
| And to:              | Schulte Roth  & Zabel        |
|                 | 919 Third  Avenue                |
|                 | New York,  New York 10022        |
|                 | Attention:                       | Andrew J.  Dady, Esq. |
|                 | Telecopy:                        | (212)  593-5955 |
|                 | Email:                           | Andrew.dady@srz.com |
|                 |                             |   |
| And to:              | Tishman  Speyer                  |
|                 | 45  Rockefeller Plaza            |
|                 | New York,  New York 10111        |
|                 | Attention:                       | Chief  Financial Officer |
|                 | Telecopy:                        | (212)  895-0314 |
|                 | Email:                           | jrosenth@tishmanspeyer.com |
|                 |                             |   |
| As to  Lender:       | Lehman  Brothers Holdings Inc.   |
|                 | 399 Park  Avenue                 |
|                 | New York,  New York 10022        |
|                 | Attention:                       | Robert  Ashmun |
|                 | Telecopy:                        | (646)  758-4376 |
|                 | Email:                           | rashmun@lehman.com |
|                 |                             |   |
| And to:              | Weil,  Gotshal & Manges LLP  |
|                 | 767 Fifth  Avenue                |
|                 | New York,  New York 10153        |
|                 | Attention:                       | W. Michael  Bond, Esq. |
|                 | Telecopy:                        | (212)  310-8007 |
|                 | Email:                           | Michael.bond@weil.com |
|                 |                             |   |
| provided  that after |                             |   |
| the Initial  Closing |                             |   |

 

70

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| Date, to:          | Wachovia  Multifamily Capital, Inc. |
|--------------------|-------------------------------------|
|               | 375 Park  Avenue                    |
|               | Mail Code NY  4060                  |
|               | New York,  New York 10152           |
|               | Attention:                          | David S.  Kaplan |
|               | Telecopy:                           | (212)  214-8461 |
|               |                                |   |
| As to Fannie  Mae: | Fannie Mae                          |
|               | 3900  Wisconsin Avenue, N.W.        |
|               | Washington,  D.C. 20016-2899        |
|               | Attention:                          | Vice  President for |
|               |                                | Multifamily  Asset Management |
|               | Telecopy  No.:                      | (301)  280-2064 |
|               |                                |   |
| with a copy  to:   | Venable LLP                         |
|               | 575 7th  Street, N.W.               |
|               | Washington,  D.C. 20004             |
|               | Attention:                          | Stephanie L.  DeLong, Esq. |
|               | Telecopy  No.:                      | (202)  344-8300 |

 

(b)           Change of NoticeAddress. Any party may, by notice given pursuant to this Section 13.08,change the person or persons and/or address or addresses, or designate an additionalperson or persons or an additional address or addresses, for its notices, butnotice of a change of address shall only be effective upon receipt. Each partyagrees that it shall not refuse or reject delivery of any notice givenhereunder, that it shall acknowledge, in writing, receipt of the same upon requestby the other party and that any notice rejected or refused by it shall be deemedfor all purposes of this Agreement to have been received by the rejecting partyon the date so refused or rejected, as conclusively established by the recordsof the U.S. Postal Service, the courier service or facsimile.

 

**Section13.09.****      FurtherAssurances and Corrective Instruments.**

 

(a)           Further Assurances.To the extent permitted by law, the parties hereto agree that they shall, fromtime to time, execute, acknowledge and deliver, or cause to be executed,acknowledged and delivered, such supplements hereto and such furtherinstruments as Lender, Borrower or IDOT Guarantor may reasonably request and asmay be required in the opinion of Lender or its counsel to effectuate theintention of or facilitate the performance of this Agreement or any LoanDocument.

 

(b)           FurtherDocumentation. Without limiting the generality of subsection (a), in theevent any further documentation or information is required by Lender to correctpatent mistakes in the Loan Documents, materials relating to the TitleInsurance Policies or the funding of the Loans, Borrower and IDOT Guarantorshall provide, or cause to be provided to Lender, at its cost and expense, suchdocumentation or information. Borrower and IDOT Guarantor shall execute anddeliver to Lender such documentation, including any amendments, corrections,

 

71

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deletions oradditions to the Notes, the Security Instruments or the other Loan Documents asis reasonably required by Lender.

 

**Section13.10.****      Termof this Agreement.**

 

This Agreementshall continue in effect until the Facility Termination Date.

 

**Section13.11.****      Assignments;Third-Party Rights.**

 

No Borrowershall assign this Agreement, or delegate any of its obligations hereunder, withoutthe prior written consent of Lender. Lender may assign its rights andobligations under this Agreement separately or together, without Borrower’sconsent, only to Fannie Mae or other entity if such assignment is made with theintent that such entity will further assign such rights and obligations toFannie Mae, but may not delegate its obligations under this Agreement unless itfirst receives Fannie Mae’s written approval. Upon assignment to Fannie Mae, FannieMae shall be permitted to further assign its rights and obligations under thisAgreement.

 

**Section13.12.****      Headings.**

 

Article andSection headings used herein are for convenience of reference only, are not partof this Agreement and are not to affect the construction of, or to be takeninto consideration in interpreting, this Agreement.

 

**Section13.13.****      GeneralInterpretive Principles.**

 

For purposesof this Agreement, except as otherwise expressly provided or unless the contextotherwise requires, (i) the terms defined in Appendix I and elsewhere inthis Agreement have the meanings assigned to them in this Agreement and includethe plural as well as the singular, and the use of any gender herein shall bedeemed to include the other genders; (ii) accounting terms not otherwise defined herein have the meanings assignedto them in accordance with GAAP; (iii) references herein to “Articles,”“Sections,” “subsections,” “paragraphs” and other subdivisions withoutreference to a document are to designated Articles, Sections, subsections,paragraphs and other subdivisions of this Agreement; (iv) a reference to a subsectionwithout further reference to a Section is a reference to such subsection ascontained in the same Section in which the reference appears, and this ruleshall also apply to paragraphs and other subdivisions; (v) a reference to anExhibit or a Schedule without a further reference to the document to which theExhibit or Schedule is attached is a reference to an Exhibit or Schedule to thisAgreement; (vi) the words “herein,” “hereof,” “hereunder” and other words ofsimilar import refer to this Agreement as a whole and not to any particularprovision; and (vii) the word “including” means “including, but not limitedto.”

 

**Section13.14.****      Interpretation.**

 

The partieshereto acknowledge that each party and their respective counsel have participatedin the drafting and revision of this Agreement and the Loan Documents.  Accordingly, the parties agree that any ruleof construction which disfavors the drafting party shall not apply in theinterpretation of this Agreement and the Loan Documents or any amendment orsupplement or exhibit hereto or thereto.

 

72

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**Section13.15.****      Standardsfor Decisions, Etc.**

 

Unless otherwiseprovided herein, if Lender’s approval is required for any matter hereunder,such approval may be granted or withheld in Lender’s sole and absolutediscretion.  Unless otherwise providedherein, if Lender’s designation, determination, selection, estimate, action ordecision is required, permitted or contemplated hereunder, such designation, determination,selection, estimate, action or decision shall be made in Lender’s sole andabsolute discretion.

 

**Section13.16.****      Decisionsin Writing.**

 

Any approval,designation, determination, selection, action or decision of Lender or Borrowermust be in writing to be effective.

 

**Section13.17.****      Approvalof Waivers.**

 

Unlessotherwise agreed by Lender, any modifications set forth in this Agreement andthe other Loan Documents which are modifications to or waivers from the termsand conditions applicable to similar loans made by Lender and sold to FannieMae shall remain in effect only for so long as such Borrower controlled byGuarantor, are parties to this Agreement and such Loans are subject to thisAgreement.

 

**Section13.18.****      USAPatriot Act.**

 

Lender herebynotifies each Borrower that pursuant to the requirements of the USA Patriot Act(Title III of Pub. L. 107-56 (signed into law October 26, 2001)), it isrequired to obtain, verify and record information that identifies eachBorrower, which information includes the name and address of each Borrower andother information that will allow such Lender to identify each Borrower inaccordance with such Act.

 

**Section13.19.****      AllAsset Filings.**

 

If Lenderbelieves that an “all-asset” collateral description, as contemplated by Section9-504(2) of the UCC, is appropriate as to any Collateral under any LoanDocument, the Lender is irrevocably authorized to use such a collateral description,whether in one or more separate filings or as part of the collateraldescription in a filing that particularly describes the Collateral.

 

**Section13.20.****      SpecialProvisions Regarding ASN Kendall Square LLC.**

 

The partiesacknowledge that, on or about September 20, 2007, ASN Worthington Place LLCmerged with and into ASN Kendall Square LLC, and that ASN Kendall Square LLC isthe surviving entity. The parties acknowledge and agree that any reference inany Loan Document to ASN Worthington Place LLC shall be deemed to be areference to ASN Kendall Square LLC and ASN Kendall Square LLC shall beresponsible for all of the obligations of such entity.

 

73

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**Section13.21.****      SpecialProvisions Regarding Payment of Interest on Imposition Deposits.**

 

Notwithstandinganything in the Loan Documents to the contrary, including but not limited toSection 7(b) of each Security Instrument, Lender shall be required to payBorrower any interest, earnings or profits on the Imposition Deposits at a rateper annum equal to the prevailing Federal Funds Target Rate less .25% and notthe Federal Funds Effective Rate, as otherwise set forth in the SecurityInstruments. “**Federal Funds Target Rate**”shall mean, for any day, the rate per annum announced by the Federal ReserveBoard as the “Federal Funds Target Rate.”

 

*[Remainder of page intentionally left blank.]*

 

74

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement asof the day and year first above written.

 
|   | **BORROWER:**                                                                                   |
|--------|-------------------------------------------------------------------------------------------------|
|   |                                                                                            |
|   | **Pool 1**                                                                                      |
|   | ** **                                                                                      |
|   | ARCHSTONE BEAR HILL BORROWER:                                                                   |
|   | ** **                                                                                      |
|   | **ASN BEAR HILL LLC**, a Delaware limited                                                       |
|   | liability company                                                                               |
|   |                                                                                            |
|   |                                                                                            |
|   | By:                                                                                             | /s/ Gary Kravetz |   |
|   | Name:                                                                                           | Gary Kravetz |   |
|   | Title:                                                                                          | Authorized Signatory |   |
|   |                                                                                            |
|   |                                                                                            |
|   | ARCHSTONE CUPERTINO BORROWER:                                                                   |
|   |                                                                                            |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH  CUPERTINO, L.L.C.**, a Delaware limited liability  company    |
|   |                                                                                            |
|   |                                                                                            |
|   | By:                                                                                             | /s/ Gary Kravetz |   |
|   | Name:                                                                                           | Gary Kravetz |   |
|   | Title:                                                                                          | Authorized Signatory |
|   |                                                                                            |
|   |                                                                                            |
|   | ARCHSTONE EMERALD PARK BORROWER:                                                                |
|   |                                                                                            |
|   | **tishman speyer archstone-smith  emerald park, l.l.c.**, a Delaware limited  liability company |
|   | ** **                                                                                      |
|   |                                                                                            |
|   | By:                                                                                             | /s/ Gary Kravetz |   |
|   | Name:                                                                                           | Gary Kravetz |   |
|   | Title:                                                                                          | Authorized Signatory |
|        |                                                                                                 |  |  |  |

 

S-1

----

 
|   | ARCHSTONE HACIENDA BORROWER:                                                                  |
|--------|-----------------------------------------------------------------------------------------------|
|   |                                                                                          |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   HACIENDA, L.L.C.**, a Delaware limited liability   company |
|   |                                                                                          |
|   |                                                                                          |
|   | By:                                                                                           | /s/ Gary Kravetz |   |
|   | Name:                                                                                         | Gary Kravetz |   |
|   | Title:                                                                                        | Authorized Signatory |

 

 
|   | ARCHSTONE MOUNTAIN VIEW BORROWER:                                                                         |
|--------|-----------------------------------------------------------------------------------------------------------|
|   |                                                                                                      |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   MOUNTAIN VIEW,  L.L.C.**,  a Delaware limited   liability company |
|   |                                                                                                      |
|   |                                                                                                      |
|   | By:                                                                                                       | /s/ Gary Kravetz |   |
|   | Name:                                                                                                     | Gary Kravetz |   |
|   | Title:                                                                                                    | Authorized Signatory |

 

 
|   | ARCHSTONE QUARRY HILLS BORROWER:                                 |
|--------|------------------------------------------------------------------|
|   |                                                             |
|   | **ASN QUARRY HILLS LLC**, a Delaware limited   liability company |
|   |                                                             |
|   |                                                             |
|   | By:                                                              | /s/ Gary Kravetz |   |
|   | Name:                                                            | Gary Kravetz |   |
|   | Title:                                                           | Authorized Signatory |

 

 
|   | ARCHSTONE REDWOOD SHORES   BORROWER:                                                                |
|--------|-----------------------------------------------------------------------------------------------------|
|   |                                                                                                |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   REDWOOD SHORES, L.L.C.**, a Delaware limited   liability company |
|   |                                                                                                |
|   |                                                                                                |
|   | By:                                                                                                 | /s/ Gary Kravetz |   |
|   | Name:                                                                                               | Gary Kravetz |   |
|   | Title:                                                                                              | Authorized Signatory |

 

S-2

----

 
|   | ARCHSTONE WATERTOWN SQUARE   BORROWER:                        |
|--------|---------------------------------------------------------------|
|   |                                                          |
|   | **ASN WATERTOWN LLC**, a Delaware limited   liability company |
|   |                                                          |
|   |                                                          |
|   | By:                                                           | /s/ Gary Kravetz |   |
|   | Name:                                                         | Gary Kravetz |   |
|   | Title:                                                        | Authorized Signatory |
|   |                                                          |
|   |                                                          |
|   | **Pool 2**                                                    |

 
|   | ARCHSTONE LA JOLLA COLONY   BORROWER:                               |
|--------|---------------------------------------------------------------------|
|   |                                                                |
|   | **ASN LA JOLLA COLONY LLC**, a Delaware   limited liability company |
|   |                                                                |
|   |                                                                |
|   | By:                                                                 | /s/ Gary Kravetz |   |
|   | Name:                                                               | Gary Kravetz |   |
|   | Title:                                                              | Authorized Signatory |

 

 
|   | ARCHSTONE LOS FELIZ BORROWER:                                 |
|--------|---------------------------------------------------------------|
|   |                                                          |
|   | **ASN LOS FELIZ LLC**, a Delaware limited   liability company |
|   |                                                          |
|   |                                                          |
|   | By:                                                           | /s/ Gary Kravetz |   |
|   | Name:                                                         | Gary Kravetz |   |
|   | Title:                                                        | Authorized Signatory |

 

S-3

----

 
|   | ARCHSTONE OLD TOWN PASADENA   BORROWER:                                                                |
|--------|--------------------------------------------------------------------------------------------------------|
|   |                                                                                                   |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   OLD TOWN PASADENA, L.L.C.**, a Delaware limited   liability company |
|   |                                                                                                   |
|   |                                                                                                   |
|   | By:                                                                                                    | /s/ Gary Kravetz |   |
|   | Name:                                                                                                  | Gary Kravetz |   |
|   | Title:                                                                                                 | Authorized Signatory |

 

 
|   | ARCHSTONE PLAYA DEL REY BORROWER:                                                                  |
|--------|----------------------------------------------------------------------------------------------------|
|   |                                                                                               |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   PLAYA DEL REY, L.L.C.**, a Delaware limited   liability company |
|   |                                                                                               |
|   |                                                                                               |
|   | By:                                                                                                | /s/ Gary Kravetz |   |
|   | Name:                                                                                              | Gary Kravetz |   |
|   | Title:                                                                                             | Authorized Signatory |

 

 
|   | ARCHSTONE REDMOND LAKEVIEW   BORROWER:                               |
|--------|----------------------------------------------------------------------|
|   |                                                                 |
|   | **ASN REDMOND LAKEVIEW LLC**, a Delaware   limited liability company |
|   |                                                                 |
|   |                                                                 |
|   | By:                                                                  | /s/ Gary Kravetz |   |
|   | Name:                                                                | Gary Kravetz |   |
|   | Title:                                                               | Authorized Signatory |

 

S-4

----

 
|   | ARCHSTONE SOUTH MARKET BORROWER:                                                                  |
|--------|---------------------------------------------------------------------------------------------------|
|   |                                                                                              |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   SOUTH MARKET, L.L.C.**, a Delaware limited   liability company |
|   |                                                                                              |
|   |                                                                                              |
|   | By:                                                                                               | /s/ Gary Kravetz |   |
|   | Name:                                                                                             | Gary Kravetz |   |
|   | Title:                                                                                            | Authorized Signatory |

 

 
|   | ARCHSTONE THOUSAND OAKS BORROWER:                                                                  |
|--------|----------------------------------------------------------------------------------------------------|
|   |                                                                                               |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   THOUSAND OAKS, L.L.C.**, a Delaware limited   liability company |
|   |                                                                                               |
|   |                                                                                               |
|   | By:                                                                                                | /s/ Gary Kravetz |   |
|   | Name:                                                                                              | Gary Kravetz |   |
|   | Title:                                                                                             | Authorized Signatory |

 

 
|   | ARCHSTONE WALNUT RIDGE BORROWER:                                 |
|--------|------------------------------------------------------------------|
|   |                                                             |
|   | **ASN WALNUT RIDGE LLC,** a Delaware limited   liability company |
|   |                                                             |
|   |                                                             |
|   | By:                                                              | /s/ Gary Kravetz |   |
|   | Name:                                                            | Gary Kravetz |   |
|   | Title:                                                           | Authorized Signatory |

 

 
|   | ARCHSTONE KENDALL SQUARE   BORROWER:                                  |
|--------|-----------------------------------------------------------------------|
|   |                                                                  |
|   | **ASN WORTHINGTON PLACE LLC**, a   Delaware limited liability company |
|   |                                                                  |
|   |                                                                  |
|   | By:                                                                   | /s/ Gary Kravetz |   |
|   | Name:                                                                 | Gary Kravetz |   |
|   | Title:                                                                | Authorized Signatory |

 

 

S-5

----

 
|   | ARCHSTONE SAN MATEO BORROWER:                                 |
|--------|---------------------------------------------------------------|
|   |                                                          |
|   | **ASN SAN MATEO LLC**, a Delaware limited   liability company |
|   |                                                          |
|   |                                                          |
|   | By:                                                           | /s/ Gary Kravetz |   |
|   | Name:                                                         | Gary Kravetz |   |
|   | Title:                                                        | Authorized Signatory |

 

 
|   | CARMARGUE BORROWER:                                    |
|--------|--------------------------------------------------------|
|   |                                                   |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH**                     |
|   | **CARMARGUE I, L.L.C.,** a Delaware limited  liability |
|   | company                                                |
|   |                                                   |
|   |                                                   |
|   | By:                                                    | /s/ Gary Kravetz |   |
|   | Name:                                                  | Gary Kravetz |   |
|   | Title:                                                 | Authorized Signatory |

 
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   CARMARGUE II, L.L.C.**, a Delaware limited   liability company |
|--------|---------------------------------------------------------------------------------------------------|
|   |                                                                                              |
|   |                                                                                              |
|   | By:                                                                                               | /s/ Gary Kravetz |   |
|   | Name:                                                                                             | Gary Kravetz |   |
|   | Title:                                                                                            | Authorized Signatory |

 
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   CARMARGUE III, L.L.C.**, a Delaware limited   liability company |
|--------|----------------------------------------------------------------------------------------------------|
|   |                                                                                               |
|   |                                                                                               |
|   | By:                                                                                                | /s/ Gary Kravetz |   |
|   | Name:                                                                                              | Gary Kravetz |   |
|   | Title:                                                                                             | Authorized Signatory |

 

S-6

----

 
|   | **Pool 3**                                                                        |
|--------|-----------------------------------------------------------------------------------|
|   |                                                                              |
|   | 2201 WILSON BOULEVARD BORROWER:                                                   |
|   |                                                                              |
|   | **SMITH PROPERTY HOLDINGS WILSON   L.L.C.**, a Delaware limited liability company |
|   |                                                                              |
|   |                                                                              |
|   | By:                                                                               | /s/ Gary Kravetz |   |
|   | Name:                                                                             | Gary Kravetz |   |
|   | Title:                                                                            | Authorized Signatory |

 

 
|   | ARCHSTONE DEL MAR STATION   BORROWER:                                                                |
|--------|------------------------------------------------------------------------------------------------------|
|   |                                                                                                 |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   DEL MAR STATION, L.L.C.**, a Delaware limited   liability company |
|   |                                                                                                 |
|   |                                                                                                 |
|   | By:                                                                                                  | /s/ Gary Kravetz |   |
|   | Name:                                                                                                | Gary Kravetz |   |
|   | Title:                                                                                               | Authorized Signatory |

 

 
|   | ARCHSTONE SANTA MONICA BORROWER:                                |
|--------|-----------------------------------------------------------------|
|   |                                                            |
|   | **ASN SANTA MONICA LLC**, a Delaware limited  liability company |
|   |                                                            |
|   |                                                            |
|   | By:                                                             | /s/ Gary Kravetz |   |
|   | Name:                                                           | Gary Kravetz |   |
|   | Title:                                                          | Authorized Signatory |

 

S-7

----

 
|   | ARCHSTONE SANTA MONICA ON MAIN   BORROWER:                                                                |
|--------|-----------------------------------------------------------------------------------------------------------|
|   |                                                                                                      |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   SANTA MONICA ON MAIN, L.L.C.**, a   Delaware limited liability company |
|   |                                                                                                      |
|   |                                                                                                      |
|   | By:                                                                                                       | /s/ Gary Kravetz |   |
|   | Name:                                                                                                     | Gary Kravetz |   |
|   | Title:                                                                                                    | Authorized Signatory |

 

 
|   | ARCHSTONE WESTSIDE BORROWER:                                                                 |
|--------|----------------------------------------------------------------------------------------------|
|   |                                                                                         |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   WESTSIDE, L.L.C.**, a Delaware limited liability  company |
|   |                                                                                         |
|   |                                                                                         |
|   | By:                                                                                          | /s/ Gary Kravetz |   |
|   | Name:                                                                                        | Gary Kravetz |   |
|   | Title:                                                                                       | Authorized Signatory |

 
|   | BALLSTON PLACE BORROWER:                                                                    |
|--------|---------------------------------------------------------------------------------------------|
|   |                                                                                        |
|   | **SMITH PROPERTY HOLDINGS BALLSTON   PLACE L.L.C.**, a Delaware limited liability   company |
|   |                                                                                        |
|   |                                                                                        |
|   | By:                                                                                         | /s/ Gary Kravetz |   |
|   | Name:                                                                                       | Gary Kravetz |   |
|   | Title:                                                                                      | Authorized Signatory |

 

S-8

----

 
|   | GALLERY AT ROSSLYN BORROWER:                                                                            |
|--------|---------------------------------------------------------------------------------------------------------|
|   |                                                                                                    |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   GALLERY AT ROSSLYN, L.L.C.**, a Delaware   limited liability company |
|   |                                                                                                    |
|   |                                                                                                    |
|   | By:                                                                                                     | /s/ Gary Kravetz |   |
|   | Name:                                                                                                   | Gary Kravetz |   |
|   | Title:                                                                                                  | Authorized Signatory |

 

 
|   | PARC VISTA BORROWER:                                                                    |
|--------|-----------------------------------------------------------------------------------------|
|   |                                                                                    |
|   | **SMITH PROPERTY HOLDINGS PARC   VISTA L.L.C.**, a Delaware limited liability   company |
|   |                                                                                    |
|   |                                                                                    |
|   | By:                                                                                     | /s/ Gary Kravetz |   |
|   | Name:                                                                                   | Gary Kravetz |   |
|   | Title:                                                                                  | Authorized Signatory |

 

 
|   | WATER PARK TOWERS BORROWER:                                                                    |
|--------|------------------------------------------------------------------------------------------------|
|   |                                                                                           |
|   | **SMITH PROPERTY HOLDINGS WATER   PARK TOWERS L.L.C.**, a Delaware limited   liability company |
|   |                                                                                           |
|   |                                                                                           |
|   | By:                                                                                            | /s/ Gary Kravetz |   |
|   | Name:                                                                                          | Gary Kravetz |   |
|   | Title:                                                                                         | Authorized Signatory |

 

 
|   | ARCHSTONE SANTA CLARA BORROWER:                                 |
|--------|-----------------------------------------------------------------|
|   |                                                            |
|   | **ASN SANTA CLARA LLC**, a Delaware limited   liability company |
|   |                                                            |
|   |                                                            |
|   | By:                                                             | /s/ Gary Kravetz |   |
|   | Name:                                                           | Gary Kravetz |   |
|   | Title:                                                          | Authorized Signatory |

 

S-9

----

 
|   | ARCHSTONE OAK CREEK BORROWER:                                                                    |
|--------|--------------------------------------------------------------------------------------------------|
|   |                                                                                             |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   OAK CREEK I, L.L.C.**, a Delaware limited   liability company |
|   |                                                                                             |
|   |                                                                                             |
|   | By:                                                                                              | /s/ Gary Kravetz |   |
|   | Name:                                                                                            | Gary Kravetz |   |
|   | Title:                                                                                           | Authorized Signatory |

 

 
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   OAK CREEK II, L.L.C.**, a Delaware limited   liability company |
|--------|---------------------------------------------------------------------------------------------------|
|   |                                                                                              |
|   |                                                                                              |
|   | By:                                                                                               | /s/ Gary Kravetz |   |
|   | Name:                                                                                             | Gary Kravetz |   |
|   | Title:                                                                                            | Authorized Signatory |

 

 
|   | ARCHSTONE HOBOKEN BORROWER:                                   |
|--------|---------------------------------------------------------------|
|   |                                                          |
|   | **ASN HOBOKEN I LLC**, a Delaware limited   liability company |
|   |                                                          |
|   |                                                          |
|   | By:                                                           | /s/ Gary Kravetz |   |
|   | Name:                                                         | Gary Kravetz |   |
|   | Title:                                                        | Authorized Signatory |

 

 
|   | **ASN HOBOKEN II LLC**, a Delaware limited   liability company |
|--------|----------------------------------------------------------------|
|   |                                                           |
|   |                                                           |
|   | By:                                                            | /s/ Gary Kravetz |   |
|   | Name:                                                          | Gary Kravetz |   |
|   | Title:                                                         | Authorized Signatory |

 

S-10

----

 
|   | ARCHSTONE STUDIO CITY BORROWER:                                 |
|--------|-----------------------------------------------------------------|
|   |                                                            |
|   | **ASN STUDIO CITY LLC**, a Delaware limited   liability company |
|   |                                                            |
|   |                                                            |
|   | By:                                                             | /s/ Gary Kravetz |   |
|   | Name:                                                           | Gary Kravetz |   |
|   | Title:                                                          | Authorized Signatory |

 

 
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   STUDIO CITY III-A, L.L.C.**, a Delaware limited   liability company |
|--------|--------------------------------------------------------------------------------------------------------|
|   |                                                                                                   |
|   |                                                                                                   |
|   | By:                                                                                                    | /s/ Gary Kravetz |   |
|   | Name:                                                                                                  | Gary Kravetz |   |
|   | Title:                                                                                                 | Authorized Signatory |

 
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   STUDIO CITY III-B, L.L.C.**, a Delaware limited   liability company |
|--------|--------------------------------------------------------------------------------------------------------|
|   |                                                                                                   |
|   |                                                                                                   |
|   | By:                                                                                                    | /s/ Gary Kravetz |   |
|   | Name:                                                                                                  | Gary Kravetz |   |
|   | Title:                                                                                                 | Authorized Signatory |

 

 
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   STUDIO CITY III-C, L.L.C.**, a Delaware limited   liability company |
|--------|--------------------------------------------------------------------------------------------------------|
|   |                                                                                                   |
|   |                                                                                                   |
|   | By:                                                                                                    | /s/ Gary Kravetz |   |
|   | Name:                                                                                                  | Gary Kravetz |   |
|   | Title:                                                                                                 | Authorized Signatory |

 

S-11

----

 
|   | CONNECTICUT HEIGHTS BORROWER:                                                 |
|--------|-------------------------------------------------------------------------------|
|   |                                                                          |
|   | **SMITH PROPERTY HOLDINGS SIX (D.C.)   L.P.**, a Delaware limited partnership |
|   | ** **                                                                    |
|   | By:                                                                           | Smith Six, Inc., a Delaware corporation, its |
|   | ** **                                                                    | Managing General Partner |
|   | ** **                                                                    |
|   | ** **                                                                    | By: | /s/ Gary Kravetz |   |
|   | ** **                                                                    | Name: | Gary Kravetz |   |
|   | ** **                                                                    | Title: | Authorized Signatory | ** ** |
|        |                                                                               |  |  |  |  |  |

 

 
|   | PARK CONNECTICUT BORROWER:                                                                    |
|--------|-----------------------------------------------------------------------------------------------|
|   |                                                                                          |
|   | **SMITH PROPERTY HOLDINGS 4411   CONNECTICUT L.L.C.**, a Delaware limited   liability company |
|   | ** **                                                                                    |
|   | By:                                                                                           | Archstone-Smith Operating Trust, a                |
|   | ** **                                                                                    | Maryland real estate investment trust, |
|   | ** **                                                                                    | Managing Member |
|   | ** **                                                                                    |
|   | ** **                                                                                    | By: | /s/ Gary Kravetz |   |
|   | ** **                                                                                    | Name: | Gary Kravetz |   |
|   | ** **                                                                                    | Title: | Authorized Signatory | ** ** |
|        |                                                                                               |  |  |  |  |  |

 

 
|   | **Pool 4**                                                         |
|--------|--------------------------------------------------------------------|
|   |                                                               |
|   | CAMBRIDGE PARK PLACE BORROWER:                                     |
|   |                                                               |
|   | **ASN CAMBRIDGE PARK LLC**, a Delaware   limited liability company |
|   |                                                               |
|   |                                                               |
|   | By:                                                                | /s/ Gary Kravetz |   |
|   | Name:                                                              | Gary Kravetz |   |
|   | Title:                                                             | Authorized Signatory |

 

S-12

----

 
|   | ARCHSTONE RESTON LANDING   BORROWER:                                                        |
|--------|---------------------------------------------------------------------------------------------|
|   |                                                                                        |
|   | **SMITH PROPERTY HOLDINGS RESTON   LANDING L.L.C.**, a Delaware limited liability   company |
|   |                                                                                        |
|   |                                                                                        |
|   | By:                                                                                         | /s/ Gary Kravetz |   |
|   | Name:                                                                                       | Gary Kravetz |   |
|   | Title:                                                                                      | Authorized Signatory |

 

 
|   | ARLINGTON COURTHOUSE PLACE   BORROWER:                          |
|--------|-----------------------------------------------------------------|
|   |                                                            |
|   | **COURTHOUSE HILL LLC**, a Delaware limited   liability company |
|   |                                                            |
|   |                                                            |
|   | By:                                                             | /s/ Gary Kravetz |   |
|   | Name:                                                           | Gary Kravetz |   |
|   | Title:                                                          | Authorized Signatory |

 
|   | ARCHSTONE JEFFERSON SIMI VALLEY   BORROWER:                                                      |
|--------|--------------------------------------------------------------------------------------------------|
|   |                                                                                             |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   SIMI VALLEY, L.L.C.**, a Delaware limited   liability company |
|   |                                                                                             |
|   |                                                                                             |
|   | By:                                                                                              | /s/ Gary Kravetz |   |
|   | Name:                                                                                            | Gary Kravetz |   |
|   | Title:                                                                                           | Authorized Signatory |

 

S-13

----

 
|   | ARCHSTONE TYSONS CORNER BORROWER:                                                                  |
|--------|----------------------------------------------------------------------------------------------------|
|   |                                                                                               |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   TYSONS CORNER, L.L.C.**, a Delaware limited   liability company |
|   |                                                                                               |
|   |                                                                                               |
|   | By:                                                                                                | /s/ Gary Kravetz |   |
|   | Name:                                                                                              | Gary Kravetz |   |
|   | Title:                                                                                             | Authorized Signatory |

 

 
|   | ARCHSTONE CRONIN’S LANDING   BORROWER:                                                                |
|--------|------------------------------------------------------------------------------------------------------------|
|   |                                                                                                       |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   CRONIN’S LANDING, L.L.C.**, a Delaware limited   liability company |
|   |                                                                                                       |
|   |                                                                                                       |
|   | By:                                                                                                        | /s/ Gary Kravetz |   |
|   | Name:                                                                                                      | Gary Kravetz |   |
|   | Title:                                                                                                     | Authorized Signatory |

 

 
|   | ARLINGTON COURTHOUSE PLAZA   BORROWER:                                                                          |
|--------|-----------------------------------------------------------------------------------------------------------------|
|   |                                                                                                            |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   ARLINGTON COURTHOUSE PLAZA, L.L.C.**,   a Delaware limited liability company |
|   |                                                                                                            |
|   |                                                                                                            |
|   | By:                                                                                                             | /s/ Gary Kravetz |   |
|   | Name:                                                                                                           | Gary Kravetz |   |
|   | Title:                                                                                                          | Authorized Signatory |

 

S-14

----

 
|   | ARCHSTONE MARINA DEL REY BORROWER:                                                                    |
|--------|-------------------------------------------------------------------------------------------------------|
|   |                                                                                                  |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   MARINA DEL REY-I, L.L.C.**, a Delaware   limited liability company |
|   |                                                                                                  |
|   |                                                                                                  |
|   | By:                                                                                                   | /s/ Gary Kravetz |   |
|   | Name:                                                                                                 | Gary Kravetz |   |
|   | Title:                                                                                                | Authorized Signatory |

 

 
|   | **TISHMAN SPEYER ARCHSTONE-SMITH   MARINA DEL REY-II, L.L.C.**, a Delaware   limited liability company |
|--------|--------------------------------------------------------------------------------------------------------|
|   |                                                                                                   |
|   |                                                                                                   |
|   | By:                                                                                                    | /s/ Gary Kravetz |   |
|   | Name:                                                                                                  | Gary Kravetz |   |
|   | Title:                                                                                                 | Authorized Signatory |

 

 
|   | ALBAN TOWERS BORROWER:                                                                     |
|--------|--------------------------------------------------------------------------------------------|
|   |                                                                                       |
|   | **SMITH PROPERTY HOLDINGS ALBAN   TOWERS, L.L.C.**, a Delaware limited liability   company |
|   | ** **                                                                                 |
|   | By:                                                                                        | Archstone-Smith Operating Trust, a |
|   | ** **                                                                                 | Maryland real estate investment trust, |
|   | ** **                                                                                 | Managing Member |
|   | ** **                                                                                 |
|   | ** **                                                                                 | By: | /s/ Gary Kravetz |   |
|   | ** **                                                                                 | Name: | Gary Kravetz |   |
|   | ** **                                                                                 | Title: | Authorized Signatory | ** ** |
|        |                                                                                            |  |  |  |  |  |

 

S-15

----

 
|   |   | **ALBAN TOWERS, L.L.C.**, a District of Columbia |
|--------|--------|--------------------------------------------------|
|   |   | limited liability company                        |
|   |   |                                             |
|   |   |                                             |
|   |   | By:                                              | Smith Property Holdings Alban Towers, |
|   |   |                                             | L.L.C., a Delaware limited liability |
|   |   |                                             | company, its Sole Member |
|   |   |                                             |   |
|   |   |                                             | By: | Archstone-Smith Operating Trust, a |
|   |   |                                             |   | Maryland real estate investment |
|   |   |                                             |   | trust, Managing Member |
|   |   |                                             |   |   |
|   |   |                                             |   |   |
|   |   |                                             |   | By | /s/ Gary Kravetz |
|   |   |                                             |   | Name: | Gary Kravetz |
|   |   |                                             |   | Title: | Authorized Signatory |
|   |   |                                             |   |   |
|   |   |                                             |   |   |
|   |   | CALVERT WOODLEY BORROWER:                        |
|   |   |                                             |
|   |   | CLEVELAND HOUSE BORROWER:                        |
|   |   |                                             |
|   |   | 2501 PORTER STREET BORROWER:                     |
|   |   |                                             |
|   |   | **SMITH PROPERTY HOLDINGS THREE (DC)**           |
|   |   | **L.P.**, a Delaware limited partnership         |
|   |   | ** **                                       |
|   |   | By:                                              | Smith Property Holdings Three L.P., a |
|   |   |                                             | Delaware limited partnership, its Managing |
|   |   |                                             | General Partner |
|   |   |                                             |   |   |
|   |   |                                             | By: | Smith Three, Inc., a Delaware |
|   |   |                                             |   | corporation, its Managing General |
|   |   |                                             |   | Partner |
|   |   |                                             |   |   |
|   |   |                                             |   | By | /s/ Gary Kravetz |
|   |   |                                             |   | Name: | Gary Kravetz |
|   |   |                                             |   | Title: | Authorized Signatory |
|        |        |                                                  |  |  |  |  |

 

S-16

----

 
|   | ARCHSTONE COLUMBIA CROSSING                         |
|--------|-----------------------------------------------------|
|   | BORROWER:                                           |
|   |                                                |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH**                  |
|   | **COLUMBIA CROSSING, L.L.C.**, a Delaware           |
|   | limited liability company                           |
|   |                                                |
|   |                                                |
|   | By:                                                 | /s/ Gary Kravetz |   |
|   | Name:                                               | Gary Kravetz |   |
|   | Title:                                              | Authorized Signatory |   |
|   |                                                |
|   |                                                |
|   | **Pool 5**                                          |
|   |                                                |
|   | ARCHSTONE GLENDALE BORROWER:                        |
|   |                                                |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH**                  |
|   | **GLENDALE, L.L.C.**, a Delaware limited  liability |
|   | company                                             |
|   |                                                |
|   |                                                |
|   | By:                                                 | /s/ Gary Kravetz |   |
|   | Name:                                               | Gary Kravetz |   |
|   | Title:                                              | Authorized Signatory |
|   |                                                |
|   |                                                |
|   | ARCHSTONE PASADENA BORROWER:                        |
|   |                                                |
|   | **ASN PASADENA LLC**, a Delaware limited            |
|   | liability company                                   |
|   |                                                |
|   | By:                                                 | /s/ Gary Kravetz |   |
|   | Name:                                               | Gary Kravetz |   |
|   | Title:                                              | Authorized Signatory |
|        |                                                     |  |  |  |

 

S-17

----

 
|   | ARCHSTONE THOUSAND OAKS PLAZA                                                                  |
|--------|------------------------------------------------------------------------------------------------|
|   | BORROWER:                                                                                      |
|   |                                                                                           |
|   | **ASN THOUSAND OAKS PLAZA LLC**, a                                                             |
|   | Delaware limited liability company                                                             |
|   |                                                                                           |
|   |                                                                                           |
|   | By:                                                                                            | /s/ Gary Kravetz |   |
|   | Name:                                                                                          | Gary Kravetz |   |
|   | Title:                                                                                         | Authorized Signatory |
|   |                                                                                           |
|   |                                                                                           |
|   | ARCHSTONE WALNUT CREEK BORROWER:                                                               |
|   |                                                                                           |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH**                                                             |
|   | **WALNUT CREEK, L.L.C.**, a Delaware limited                                                   |
|   | liability company                                                                              |
|   |                                                                                           |
|   |                                                                                           |
|   | By:                                                                                            | /s/ Gary Kravetz |   |
|   | Name:                                                                                          | Gary Kravetz |   |
|   | Title:                                                                                         | Authorized Signatory |
|   |                                                                                           |
|   |                                                                                           |
|   | ARCHSTONE WILLOW GLEN BORROWER:                                                                |
|   |                                                                                           |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH  WILLOW GLEN, L.L.C.**, a Delaware limited  liability company |
|   | ** **                                                                                     |
|   |                                                                                           |
|   | By:                                                                                            | /s/ Gary Kravetz |   |
|   | Name:                                                                                          | Gary Kravetz |   |
|   | Title:                                                                                         | Authorized Signatory |
|   |                                                                                           |
|   |                                                                                           |
|   | ARCHSTONE HARBORSIDE BORROWER:                                                                 |
|   |                                                                                           |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH  HARBORSIDE, L.L.C.**, a Delaware limited  liability company  |
|   | ** **                                                                                     |
|   |                                                                                           |
|   | By:                                                                                            | /s/ Gary Kravetz |   |
|   | Name:                                                                                          | Gary Kravetz |   |
|   | Title:                                                                                         | Authorized Signatory |

 

S-18

----

 
|   | **Pool 6**                                                                                               |                 |
|--------|----------------------------------------------------------------------------------------------------------|----------------------|
|   |                                                                                                     |                 |
|   | ARCHSTONE EMERY BAY BORROWER:                                                                            |                 |
|   |                                                                                                     |                 |
|   | **ASN EMERYVILLE LLC**, a Delaware limited  liability company                                            |                 |
|   |                                                                                                     |                 |
|   | By:                                                                                                      | /s/ Gary Kravetz     |   |
|   | Name:                                                                                                    | Gary Kravetz         |   |
|   | Title:                                                                                                   | Authorized Signatory |
|   |                                                                                                     |                 |
|   |                                                                                                     |                 |
|   | OAKWOOD ARLINGTON BORROWER:                                                                              |                 |
|   |                                                                                                     |                 |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH**

**OAKWOOD ARLINGTON, L.L.C.**, a Delaware  limited liability company |                 |
|   |                                                                                                     |                 |
|   |                                                                                                     |                 |
|   | By:                                                                                                      | /s/ Gary Kravetz     |   |
|   | Name:                                                                                                    | Gary Kravetz         |   |
|   | Title:                                                                                                   | Authorized Signatory |
|   |                                                                                                     |                 |
|   |                                                                                                     |                 |
|   | OAKWOOD BELLEVUE BORROWER:                                                                               |                 |
|   |                                                                                                     |                 |
|   | **ASN BELLEVUE LLC**, a Delaware limited  liability company                                              |                 |
|   |                                                                                                     |                 |
|   |                                                                                                     |                 |
|   | By:                                                                                                      | /s/ Gary Kravetz     |   |
|   | Name:                                                                                                    | Gary Kravetz         |   |
|   | Title:                                                                                                   | Authorized Signatory |
|   |                                                                                                     |                 |
|   |                                                                                                     |                 |
|   | OAKWOOD BOSTON****BORROWER:                                                                              |                 |
|   |                                                                                                     |                 |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH  OAKWOOD BOSTON, L.L.C.**, a Delaware  limited liability company        |                 |
|   |                                                                                                     |                 |
|   | By:                                                                                                      | /s/ Gary Kravetz     |   |
|   | Name:                                                                                                    | Gary Kravetz         |   |
|   | Title:                                                                                                   | Authorized Signatory |
|        |                                                                                                          |                      |  |  |

 

S-19

----

 
|   | OAKWOOD CHICAGO BORROWER:                                        |
|--------|------------------------------------------------------------------|
|   |                                                             |   |
|   | **ASN CHICAGO LLC**, a Delaware limited  liability  company      |
|   | ** **                                                       |
|   |                                                             |   |
|   | By:                                                              | /s/ Gary Kravetz |   |
|   | Name:                                                            | Gary Kravetz |   |
|   | Title:                                                           | Authorized Signatory |
|   |                                                             |   |
|   |                                                             |   |
|   | OAKWOOD LONG BEACH MARINA  BORROWER:                             |
|   |                                                             |   |
|   | **ASN LONG BEACH LLC**, a Delaware limited  liability company    |
|   |                                                             |   |
|   |                                                             |   |
|   | By:                                                              | /s/ Gary Kravetz |   |
|   | Name:                                                            | Gary Kravetz |   |
|   | Title:                                                           | Authorized Signatory |
|   |                                                             |   |
|   |                                                             |   |
|   | OAKWOOD MARINA DEL REY BORROWER:                                 |
|   |                                                             |   |
|   | **ASN MARINA LLC**, a Delaware limited liability  company        |
|   | ** **                                                       |
|   |                                                             |   |
|   | By:                                                              | /s/ Gary Kravetz |   |
|   | Name:                                                            | Gary Kravetz |   |
|   | Title:                                                           | Authorized Signatory |
|   |                                                             |   |
|   |                                                             |   |
|   | OAKWOOD MOUNTAIN VIEW BORROWER:                                  |
|   |                                                             |   |
|   | **ASN MOUNTAIN VIEW LLC**, a Delaware  limited liability company |
|   | ** **                                                       |
|   |                                                             |   |
|   | By:                                                              | /s/ Gary Kravetz |   |
|   | Name:                                                            | Gary Kravetz |   |
|   | Title:                                                           | Authorized Signatory |
|        |                                                                  |  |  |  |

 

S-20

----

 
|   | OAKWOOD PHILADELPHIA BORROWER:                                                                           |
|--------|----------------------------------------------------------------------------------------------------------|
|   |                                                                                                     |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH  OAKWOOD PHILADELPHIA, L.L.C.**, a  Delaware limited liability company  |
|   |                                                                                                     |
|   |                                                                                                     |
|   | By:                                                                                                      | /s/ Gary Kravetz |   |
|   | Name:                                                                                                    | Gary Kravetz |   |
|   | Title:                                                                                                   | Authorized Signatory |
|   |                                                                                                     |
|   |                                                                                                     |
|   | OAKWOOD SAN FRANCISCO BORROWER:                                                                          |
|   |                                                                                                     |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH  OAKWOOD SAN FRANCISCO, L.L.C.**, a  Delaware limited liability company |
|   |                                                                                                     |
|   |                                                                                                     |
|   | By:                                                                                                      | /s/ Gary Kravetz |   |
|   | Name:                                                                                                    | Gary Kravetz |   |
|   | Title:                                                                                                   | Authorized Signatory |
|   |                                                                                                     |
|   |                                                                                                     |
|   | OAKWOOD SAN JOSE SOUTH BORROWER:                                                                         |
|   |                                                                                                     |
|   | **ASN SAN JOSE LLC**, a Delaware limited  liability  company                                             |
|   |                                                                                                     |
|   |                                                                                                     |
|   | By:                                                                                                      | /s/ Gary Kravetz |   |
|   | Name:                                                                                                    | Gary Kravetz |   |
|   | Title:                                                                                                   | Authorized Signatory |
|   |                                                                                                     |
|   |                                                                                                     |
|   | OAKWOOD SEATTLE BORROWER:                                                                                |
|   |                                                                                                     |
|   | **ASN SEATTLE LLC**, a Delaware limited  liability  company                                              |
|   | ** **                                                                                               |
|   |                                                                                                     |
|   | By:                                                                                                      | /s/ Gary Kravetz |   |
|   | Name:                                                                                                    | Gary Kravetz |   |
|   | Title:                                                                                                   | Authorized Signatory |

 

S-21

----

 
|   | OAKWOOD TOLUCA HILLS BORROWER:                                                                          |
|--------|---------------------------------------------------------------------------------------------------------|
|   |                                                                                                    |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH  OAKWOOD TOLUCA HILLS, L.L.C.**, a  Delaware limited liability company |
|   |                                                                                                    |
|   |                                                                                                    |
|   | By:                                                                                                     | /s/ Gary Kravetz |   |
|   | Name:                                                                                                   | Gary Kravetz |   |
|   | Title:                                                                                                  | Authorized Signatory |
|   |                                                                                                    |
|   |                                                                                                    |
|   | OAKWOOD WOODLAND HILLS BORROWER:                                                                        |
|   |                                                                                                    |
|   | **ASN WOODLAND HILLS EAST LLC**, a  Delaware limited liability company                                  |
|   |                                                                                                    |
|   |                                                                                                    |
|   | By:                                                                                                     | /s/ Gary Kravetz |   |
|   | Name:                                                                                                   | Gary Kravetz |   |
|   | Title:                                                                                                  | Authorized Signatory |
|   |                                                                                                    |   |
|   |                                                                                                    |
|   | ARCHSTONE FAIRCHASE BORROWER:                                                                           |
|   |                                                                                                    |
|   | **ASN FAIRCHASE LLC**, a Delaware limited  liability company                                            |
|   | ** **                                                                                              |
|   |                                                                                                    |
|   | By:                                                                                                     | /s/ Gary Kravetz |   |
|   | Name:                                                                                                   | Gary Kravetz |   |
|   | Title:                                                                                                  | Authorized Signatory |
|   |                                                                                                    |
|   |                                                                                                    |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH  FAIRCHASE II, L.L.C.**, a Delaware limited  liability company         |
|   |                                                                                                    |
|   | By:                                                                                                     | /s/ Gary Kravetz |   |
|   | Name:                                                                                                   | Gary Kravetz |   |
|   | Title:                                                                                                  | Authorized Signatory |

 

S-22

----

 
|       | PACIFIC STRANDS (ARCHSTONE VENTURA)  BORROWER:                                               |
|------------|----------------------------------------------------------------------------------------------|
|       |                                                                                         |
|       | **ASN VENTURA LLC**, a Delaware limited  liability  company                                  |
| ** ** |                                                                                         |
|       | By:                                                                                          | /s/ Gary Kravetz |   |
|       | Name:                                                                                        | Gary Kravetz |   |
|       | Title:                                                                                       | Authorized Signatory |
|       |                                                                                         |
|       |                                                                                         |
|       | **ASN VENTURA TWO LLC**, a Delaware limited  liability company                               |
|       | ** **                                                                                   |
|       |                                                                                         |
|       | By:                                                                                          | /s/ Gary Kravetz |   |
|       | Name:                                                                                        | Gary Kravetz |   |
|       | Title:                                                                                       | Authorized Signatory |
|       |                                                                                         |
|       |                                                                                         |
|       | **ASN VENTURA FOUR LLC**, a Delaware limited  liability company                              |
|       | ** **                                                                                   |
|       |                                                                                         |
|       | By:                                                                                          | /s/ Gary Kravetz |   |
|       | Name:                                                                                        | Gary Kravetz |   |
|       | Title:                                                                                       | Authorized Signatory |
|       | ** **                                                                                   |
|       | **Pool 7**                                                                                   |
|       |                                                                                         |
|       | ARCHSTONE 2000 COMMONWEALTH  BORROWER:                                                       |
|       |                                                                                         |
|       | **SMITH PROPERTY HOLDINGS 2000  COMMONWEALTH L.L.C.**, a Delaware limited  liability company |
|       |                                                                                         |
|       | By:                                                                                          | /s/ Gary Kravetz |   |
|       | Name:                                                                                        | Gary Kravetz |   |
|       | Title:                                                                                       | Authorized Signatory |

 

S-23

----

 
|       | LONG BEACH HARBOR (BELLAMAR)                                            |
|------------|-------------------------------------------------------------------------|
|       | BORROWER:                                                               |
| ** ** |                                                                    |
|       | **ASN LONG BEACH HARBOR LLC**, a Delaware  limited liability company    |
|       |                                                                    |
|       |                                                                    |
|       | By:                                                                     | /s/ Gary Kravetz |   |
|       | Name:                                                                   | Gary Kravetz |   |
|       | Title:                                                                  | Authorized Signatory |
|       |                                                                    |
|       |                                                                    |
|       | ARCHSTONE MONUMENT PARK  BORROWER:                                      |
|       |                                                                    |
|       | **ASN MONUMENT PARK LLC**, a Delaware  limited liability company        |
|       | ** **                                                              |
|       |                                                                    |
|       | By:                                                                     | /s/ Gary Kravetz |   |
|       | Name:                                                                   | Gary Kravetz |   |
|       | Title:                                                                  | Authorized Signatory |
|       |                                                                    |
|       |                                                                    |
|       | ARCHSTONE QUINCY BORROWER:                                              |
|       |                                                                    |
|       | **ASN QUINCY LLC**, a Delaware limited liability    company             |
|       |                                                                    |
|       |                                                                    |
|       | By:                                                                     | /s/ Gary Kravetz |   |
|       | Name:                                                                   | Gary Kravetz |   |
|       | Title:                                                                  | Authorized Signatory |
|       |                                                                    |
|       |                                                                    |
|       | ARCHSTONE WALNUT CREEK STATION  BORROWER:                               |
|       |                                                                    |
|       | **ASN WALNUT CREEK STATION LLC**, a  Delaware limited liability company |
|       | ** **                                                              |
|       |                                                                    |
|       | By:                                                                     | /s/ Gary Kravetz |   |
|       | Name:                                                                   | Gary Kravetz |   |
|       | Title:                                                                  | Authorized Signatory |

 

S-24

----

 
|   | COLONY APARTMENTS (AT WESTON  VILLAGE) BORROWER:                                                  |
|--------|---------------------------------------------------------------------------------------------------|
|   |                                                                                              |
|   | **ASN VENTURA COLONY LLC**, a Delaware  limited liability company                                 |
|   |                                                                                              |
|   |                                                                                              |
|   | By:                                                                                               | /s/ Gary Kravetz |   |
|   | Name:                                                                                             | Gary Kravetz |   |
|   | Title:                                                                                            | Authorized Signatory |
|   |                                                                                              |
|   |                                                                                              |
|   | CRYSTAL PLAZA BORROWER:                                                                           |
|   |                                                                                              |
|   | **SMITH PROPERTY HOLDINGS CRYSTAL  PLAZA L.L.C.**, a Delaware limited liability  company          |
|   | ** **                                                                                        |
|   |                                                                                              |
|   | By:                                                                                               | /s/ Gary Kravetz |   |
|   | Name:                                                                                             | Gary Kravetz |   |
|   | Title:                                                                                            | Authorized Signatory |
|   |                                                                                              |
|   |                                                                                              |
|   | LINCOLN TOWER BORROWER:                                                                           |
|   |                                                                                              |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH  LINCOLN TOWERS, L.L.C.**, a Delaware limited  liability company |
|   |                                                                                              |
|   |                                                                                              |
|   | By:                                                                                               | /s/ Gary Kravetz |   |
|   | Name:                                                                                             | Gary Kravetz |   |
|   | Title:                                                                                            | Authorized Signatory |
|   |                                                                                              |
|   |                                                                                              |
|   | THE BUCHANAN BORROWER:                                                                            |
|   |                                                                                              |
|   | **SMITH PROPERTY HOLDINGS BUCHANAN  HOUSE L.L.C.**, a Delaware limited liability  company         |
|   |                                                                                              |
|   |                                                                                              |
|   | By:                                                                                               | /s/ Gary Kravetz |   |
|   | Name:                                                                                             | Gary Kravetz |   |
|   | Title:                                                                                            | Authorized Signatory |

 

S-25

----

 
|   | CHARTER OAK BORROWER:                                                                            |
|--------|--------------------------------------------------------------------------------------------------|
|   |                                                                                             |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH  CHARTER OAK, L.L.C.**, a Delaware limited  liability company   |
|   |                                                                                             |
|   | By:                                                                                              | /s/ Gary Kravetz |   |
|   | Name:                                                                                            | Gary Kravetz |   |
|   | Title:                                                                                           | Authorized Signatory |
|   |                                                                                             |
|   |                                                                                             |
|   | ARCHSTONE FREMONT CENTER  BORROWER:                                                              |
|   |                                                                                             |
|   | **ASN FREMONT LLC**, a Delaware limited  liability company                                       |
|   | ** **                                                                                       |
|   |                                                                                             |
|   | By:                                                                                              | /s/ Gary Kravetz |   |
|   | Name:                                                                                            | Gary Kravetz |   |
|   | Title:                                                                                           | Authorized Signatory |
|   |                                                                                             |
|   |                                                                                             |
|   | GATEWAY PLACE BORROWER:                                                                          |
|   |                                                                                             |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH  GATEWAY PLACE, L.L.C.**, a Delaware limited  liability company |
|   |                                                                                             |
|   |                                                                                             |
|   | By:                                                                                              | /s/ Gary Kravetz |   |
|   | Name:                                                                                            | Gary Kravetz |   |
|   | Title:                                                                                           | Authorized Signatory |
|   |                                                                                             |
|   |                                                                                             |
|   | CRYSTAL PLACE BORROWER:                                                                          |
|   |                                                                                             |
|   | **TISHMAN SPEYER ARCHSTONE-SMITH  CRYSTAL PLACE, L.L.C.**, a Delaware limited  liability company |
|   |                                                                                             |
|   | By:                                                                                              | /s/ Gary Kravetz |   |
|   | Name:                                                                                            | Gary Kravetz |   |
|   | Title:                                                                                           | Authorized Signatory |

 

S-26

----

 
|   |   | THE CONSULATE BORROWER:                                                               |
|--------|--------|---------------------------------------------------------------------------------------|
|   |   |                                                                                  |   |
|   |   | **SMITH PROPERTY HOLDINGS  CONSULATE, L.L.C.**, a Delaware limited liability  company |
|   |   |                                                                                  |   |
|   |   |                                                                                  |   |
|   |   | By:                                                                                   | Archstone-Smith Operating Trust, a |
|   |   |                                                                                  | Maryland real estate investment trust, |
|   |   |                                                                                  | Managing Member |
|   |   |                                                                                  |   |
|   |   |                                                                                  | By | /s/ Gary Kravetz |
|   |   |                                                                                  | Name: | Gary Kravetz |
|   |   |                                                                                  | Title: | Authorized Signatory |
|   |   |                                                                                  |   |
|   |   |                                                                                  |   |
|   |   | THE STATESMAN BORROWER:                                                               |
|   |   |                                                                                  |   |
|   |   | CORCORAN HOUSE BORROWER:                                                              |
|   |   |                                                                                  |   |
|   |   | **SMITH PROPERTY HOLDINGS ONE (D.C.)  L.P.**, a Delaware limited partnership          |
|   |   |                                                                                  |   |
|   |   | By:                                                                                   | Archstone-Smith Operating Trust, a |
|   |   |                                                                                  | Maryland real estate investment trust, |
|   |   |                                                                                  | Managing General Partner |
|   |   |                                                                                  |   |
|   |   |                                                                                  |   |
|   |   |                                                                                  | By | /s/ Gary Kravetz |
|   |   |                                                                                  | Name: | Gary Kravetz |
|   |   |                                                                                  | Title: | Authorized Signatory |
|        |        |                                                                                       |  |  |  |  |  |

 

S-27

----

 
|   |   | GALLERY AT VIRGINIA SQUARE  BORROWER:                                                                             |
|--------|--------|-------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                              |   |
|   |   | **TISHMAN SPEYER ARCHSTONE-SMITH  GALLERY AT VIRGINIA SQUARE I, L.L.C.**, a  Delaware limited liability company   |
|   |   |                                                                                                              |   |
|   |   |                                                                                                              |   |
|   |   | By:                                                                                                               | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                                             | Gary Kravetz |   |
|   |   | Title:                                                                                                            | Authorized Signatory |
|   |   |                                                                                                              |   |
|   |   |                                                                                                              |   |
|   |   | **TISHMAN SPEYER ARCHSTONE-SMITH  GALLERY AT VIRGINIA SQUARE II, L.L.C.**,  a Delaware limited liability company  |
|   |   |                                                                                                              |   |
|   |   |                                                                                                              |   |
|   |   | By:                                                                                                               | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                                             | Gary Kravetz |   |
|   |   | Title:                                                                                                            | Authorized Signatory |
|   |   |                                                                                                              |   |
|   |   |                                                                                                              |   |
|   |   | **TISHMAN SPEYER ARCHSTONE-SMITH  GALLERY AT VIRGINIA SQUARE III,  L.L.C.**, a Delaware limited liability company |
|   |   |                                                                                                              |   |
|   |   |                                                                                                              |   |
|   |   | By:                                                                                                               | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                                             | Gary Kravetz |   |
|   |   | Title:                                                                                                            | Authorized Signatory |
|   |   |                                                                                                              |   |
|   |   |                                                                                                              |   |
|   |   | **Pool 8**                                                                                                        |
|   |   |                                                                                                              |   |
|   |   | APARTMENTS AT SUNSET BORROWER:                                                                                    |
|   |   |                                                                                                              |   |
|   |   | **TISHMAN SPEYER ARCHSTONE-SMITH  SUNSET, L.L.C.**, a Delaware limited liability  company                         |
|   |   |                                                                                                              |   |
|   |   |                                                                                                              |   |
|   |   | By:                                                                                                               | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                                             | Gary Kravetz |   |
|   |   | Title:                                                                                                            | Authorized Signatory |
|        |        |                                                                                                                   |  |  |  |  |

 

S-28

----

 
|   |   | ARCHSTONE CEDAR RIVER BORROWER:                                                                         |
|--------|--------|---------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                    |   |
|   |   | **TISHMAN SPEYER ARCHSTONE-SMITH  CEDAR RIVER, L.L.C.**, a Delaware limited  liability company          |
|   |   |                                                                                                    |   |
|   |   |                                                                                                    |   |
|   |   | By:                                                                                                     | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                                   | Gary Kravetz |   |
|   |   | Title:                                                                                                  | Authorized Signatory |
|   |   |                                                                                                    |   |
|   |   |                                                                                                    |   |
|   |   | ARCHSTONE DULLES BORROWER:                                                                              |
|   |   |                                                                                                    |   |
|   |   | **ASN DULLES LLC**, a Delaware limited liability  company                                               |
|   |   | ** **                                                                                              |
|   |   | ** **                                                                                              |
|   |   | By:                                                                                                     | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                                   | Gary Kravetz |   |
|   |   | Title:                                                                                                  | Authorized Signatory |
|   |   |                                                                                                    |   |
|   |   |                                                                                                    |   |
|   |   | ARCHSTONE SIERRA DEL ORO BORROWER:                                                                      |
|   |   |                                                                                                    |   |
|   |   | **TISHMAN SPEYER ARCHSTONE-SMITH  SIERRA DEL ORO, L.L.C.**, a Delaware limited  liability company       |
|   |   |                                                                                                    |   |
|   |   |                                                                                                    |   |
|   |   | By:                                                                                                     | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                                   | Gary Kravetz |   |
|   |   | Title:                                                                                                  | Authorized Signatory |
|   |   |                                                                                                    |   |
|   |   |                                                                                                    |   |
|   |   | THE MEADOWS AT RUSSETT BORROWER:                                                                        |
|   |   |                                                                                                    |   |
|   |   | **TISHMAN SPEYER ARCHSTONE-SMITH  MEADOWS AT RUSSETT I, L.L.C.**, a Delaware  limited liability company |
|   |   |                                                                                                    |   |
|   |   |                                                                                                    |   |
|   |   | By:                                                                                                     | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                                   | Gary Kravetz |   |
|   |   | Title:                                                                                                  | Authorized Signatory |

 

S-29

----

 
|   |   | **TISHMAN SPEYER ARCHSTONE-SMITH  MEADOWS AT RUSSETT (Borrower)** a  Delaware limited liability company |
|--------|--------|--------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                         |   |
|   |   |                                                                                                         |   |
|   |   | By:                                                                                                          | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                                        | Gary Kravetz |   |
|   |   | Title:                                                                                                       | Authorized Signatory |
|   |   |                                                                                                         |   |
|   |   |                                                                                                         |   |
|   |   | **Pool 9**                                                                                                   |
|   |   |                                                                                                         |   |
|   |   | POINSETTIA RIDGE BORROWER:                                                                                   |
|   |   |                                                                                                         |   |
|   |   | **ASN ENCINITAS LLC**, a Delaware limited  liability company                                                 |
|   |   |                                                                                                         |   |
|   |   |                                                                                                         |   |
|   |   | By:                                                                                                          | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                                        | Gary Kravetz |   |
|   |   | Title:                                                                                                       | Authorized Signatory |
|   |   |                                                                                                         |   |
|   |   |                                                                                                         |   |
|   |   | ARCHSTONE MURRAY HILL BORROWER:                                                                              |
|   |   |                                                                                                         |   |
|   |   | **ASN MURRAY HILL LLC**, a Delaware limited  liability company                                               |
|   |   |                                                                                                         |   |
|   |   |                                                                                                         |   |
|   |   | By:                                                                                                          | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                                        | Gary Kravetz |   |
|   |   | Title:                                                                                                       | Authorized Signatory |
|   |   |                                                                                                         |   |
|   |   |                                                                                                         |   |
|   |   | CRYSTAL SQUARE BORROWER:                                                                                     |
|   |   |                                                                                                         |   |
|   |   | **TISHMAN SPEYER ARCHSTONE-SMITH  CRYSTAL SQUARE, L.L.C.**, a Delaware limited  liability company            |
|   |   |                                                                                                         |   |
|   |   |                                                                                                         |   |
|   |   | By:                                                                                                          | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                                        | Gary Kravetz |   |
|   |   | Title:                                                                                                       | Authorized Signatory |

 

S-30

----

 
|       |   | THE ALBEMARLE BORROWER:                                                       |
|------------|--------|-------------------------------------------------------------------------------|
|       |   |                                                                          |   |
|       |   | **SMITH PROPERTY HOLDINGS FIVE (D.C.)  L.P.**, a Delaware limited partnership |
|       |   |                                                                          |   |
|       |   | By:                                                                           | Archstone-Smith Operating Trust, a |
|       |   |                                                                          | Maryland real estate investment trust, |
|       |   |                                                                          | Managing General Partner |
|       |   |                                                                          |   |
|       |   |                                                                          | By: | /s/ Gary Kravetz |   |
|       |   |                                                                          | Name: | Gary Kravetz |   |
|       |   |                                                                          | Title: | Authorized Signatory |   |
|       |   |                                                                          |   |
|       |   |                                                                          |   |
|       |   | TUNLAW GARDENS BORROWER:                                                      |
|       |   |                                                                          |   |
|       |   | VAN NESS SOUTH BORROWER:                                                      |
|       |   |                                                                          |   |
|       |   | TUNLAW PARK BORROWER:                                                         |
|       |   |                                                                          |   |
| ** ** |   |                                                                          |   |
|       |   | **SMITH PROPERTY HOLDINGS VAN NESS  L.P.**, a Delaware limited partnership    |
|       |   |                                                                          |   |
|       |   | By:                                                                           | Archstone-Smith Operating Trust, a |
|       |   |                                                                          | Maryland real estate investment trust, |
|       |   |                                                                          | Managing General Partner |
|       |   |                                                                          |   |
|       |   |                                                                          |   |
|       |   |                                                                          | By: | /s/ Gary Kravetz |   |
|       |   |                                                                          | Name: | Gary Kravetz |   |
|       |   |                                                                          | Title: | Authorized Signatory |   |
|       |   |                                                                          |   |
|       |   |                                                                          |   |
|       |   | KEY WEST BORROWER:                                                            |
|       |   |                                                                          |   |
|       |   | **ASN KEY WEST LLC**, a Delaware limited  liability company                   |
|       |   |                                                                          |   |
|       |   |                                                                          |   |
|       |   | By:                                                                           | /s/ Gary Kravetz |   |
|       |   | Name:                                                                         | Gary Kravetz |   |
|       |   | Title:                                                                        | Authorized Signatory |
|            |        |                                                                               |  |  |  |  |  |  |

 

S-31

----

 
|   |   | THE WESTMONT BORROWER:                                                                                            |
|--------|--------|-------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                              |   |
|   |   | **ASN WESTMONT LLC**, a Delaware limited  liability company                                                       |
|   |   |                                                                                                              |   |
|   |   |                                                                                                              |   |
|   |   | By:                                                                                                               | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                                             | Gary Kravetz |   |
|   |   | Title:                                                                                                            | Authorized Signatory |
|   |   |                                                                                                              |   |
|   |   |                                                                                                              |   |
|   |   | ARCHSTONE NEWPORT VILLAGE  BORROWER:                                                                              |
|   |   |                                                                                                              |   |
|   |   | **TISHMAN SPEYER ARCHSTONE-SMITH  NEWPORT VILLAGE I & II, L.L.C.**, a  Delaware limited liability company     |
|   |   | ** **                                                                                                        |
|   |   |                                                                                                              |   |
|   |   | By:                                                                                                               | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                                             | Gary Kravetz |   |
|   |   | Title:                                                                                                            | Authorized Signatory |
|   |   |                                                                                                              |   |
|   |   |                                                                                                              |   |
|   |   | **TISHMAN SPEYER ARCHSTONE-SMITH  NEWPORT VILLAGE III, L.L.C.**, a Delaware  limited liability company            |
|   |   |                                                                                                              |   |
|   |   |                                                                                                              |   |
|   |   | By:                                                                                                               | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                                             | Gary Kravetz |   |
|   |   | Title:                                                                                                            | Authorized Signatory |
|   |   |                                                                                                              |   |
|   |   |                                                                                                              |   |
|   |   | CRYSTAL TOWER AND LOFTS 590  BORROWER:                                                                            |
|   |   |                                                                                                              |   |
|   |   | **TISHMAN SPEYER ARCHSTONE-SMITH  CRYSTAL TOWERS & LOFTS 590, L.L.C.**, a  Delaware limited liability company |
|   |   |                                                                                                              |   |
|   |   |                                                                                                              |   |
|   |   | By:                                                                                                               | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                                             | Gary Kravetz |   |
|   |   | Title:                                                                                                            | Authorized Signatory |

 

S-32

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|   |   | CRYSTAL HOUSES BORROWER:                                                                      |
|--------|--------|-----------------------------------------------------------------------------------------------|
|   |   |                                                                                          |
|   |   | **SMITH PROPERTY HOLDINGS CRYSTAL  HOUSES L.L.C.**, a Delaware limited liability  company     |
|   |   |                                                                                          |   |
|   |   |                                                                                          |   |
|   |   | By:                                                                                           | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                         | Gary Kravetz |   |
|   |   | Title:                                                                                        | Authorized Signatory |
|   |   |                                                                                          |   |
|   |   |                                                                                          |   |
|   |   | THE BENNINGTON BORROWER:                                                                      |
|   |   |                                                                                          |   |
|   |   | **TISHMAN SPEYER ARCHSTONE-SMITH  BENNINGTON, L.L.C.,** a Delaware limited  liability company |
|   |   |                                                                                          |   |
|   |   |                                                                                          |   |
|   |   | By:                                                                                           | /s/ Gary Kravetz |   |
|   |   | Name:                                                                                         | Gary Kravetz |   |
|   |   | Title:                                                                                        | Authorized Signatory |

 

S-33

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|   |   | **IDOT  GUARANTOR**:                                                        |
|--------|--------|-----------------------------------------------------------------------------|
|   |   |                                                                        |   |
|   |   | **ASN  SUNSET, L.L.C.** a Delaware limited liability  company               |
|   |   |                                                                        |   |
|   |   | By:                                                                         | /s/ Bradley Turk |   |
|   |   | Name:                                                                       | Bradley Turk |   |
|   |   | Title:                                                                      | Authorized Signatory |   |
|   |   |                                                                        |   |
|   |   |                                                                        |   |
|   |   | **ASN  MEADOWS AT RUSSET I, L.L.C.**a  Delaware limited liability company   |
|   |   |                                                                        |   |
|   |   |                                                                        |   |
|   |   | By:                                                                         | /s/ Bradley Turk |   |
|   |   | Name:                                                                       | Bradley Turk |   |
|   |   | Title:                                                                      | Authorized Signatory |   |
|   |   |                                                                        |   |
|   |   |                                                                        |   |
|   |   | **ASN  MEADOWS AT RUSSET II, L.L.C.** a  Delaware limited liability company |
|   |   |                                                                        |   |
|   |   |                                                                        |   |
|   |   | By:                                                                         | /s/ Bradley Turk |   |
|   |   | Name:                                                                       | Bradley Turk |   |
|   |   | Title:                                                                      | Authorized Signatory |   |

 

S-34

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**Schedule I**

 

**BORROWERS**

 

ASN Bear HillLLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Cupertino, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Emerald Park, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Hacienda, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Mountain View, L.L.C., a Delaware limited liability company

 

ASN QuarryHills LLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Redwood Shores, L.L.C., a Delaware limited liability company

 

ASN WatertownLLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Playa del Rey, L.L.C., a Delaware limited liability company

 

ASN La JollaColony LLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Old Town Pasadena, L.L.C., a Delaware limited liability company

 

ASN WalnutRidge LLC, a Delaware limited liability company

 

ASN Los FelizLLC, a Delaware limited liability company

 

ASN San MateoLLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith South Market, L.L.C., a Delaware limited liability company

 

ASN KendallSquare LLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Camargue I, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Camargue II, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Camargue III, L.L.C., a Delaware limited liability company

 

ASN RedmondLakeview LLC, a Delaware limited liability company

 

Smith PropertyHoldings Wilson L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Del Mar Station, L.L.C., a Delaware limited liability company

 

ASN SantaMonica LLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Santa Monica on Main, L.L.C., a Delaware limited liabilitycompany

 

Tishman SpeyerArchstone-Smith Westside, L.L.C., a Delaware limited liability company

 

Smith PropertyHoldings Ballston Place L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Gallery at Rosslyn, L.L.C., a Delaware limited liabilitycompany

 

S-35

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Smith PropertyHoldings Parc Vista L.L.C., a Delaware limited liability company

 

Smith PropertyHoldings Water Park Towers L.L.C., a Delaware limited liability company

 

ASN SantaClara LLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Oak Creek-I, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Oak Creek-II, L.L.C., a Delaware limited liability company

 

ASN Hoboken ILLC, a Delaware limited liability company

 

ASN Hoboken IILLC, a Delaware limited liability company

 

ASN StudioCity LLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Studio City III-A, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Studio City III-B, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Studio City III-C, L.L.C., a Delaware limited liability company

 

Smith PropertyHoldings Six (D.C.) L.P., a Delaware limited partnership

 

Smith PropertyHoldings 4411 Connecticut L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Marina del Rey-I, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Marina del Rey-II, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Simi Valley, L.L.C., a Delaware limited liability company

 

Smith PropertyHoldings Three (D.C.) L.P., a Delaware limited partnership

 

Smith PropertyHoldings Alban Towers, L.L.C., a Delaware limited liability company

 

Alban Towers,L.L.C., a District of Columbia limited liability company

 

Tishman SpeyerArchstone-Smith Cronin’s Landing, L.L.C., a Delaware limited liability company

 

ASNCambridgePark LLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Columbia Crossing, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Tysons Corner, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Arlington Courthouse Plaza, L.L.C., a Delaware limitedliability company

 

CourthouseHill LLC, a Delaware limited liability company

 

Smith PropertyHoldings Reston Landing L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Walnut Creek, L.L.C., a Delaware limited liability company

 

S-36

----

 

Tishman SpeyerArchstone-Smith Harborside, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Willow Glen, L.L.C., a Delaware limited liability company

 

ASN PasadenaLLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Glendale, L.L.C., a Delaware limited liability company

 

ASN ThousandOaks Plaza LLC, a Delaware limited liability company

 

ASN San JoseLLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Oakwood San Francisco, L.L.C., a Delaware limited liabilitycompany

 

ASN Long BeachLLC, a Delaware limited liability company

 

ASN MarinaLLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Oakwood Toluca Hills, L.L.C.

 

ASN WoodlandHills East LLC, a Delaware limited liability company

 

ASN MountainView LLC, a Delaware limited liability company

 

ASN EmeryvilleLLC, a Delaware limited liability company

 

ASN VenturaLLC, a Delaware limited liability company

 

ASN VenturaTwo LLC, a Delaware limited liability company

 

ASN VenturaFour LLC, a Delaware limited liability company

 

ASN ChicagoLLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Oakwood Boston, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Oakwood Philadelphia, L.L.C., a Delaware limited liabilitycompany

 

Tishman SpeyerArchstone-Smith Oakwood Arlington, L.L.C., a Delaware limited liability company

 

ASN FairchaseLLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Fairchase II, L.L.C., a Delaware limited liability company

 

ASN BellevueLLC, a Delaware limited liability company

 

ASN SeattleLLC, a Delaware limited liability company

 

ASN WalnutCreek Station LLC, a Delaware limited liability company

 

ASN FremontLLC, a Delaware limited liability company

 

ASN VenturaColony LLC, a Delaware limited liability company

 

ASN Long BeachHarbor 1031 LLC, a Delaware limited liability company

 

Smith PropertyHoldings One (D.C.) L.P., a Delaware limited partnership

 

Smith PropertyHoldings Consulate L.L.C., a Delaware limited liability company

 

S-37

----

 

ASN QuincyLLC, a Delaware limited liability company

 

Smith PropertyHoldings 2000 Commonwealth L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Crystal Place, L.L.C., a Delaware limited liability company

 

Smith PropertyHoldings Crystal Plaza L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Gateway Place, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Charter Oak, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Lincoln Towers, L.L.C., a Delaware limited liability company

 

Smith PropertyHoldings Buchanan House L.L.C., a Delaware limited liability company

 

ASN MonumentPark LLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Gallery at Virginia Square I, L.L.C., a Delaware limitedliability company

 

Tishman SpeyerArchstone-Smith Gallery at Virginia Square II, L.L.C., a Delaware limitedliability company

 

Tishman SpeyerArchstone-Smith Gallery at Virginia Square III, L.L.C., a Delaware limitedliability company

 

Tishman SpeyerArchstone-Smith Sierra del Oro, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Sunset, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Meadows at Russett (Borrower) I, L.L.C., a Delaware limitedliability company

 

Tishman SpeyerArchstone-Smith Meadows at Russett (Borrower) II, L.L.C., a Delaware limitedliability company

 

ASN DullesLLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Cedar River, L.L.C., a Delaware limited liability company

 

ASN EncinitasLLC, a Delaware limited liability company

 

Smith PropertyHoldings Five (D.C.) L.P., a Delaware limited partnership

 

Smith PropertyHoldings Van Ness L.P., a Delaware limited partnership

 

ASN WestmontLLC, a Delaware limited liability company

 

ASN MurrayHill LLC, a Delaware limited liability company

 

ASN Key WestLLC, a Delaware limited liability company

 

Smith PropertyHoldings Crystal Houses LLC, a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Crystal Square, L.L.C., a Delaware limited liability company

 

Tishman SpeyerArchstone-Smith Crystal Towers & Lofts 590, L.L.C., a Delaware limitedliability company

 

Tishman SpeyerArchstone-Smith Newport Village I & II, L.L.C., a Delaware limitedliability company

 

S-38

----

 

Tishman SpeyerArchstone-Smith Newport Village III, L.L.C., a Delaware limited liabilitycompany

 

Tishman SpeyerArchstone-Smith Bennington, L.L.C., a Delaware limited liability company

 

S-39

----

 

**Schedule II**

 

**IDOT GUARANTORS**

 

ASN Sunset LLC

 

ASN Meadows atRussett I LLC

 

ASN Meadows at Russett II LLC

 

S-40

----

 
|   | **LENDER:**                                                |
|--------|------------------------------------------------------------|
|   |                                                       |
|   | **LEMAN  BROTHERS HOLDINGS INC.,** a  Delaware corporation |
|   |                                                       |
|   |                                                       |
|   | By:                                                        | /s/ Catherine Harnett |   |
|   | Name:                                                      | Catherine Harnett |   |
|   | Title:                                                     | Authorized Signature |   |

 

S-41

----

 
|   | **BANK OF  AMERICA, N.A.,** a national banking   association |
|--------|--------------------------------------------------------------|
|   | ** **                                                   |
|   |                                                         |
|   | By:                                                          | /s/ James L. Levin |   |
|   | Name:                                                        |   | James L. Levin |   |
|   | Title:                                                       |   | Principal |   |

 

S-42

----

 
|   | **BARCLAYS  CAPITAL REAL ESTATE INC.,** a   Delaware corporation |
|--------|------------------------------------------------------------------|
|   | ** **                                                       |
|   |                                                             |
|   | By:                                                              | /s/ LoriAnn Rung |   |
|   | Name:                                                            | LoriAnn Rung |   |
|   | Title:                                                           | Vice President |   |

 

S-43

----

 

 

APPENDIX I

DEFINITIONS

 

For allpurposes of the Agreement, the following terms shall have the respective meaningsset forth below:

 

“AdditionalBorrower” means the owner of a Substitute Mortgaged Property, which entityhas been approved by Lender and becomes a Borrower under the Agreement and theapplicable Loan Documents.

 

“AdditionalDue Diligence Fees” means the due diligence fees paid by the applicableCollateral Pool Borrower to Lender with respect to each Substitute MortgagedProperty, as set forth in Section 8.03(a).

 

“AdditionalFixed Loan” means a Fixed Loan made pursuant to Section 2.05.

 

“AdditionalGuarantor” shall mean any entity that enters into a confirmation andjoinder agreement as provided in the Guaranty and, with regard to anyconcurrent transfer, such transfer shall not cause a reduction of the direct orindirect interests in the Guarantor held by Lehman Entities and/or TishmanControl Persons below 9.7% in the aggregate.

 

“AdditionalIDOT Guarantor” means the owner of a Substitute Mortgaged Property, whichentity has been approved by Lender and becomes an IDOT Guarantor under theAgreement and the applicable Loan Documents.

 

“AdjustableRate” has the meaning set forth in each Variable Loan Note evidencing aVariable Loan (which rate includes the Variable Loan Fee).

 

“Affiliate”or “Affiliated” means, when used with reference to a specified Person,(a) any Person that, directly or indirectly, through one or moreintermediaries, controls or is controlled by, or is under common control with,the specified Person, (b) any Person that is an officer of, partner in ortrustee of, or serves in a similar capacity with respect to, the specifiedPerson or of which the specified Person is an officer, partner or trustee, orwith respect to which the specified Person serves in a similar capacity, (c)any Person that, directly or indirectly, is the beneficial owner of ten percent(10%) or more of any class of equity securities of, or otherwise has asubstantial beneficial interest in, the specified Person or of which thespecified Person is, directly or indirectly, the owner of ten percent (10%) ormore of any class of equity securities or in which the specified Person has asubstantial beneficial interest, and (d) for the specified Person, any of theindividual’s spouse, issue, parents, siblings and a trust for the benefit ofthe individual’s spouse or issue, or both. For the purposes of this definition,“control” (including with correlative meanings, the terms “controlling,” “controlledby” and “under common control with”), as applied to any Person, means thepossession, directly or indirectly, of the power to direct or cause thedirection of the management (other than property management) and policies ofthat Person, whether through the ownership of voting securities, ownershipinterests or by contract or otherwise.

 

“AggregateDebt Service Coverage Ratio” means, with respect to any Collateral Pool forany specified date, the ratio (expressed as a percentage) of—

 

1

----

 

(a)           the aggregate of theNet Operating Income for the Mortgaged Properties in such Collateral Pool

 

to

 

(b)           theDebt Service for such Collateral Pool on the specified date.

 

“AggregateLoan to Value Ratio” means, with respect to any Collateral Pool for anyspecified date, the ratio (expressed as a percentage) of—

 

(a)           theLoans Outstanding secured by the Mortgaged Properties in such Collateral Poolon the specified date,

 

to

 

(b)           theaggregate of the Valuations most recently obtained prior to the specified datefor all of the Mortgaged Properties in such Collateral Pool.

 

“Agreement”means the Master Credit Facility Agreement, as it may be amended, supplementedor otherwise modified from time to time, including all Recitals and Exhibits tothe Agreement, each of which is hereby incorporated into the Agreement by thisreference.

 

“AllocableLoan Amount” means the portion of the Loans secured by a Collateral Poolallocated to a particular Mortgaged Property by Lender in accordance with theAgreement.

 

“Alterations”shall have the meaning set forth in Section 6.09.

 

“AmortizationPeriod” means the period of thirty (30) years.

 

“ApplicableLaw” means (a) all applicable provisions of all constitutions, statutes,rules, regulations and orders of all governmental bodies, all GovernmentalApprovals and all orders, judgments and decrees of all courts and arbitrators,(b) all zoning, building, environmental and other laws, ordinances, rules,regulations and restrictions of any Governmental Authority affecting theownership, management, use, operation, maintenance or repair of any MortgagedProperty, including the Americans with Disabilities Act (if applicable), theFair Housing Amendment Act of 1988 and Hazardous Materials Laws (as defined inthe Security Instrument), (c) any building permits or any conditions,easements, rights-of-way, covenants, restrictions of record or any recorded orunrecorded agreement affecting or concerning any Mortgaged Property includingplanned development permits, condominium declarations, and reciprocal easementand regulatory agreements with any Governmental Authority, (d) all laws,ordinances, rules and regulations, whether in the form of rent control, rentstabilization or otherwise, that limit or impose conditions on the amount ofrent that may be collected from the units of any Mortgaged Property, and (e)requirements of the Borrower’s or IDOT Guarantor’s insurance companies orsimilar organizations, affecting the operation or use of any Mortgaged Propertyor the consummation of the transactions to be effected by the Agreement or anyof the other Loan Documents.

 

2

----

 

“Appraisal”means an appraisal of Multifamily Residential Property conforming to therequirements of the Financial Institutions Reform, Recovery and Enforcement Actof 1989, as amended.

 

“ASOT”means Archstone-Smith Operating Trust, a Maryland real estate investment trust.

 

“AppraisedValue” means the value set forth in an Appraisal.

 

“Bank Debt”shall mean those credit facilities described in that certain Credit Agreement,dated as of October 5, 2007 among River Trust Acquisition (MD), LLC, a Marylandlimited liability company (to be merged with and into Archstone Smith OperatingTrust), Tishman Speyer Archstone-Smith Multifamily Guarantor, L.P., a Delawarelimited partnership, Tishman Speyer Archstone-Smith Multifamily ParallelGuarantor, L.L.C., a Delaware limited liability company, Tishman SpeyerArchstone-Smith Multifamily Principal, L.P., a Delaware limited partnership,Tishman Speyer Archstone-Smith Multifamily Nominee (GP), L.L.C., a Delawarelimited liability company, Tishman Speyer Archstone-Smith Multifamily Nominee,L.P., a Delaware limited partnership, Tishman Speyer Archstone-SmithMultifamily Series I, Inc., a Maryland corporation, Tishman SpeyerArchstone-Smith Multifamily Series II, L.L.C., a Delaware limited liabilitycompany, Tishman Speyer Archstone-Smith Multifamily Series III, L.L.C., aDelaware limited liability company, Tishman Speyer Archstonesmith MultifamilySeries IV, L.L.C., a Delaware limited liability company, the several banks andother financial institutions or entities from time to time parties to theCredit Agreement in the aggregate maximum principal amount of $5,430,000,000.

 

“BankruptcyCode” means Title 11 of the United States Code entitled “Bankruptcy” as nowand hereafter in effect, or any successor statute.

 

“Borrower”shall have the meaning given to such term in the preamble to this Agreement.

 

“BorrowerAgent” shall have the meaning set forth in Section 12.03(a).

 

“BorrowerParties” means, with respect to any Collateral Pool, the applicableCollateral Pool Borrower, the applicable IDOT Guarantor, each Guarantor, andthe general partner or managing member of each applicable Collateral PoolBorrower and each Guarantor.

 

“BorrowerParty” shall mean any of the Borrower Parties, individually.

 

“BusinessDay” means a day on which Fannie Mae is open for business.

 

“CalendarQuarter” means, with respect to any year, any of the following three monthperiods: (a) January-February-March; (b) April-May-June; (c)July-August-September; and (d) October-November-December.

 

“CalendarYear” means the 12-month period from the first day of January to andincluding the last day of December, and each 12-month period thereafter.

 

3

----

 

“Cap Rate”means, for each Mortgaged Property, subject to Section 2.04(c) of theAgreement, a capitalization rate reasonably selected by Lender for use indetermining the Valuations, as disclosed to Borrower from time to time.

 

“CashCollateral Account” means the cash collateral account established pursuantto the Cash Collateral Agreement.

 

“CashCollateral Agreement” means a cash collateral, security and custodyagreement by and among Fannie Mae, Borrower and a collateral agent for FannieMae.

 

“CashEquivalents” means

 

(a)           securities issued orfully guaranteed or insured by the United States Government or any agencythereof and backed by the full faith and credit of the United States havingmaturities of not more than twelve (12) months from the date of acquisition.

 

(b)           certificatesof deposit, time deposits, demand deposits, Eurodollar time deposits,repurchase agreements, reverse repurchase agreements, or bankers’ acceptances,having in each case a term of not more than twelve (12) months, issued by anycommercial bank having membership in the FDIC, or by any U.S. commercial lender(or any branch or agency of a non-U.S. bank licensed to conduct business in theU.S.) having combined capital and surplus of not less than $100,000,000 whoseshort-term securities are rated at least A-1 by S&P or P-1 by Moody’sInvestors Service, Inc.; and

 

(c)           commercialpaper of an issuer rated at least A-1 by S&P or P-1 by Moody’s InvestorsService, Inc. and in either case having a term of not more than twelve (12)months.

 

“CashInterest Rate” means, on the date of determination, a rate of interest, perannum, established by Fannie Mae for loans purchased for cash by Fannie Mae ofsimilar characteristics then offered by Fannie Mae.

 

“Change ofControl” means the Transfer of a Controlling Interest.

 

“ClosingDate” means the Initial Closing Date and each date after the InitialClosing Date on which the funding or other transaction requested in a Request isrequired to take place.

 

“Collateral”means the Mortgaged Properties and other collateral from time to time or at anytime encumbered by the Security Instruments, or any other property securingBorrower’s obligations under the Loan Documents.

 

“CollateralEvent” means a Request for an Extension, Release, Substitution orAdditional Fixed Loan, an Event of Default or other event which may invalidatethe outstanding Allocable Loan Amounts or other Collateral Pool determinations.

 

4

----

 

“CollateralPool” means individually and collectively, all of the Collateral for aparticular Collateral Pool described in Recital B of the Agreementand identified on Exhibit A of the Agreement.

 

“CollateralPool Borrower” means individually and collectively, each Borrower that ownsCollateral that is a part of such Collateral Pool (each of which may bereferred to a “Collateral Pool (APPLICABLE POOL NUMBER**)**Borrower,” *i.e.*, each Borrower that owns collateral that is part ofCollateral Pool 1 may be referred to as a Collateral Pool 1 Borrower).

 

“ComplianceCertificate” means a certificate of Borrower substantially in the form of ExhibitF to the Agreement.

 

“Confirmationof Guaranty” means a confirmation of the Guaranty executed by Guarantor inconnection with any Request after the Initial Closing, substantially in theform of Exhibit E to the Agreement.

 

“ConsentDecree” means that certain Consent Decree entered into and ordered byUnited States District Judge Andrew M. Davis on June 8, 2005 in connection withthe ADA Litigation (as defined in Section 6.19).

 

“ContributionAgreement” means a Contribution Agreement by and among Borrower and anyAdditional Borrowers, as the same may be amended, modified or supplemented fromtime to time.

 

“ControllingInterest” shall mean, with respect to any entity, the following:

 

(i)            if such entity is alimited partnership, a Transfer of any general partnership interest thatresults in (x) one or more Lehman Entities and/or Tishman Speyer Control Personsnot having control (as defined in the definition of Affiliate) of such entityor (y) the Guarantors not being owned, directly or indirectly, at least 9.7% byone or more Lehman Entities and/or Tishman Speyer Control Persons, in theaggregate;

 

(ii)           if such entity is alimited liability company or a limited liability partnership, a Transfer of anymanaging member interest (or equivalent) that results in (x) one or more LehmanEntities and/or Tishman Speyer Control Persons not having control (as defined inthe definition of Affiliate) of such entity or (y) the Guarantors not beingowned, directly or indirectly, at least 9.7% by one or more Lehman Entitiesand/or Tishman Speyer Control Persons in the aggregate;

 

(iii)          if such entity is atrust, the removal, appointment or substitution of a trustee of such trustother than (A) in the case of a land trust, or (B) if the trustee of such trustafter such removal, appointment or substitution is a trustee selected by one ormore Lehman Entities and/or Tishman Control Person and such trustee is subjectto removal at the sole discretion of one or more Lehman Entities and/or TishmanControl Persons; or

 

(iv)          a Transfer of any or allof the interest of any entity (other than to an entity directly or indirectlycontrolled by one or more Lehman Entities and/or Tishman Speyer ControlPersons) that (A) has the ability to cause a change in Senior Management, or(B) has the

 

5

----

 

ability tocause the sale of all or a significant portion of the Borrower, IDOT Guarantoror any of the Guarantors, or (C) has the ability to cause a material change inany lines of business to be entered into or continued by any Borrower, IDOTGuarantor or any Guarantor.

 

“Coverageand LTV Tests” mean, for any Collateral Pool for any specified date, eachof the following financial tests:

 

(1)           For any Collateral Poolthat secures a Variable Loan, (a) the Aggregate Debt Service Coverage Ratio isnot less than, during the first two Loan Years, 1.0:1.0, and thereafter,..95:1.0; and (b) the Aggregate Loan to Value Ratio does not exceed 65%**.**

 

(2)           For any Collateral Poolthat secures a Fixed Loan, (a) the Aggregate Debt Service Coverage Ratio is notless than, during the first three Loan Years, .95:1.0; during the fourth andfifth Loan Years, 1:0:1.0; during the sixth and seventh Loan Years, 1.05:1.0,and during the eighth through tenth Loan Years, 1:10:1.0; and (b) the AggregateLoan to Value Ratio does not exceed 65%.

 

“CreditFacility” means the agreement by Lender to make Variable Loans and FixedLoans pursuant to the terms of the Agreement.

 

“DebtService Amounts” shall have the meaning set forth in Section 12.01(b).

 

“DebtService” means, for any Collateral Pool, —

 

(a)           Foruse in determining the additional borrowing capacity for Additional Fixed Loansto be created pursuant to Section 2.05, the sum of the amount ofinterest and principal amortization, during the twelve (12) month periodimmediately succeeding the specified date, with respect to the Loans Outstandingon the specified date and Additional Fixed Loans to be obtained from theadditional borrowing capacity pursuant to Section 2.05, except that, forthese purposes:

 

(i)            eachFixed Loan Outstanding shall require level monthly payments of principal and interest(at the interest rate for the Fixed Loan set forth in the applicable Fixed LoanNote) in an amount necessary to fully amortize the original principal amount ofthe Fixed Loan over the Amortization Period, with such amortization to commenceon the first day of the twelve (12) month period; and

 

(ii)           eachFixed Loan to be obtained shall be deemed to require level monthly payments ofprincipal and interest (at an interest rate equal to (A) the base United StatesTreasury Index Rate for securities having a maturity substantially similar tothe maturity of the Fixed Loan plus (B) the anticipated Fannie Mae spread (asdetermined by Lender) for Loans having similar characteristics as the FixedLoans to be made under this Agreement plus (C) the Fixed Loan Fee) in an amountnecessary to fully amortize the original principal amount of the Fixed Loanover the Amortization Period, with such amortization to commence on the firstday of the twelve (12) month period.

 

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(b)           Foruse in determining the Aggregate Debt Service Coverage Ratio, for purposes ofdetermining compliance with the Coverage and LTV Tests, for use in determiningthe Release Price pursuant to Section 3.02(c) of the Agreement (exceptfor Releases of Mortgaged Properties securing Variable Loans during the firsttwo Loan Years, in which case, clause (d) of the definition of Debt Serviceshall apply), for use in determining compliance with the Substitutionprovisions in Section 3.03 (except for Releases of Mortgaged Propertiessecuring Variable Loans during the first two Loan Years, in which case, clause(d) of the definition of Debt Service shall apply), for use in determiningwhether the requirements of Section 1.05(c) have been satisfied, and forother ongoing monitoring purposes pursuant to Section 2.04(b) of theAgreement, as of any specified date, the sum of the amount of interest andprincipal amortization, during the twelve (12) month period immediatelysucceeding the specified date, with respect to the Loans Outstanding on thespecified date, except that, for these purposes:

 

(i)            eachVariable Loan shall be deemed to require level monthly payments of principaland interest (at an interest rate equal to the Strike Rate (as defined in therelevant Interest Rate Hedge and Hedge Security Agreement) in the applicableVariable Loan Note for such Variable Loan) in an amount necessary to fullyamortize the original principal amount of the Variable Loan over theAmortization Period, with such amortization deemed to commence on the first dayof the twelve (12) month period; and

 

(ii)           eachFixed Loan shall require level monthly payments of principal and interest (atthe interest rate set forth in the applicable Fixed Loan Note for such FixedLoan) in an amount necessary to fully amortize the original principal amount ofthe Fixed Loan over the Amortization Period, with such amortization to commenceon the first day of the twelve (12) month period.

 

(c)           Foruse in determining the Aggregate Debt Service Coverage Ratio for purposes ofdetermining compliance with the Interest Rate Hedge and Hedge SecurityAgreement, as of any specified date, the sum of the amount of interest andprincipal amortization that would be payable during the twelve (12) monthperiod immediately succeeding the specified date, with respect to the amount ofthe Variable Loan Outstanding, except that, for these purposes, the VariableLoan shall be deemed to require level monthly payments of principal andinterest at an interest rate equal to the Adjustable Rate.

 

(d)           Foruse in determining the Aggregate Debt Service Coverage Ratio with respect toCollateral Pools securing Variable Loans during the first two Loan Years, thesum of interest that would be payable during the twelve (12) month period immediatelysucceeding the initial Closing Date with respect to the full amount of theinitial Loans, except that for these purposes, the initial Variable Loan shallbe deemed to require level monthly payments of interest at an interest rateequal to the Strike Rate (as defined in the relevant Interest Rate Hedge andHedge Security Agreement).

 

“DebtService Coverage Ratio” means, for any Mortgaged Property, for anyspecified date, the ratio (expressed as a percentage) of —

 

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(a)           theNet Operating Income utilizing expenses on a trailing twelve (12) month basisand income on a current basis, with such adjustments as Lender may make forsimilar loans anticipated to be sold to Fannie Mae for the subject MortgagedProperty

 

to

 

(b)           theDebt Service on the specified date, assuming, for the purpose of calculatingthe Debt Service for this definition, that Loans Outstanding shall be theAllocable Loan Amount for the subject Mortgaged Property.

 

“ERISA”means the Employee Retirement Income Security Act of 1974, as amended from timeto time, and the regulations promulgated thereunder.

 

“Event ofDefault” means any event defined to be an “Event of Default” under Article9.

 

“ExculpatedParties” shall have the meaning set forth in Section 12.01(a).

 

“Extension”shall have the meaning set forth in Section 1.05.

 

“FacilityTermination Date” means, at any time during which Loans are Outstanding,the latest maturity date for any Loan Outstanding.

 

“Fannie Mae”means the federally-chartered and stockholder-owned corporation organized andexisting under the Federal National Mortgage Association Charter Act, 12 U.S.C.§ 1716 etseq.

 

“Fannie MaeCommitment” shall have the meaning set forth in Section 2.01(b)(iii).

 

“Fees”means Additional Due Diligence Fee, Origination Fee, Fixed Loan Fee, InitialDue Diligence Fee, Re-Underwriting Fee, Substitution Fee, Variable Loan Fee anyand all other fees specified in the Agreement.

 

“Fixed LoanFee” means for any Additional Fixed Loan made after the Initial ClosingDate, the number of basis points determined at the time of such closing byLender as the Fixed Loan Fee for such Additional Fixed Loans.

 

“Fixed Loan”means a fixed-rate loan made by Lender to a Collateral Pool Borrower each ofwhich shall be evidenced by a Fixed Loan Note in the form attached as ExhibitB to the Agreement.

 

“Fixed LoanNote” means a promissory note, in the form attached as Exhibit B tothe Agreement, which will be issued by the applicable Collateral Pool Borrowerto Lender, concurrently with the funding of each Fixed Loan together with anyAdditional Fixed Loans made pursuant to Section 2.05 of the Agreement,to evidence such Collateral Pool Borrower’s obligation to repay the Fixed Loan.

 

“FraudulentTransfer Laws” shall have the meaning set forth in Section 12.11.

 

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“GAAP”means generally accepted accounting principles in the United States in effectfrom time to time, consistently applied.

 

“GeneralConditions” shall have the meaning set forth in Article 4.

 

“GovernmentalApproval” means an authorization, permit, consent, approval, license,registration or exemption from registration or filing with, or report to, anyGovernmental Authority.

 

“GovernmentalAuthority” means any court, board, agency, commission, office or authorityof any nature whatsoever for any governmental unit (federal, state, county,district, municipal, city or otherwise) whether now or hereafter in existence.

 

“GrossRevenues” means, for any specified period, with respect to any MultifamilyResidential Property, all income in respect of such Multifamily ResidentialProperty as reflected on the certified operating statement for such specifiedperiod as adjusted to exclude unusual income (e.g. temporary or nonrecurringincome), income not allowed by Lender for similar loans anticipated to be soldto Fannie Mae (e.g. interest income, furniture income, etc.), and the value ofany unreflected concessions.

 

“Guarantor”means, individually and collectively, ASOT, Tishman Speyer Archstone- SmithMultifamily Guarantor, L.P., Tishman Speyer Archstone-Smith MultifamilyParallel Guarantor, L.L.C., Tishman Speyer Archstone-Smith Multifamily ParallelGuarantor I, L.L.C., Tishman Speyer Archstone-Smith Multifamily ParallelGuarantor II, L.L.C. and any Additional Guarantor.

 

“Guaranty”means individually and collectively, each Guaranty to be executed by Guarantorin the form of Exhibit D to the Agreement.

 

“HazardousMaterials,” with respect to any Mortgaged Property, shall have the meaninggiven that term in the Security Instrument encumbering the Mortgaged Property.

 

“HazardousMaterials Law,” with respect to any Mortgaged Property, shall have themeaning given that term in the Security Instrument encumbering the MortgagedProperty.

 

“HazardousSubstance Activity” means, with respect to any Mortgaged Property, anystorage, holding, existence, release, spill, leaking, pumping, pouring,injection, escaping, deposit, disposal, dispersal, leaching, migration, use,treatment, emission, discharge, generation, processing, abatement, removal,disposition, handling or transportation of any Hazardous Materials from, under,into or on such Mortgaged Property in violation of Hazardous Materials Laws,including the discharge of any Hazardous Materials emanating from suchMortgaged Property in violation of Hazardous Materials Laws through the air,soil, surface water, groundwater or property and also including the abandonmentor disposal of any barrels, containers and other receptacles containing anyHazardous Materials from or on such Mortgaged Property in violation ofHazardous Materials Laws, in each case whether sudden or nonsudden, accidentalor nonaccidental.

 

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“HedgeSecurity Agreement” means, with respect to an Interest Rate Hedge, theInterest Rate Hedge Security, Pledge and Assignment Agreement between theBorrower and the Lender, for the benefit of Lender, in the form attached as EXHIBITO to this Agreement as such agreement may be amended, modified,supplemented or restated from time to time.

 

“IDOTGuarantor” shall have the meaning given to such term in the preamble tothis Agreement.

 

“Impositions”and “Imposition Deposits” shall have the meaning set forth in theSecurity Instrument.

 

“Indebtedness”means, with respect to any Person, as of any specified date, withoutduplication, all:

 

(a)           indebtedness of suchPerson for borrowed money or for the deferred purchase price of property orservices (other than (i) current trade liabilities incurred in the ordinarycourse of business and payable in accordance with customary practices, and (ii)for construction of improvements to property, if such person has anon-contingent contract to purchase such property, or (iii) amounts to be paidby such Person, in performance stages or upon completion, pursuant to a writtencontract for the making of capital improvements to a Mortgaged Propertypermitted by this Agreement or the other Loan Documents);

 

(b)           other indebtedness ofsuch Person which is evidenced by a note, bond, debenture or similarinstrument;

 

(c)           obligations of suchPerson under any lease of property, real or personal, the obligations of thelessee in respect of which are required by GAAP to be capitalized on a balancesheet of the lessee or to be otherwise disclosed as such in a note to suchbalance sheet;

 

(d)           obligations of suchPerson in respect of acceptances (as defined in Article 3 of the UniformCommercial Code of the District of Columbia) issued or created for the accountof such Person;

 

(e)           liabilities secured byany Lien on any property owned by such Person even though such Person has notassumed or otherwise become liable for the payment of such liabilities; and

 

(f)            as to any Person (“guaranteeingperson”), any obligation of (a) the guaranteeing person or (b) anotherPerson (including any bank under any letter of credit) to induce the creationof a primary obligation (as defined below) with respect to which theguaranteeing person has issued a reimbursement, counterindemnity or similarobligation, in either case guaranteeing, or in effect guaranteeing, anyindebtedness, lease, dividend or other obligation (“primary obligations”)of any third person (“primary obligor”) in any manner, whether directlyor indirectly, including any obligation of the guaranteeing person, whether ornot contingent, to (1) purchase any such primary obligation or any propertyconstituting direct or indirect security therefor, (2) advance or supply fundsfor the purchase or payment of any such primary obligation or to maintainworking capital or equity capital of the primary obligor or otherwise tomaintain the net worth or solvency of the primary obligor, (3) purchaseproperty,

 

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securities orservices primarily for the purpose of assuring the owner of any such primaryobligation of the ability of the primary obligor to make payment of suchprimary obligation, or (4) otherwise assure or hold harmless the owner of anysuch primary obligation against loss in respect of the primary obligation,provided, however, that the term “Contingent Obligation” shall notinclude endorsements of instruments for deposit or collection in the ordinarycourse of business. The amount of any Contingent Obligation of any guaranteeingperson shall be deemed to be the lesser of (i) an amount equal to the stated ordeterminable amount of the primary obligation in respect of which suchContingent Obligation is made and (ii) the maximum amount for which suchguaranteeing person may be liable pursuant to the terms of the instrumentembodying such Contingent Obligation, unless such primary obligation and themaximum amount for which such guaranteeing person may be liable are not statedor determinable, in which case the amount of such Contingent Obligation shallbe such guaranteeing person’s maximum reasonably anticipated liability inrespect thereof as determined by Owner in good faith. Notwithstanding theforegoing, nothing in this Subsection (f) shall preclude the obligations withrespect to any Borrower in connection with the Loans.

 

“InitialLoans” means individually and collectively, the Loans made on the InitialClosing Date in the aggregate amount of $7,069,325,900, as specifically setforth on Exhibit A.

 

“InitialClosing Date” means the date of the Agreement.

 

“InitialDue Diligence Fees” shall have the meaning set forth in 0.

 

“InitialMortgaged Properties” means the Multifamily Residential Propertiesdescribed on Exhibit A to the Agreement and which are made part of aCollateral Pool on the Initial Closing Date.

 

“InitialSecurity Instruments” means the Security Instruments covering the InitialMortgaged Properties.

 

“InitialValuation” means, when used with reference to specified Collateral, theValuation initially performed for the Collateral as of the date on which theCollateral was added to a Collateral Pool. The Initial Valuation for each ofthe Initial Mortgaged Properties is as set forth in Exhibit A to theAgreement.

 

“InsurancePolicy” means, with respect to a Mortgaged Property, the insurance coverageand insurance certificates evidencing such insurance required to be maintainedpursuant to the Security Instrument encumbering the Mortgaged Property.

 

“InterestRate Hedge” shall have the meaning set forth in Section 1.06.

 

“InternalRevenue Code” means the Internal Revenue Code of 1986, as amended. Eachreference to the Internal Revenue Code shall be deemed to include (a) anysuccessor internal revenue law and (b) the applicable regulations whether finalor temporary.

 

“Issuer”shall have the meaning set forth in Section 4.08(a).

 

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“Lease”means any lease, any sublease or subsublease, license, concession or otheragreement (whether written or oral and whether now or hereafter in effect)pursuant to which any Person is granted a possessory interest in, or right touse or occupy all or any portion of any space in any Mortgaged Property, andevery modification, amendment or other agreement relating to such lease, sublease,subsublease or other agreement entered into in connection with such lease,sublease, subsublease or other agreement, and every guarantee of theperformance and observance of the covenants, conditions and agreements to beperformed and observed by the other party thereto.

 

“LehmanEntities” shall mean, collectively, Lehman Brothers Holdings Inc. and anyPerson that, directly or indirectly, through one or more intermediaries,controls or is controlled by, or is under common control with Lehman BrothersHoldings Inc. For the purposes of this definition, “control” (including withcorrelative meanings, the terms “controlling,” “controlled by” and “undercommon control with”), as applied to any Person, means the possession, directlyor indirectly, of the power to direct or cause the direction of the management(other than property management) and policies of that Person, whether throughthe ownership of voting securities, ownership interests or by contract orotherwise.

 

“LehmanMezzanine Debt” shall mean debt incurred by the direct owner of Borrower(the “Senior Mezzanine Borrower”) and by the direct owner of SeniorMezzanine Borrower, in each case secured by a pledge of the ownership interestin such entities, to be made by Lehman Brothers Holdings Inc., Bank of America,N.A., and Barclays Capital Real Estate Finance Inc. in the maximum principalamount of $46,719,952 with respect to Collateral Pool 1, $90,032,738 withrespect to Collateral Pool 2, $158,348,902 with respect to Collateral Pool 3,$91,246,464 with respect to Collateral Pool 4, $28,182,968 with respect toCollateral Pool 5, $0 with respect to Collateral Pool 6, $97,854,409 withrespect to Collateral Pool 7, $19,835,933 with respect to Collateral Pool 8,and $236,637,785 with respect to Collateral Pool 9.

 

“Lender”shall have the meaning set forth in the first paragraph of the Agreement, andshall also refer to any replacement Lender.

 

“Letter ofCredit” means a letter of credit issued by an LOC Bank satisfactory toFannie Mae, naming Fannie Mae as beneficiary in form and substance as attachedhereto as Exhibit P or as otherwise reasonably and customarilyacceptable to Fannie Mae.

 

“Lien”means any mortgage, deed of trust, deed to secure debt, security interest orother lien or encumbrance (including both consensual and non-consensual liensand encumbrances).

 

“Line ofCredit” shall mean that portion of the Bank Debt designated as the “RevolvingCredit Commitment” in the Credit Agreement evidencing the Bank Debt in theoriginal principal amount of $750,000,000.

 

“Line ofCredit Availability” shall mean the amount of money that, at the end of anyfiscal quarter of the borrower under the Bank Debt of the Line of Credit, isnot outstanding and has not been committed for a purpose other than the paymentof the Impositions, reserves required under the Loan Documents, the purchase ofan Interest Rate Hedge to replace any Interest Rate Hedge pledged to Lenderunder the Loan Document, the re-tenanting of any

 

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MortgagedProperty subject to a Master Lease, which Master Lease has been terminated orhas expired, or capital expenditures to be made on any Mortgaged Property.

 

“Line ofCredit Triggering Event” means that, at any time, the Line of CreditAvailability is less than $65,000,000, provided that, during any period thatthe aggregate of all Loans Outstanding under this Agreement is less than theamount of Loans Outstanding on the Initial Closing Date, the Line of CreditAvailability requirement for a Line of Credit Triggering Event shall be reducedby the percentage by which the principal balance of Loans outstanding has beenreduced. By way of example, if the total amount of Loans Outstanding is 10%less than the total amount of Loans Outstanding on the Initial Closing Date,the Line of Credit Triggering Event shall be reduced by 10% to $58,500,000.

 

“Loan”means a Variable Loan and/or a Fixed Loan.

 

“LoanAmount” means, for any Loan, the outstanding principal amount of the Loanmade to a Collateral Pool Borrower. The amount of the Initial Loan to eachCollateral Pool Borrower is shown on Exhibit A to the Agreement.

 

“LoanDocument Taxes” shall have the meaning set forth in Section 6.10.

 

“LoanDocuments” means with respect to any Collateral Pool, the Agreement, theNotes, the Security Documents, all documents executed by a Collateral PoolBorrower, IDOT Guarantor or Guarantor pursuant to the General Conditions setforth in Article 4 of the Agreement and any other documents executed bya Collateral Pool Borrower or Guarantor from time to time in connection withthe Agreement or the transactions contemplated by the Agreement.

 

“LoanRequest” means a written request, substantially in the form of Exhibit Ito the Agreement, for a Loan made pursuant to this Agreement.

 

“Loan toValue Ratio” means, for a Mortgaged Property, for any specified date, theratio (expressed as a percentage) of —

 

(a)           the Allocable LoanAmount of the subject Mortgaged Property on the specified date,

 

to

 

(b)           the Valuation mostrecently obtained prior to the specified date for the subject MortgagedProperty.

 

“Loan Year”means the twelve (12) month period from the first day of the first calendarmonth after the Initial Closing Date to and including the last day before thefirst anniversary of the Initial Closing Date, and each twelve (12) monthperiod thereafter.

 

“LOC Bank”means any financial institution issuing the Letter of Credit and meeting therequirements set forth in Section 4.08.

 

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“MasterLease” means, individually and collectively, any lease of an entireMortgaged Property to a single tenant, which Master Lease and the tenantthereunder shall be satisfactory to Lender.

 

“MasterTenant” means the tenant of the Improvements under one or more MasterLeases.

 

“MaterialAdverse Effect” means, with respect to any circumstance, act, condition orevent of whatever nature (including any adverse determination in anylitigation, arbitration, or governmental investigation or proceeding), whether singlyor in conjunction with any other event or events, act or acts, condition orconditions, or circumstance or circumstances, whether or not related, amaterial adverse change in or a materially adverse effect upon any of (a) thebusiness, operations, property or condition (financial or otherwise) ofBorrower, IDOT Guarantor or Guarantor, (b) the present or future ability ofBorrower, IDOT Guarantor or Guarantor to perform the Obligations for which itis liable, (c) the validity, priority, perfection or enforceability of theAgreement or any other Loan Document or the rights or remedies of Lender underany Loan Document, or (d) the value of, or Lender’s ability to have recourseagainst, any Mortgaged Property.

 

“Moody’s”means Moody’s Investors Service, Inc., a corporation organized and existingunder the laws of the State of Delaware, and its successors and assigns, ifsuch successors and assigns shall continue to perform the functions of asecurities rating agency.

 

“MortgagedProperties” means, collectively, the Substitute Mortgaged Properties andthe Initial Mortgaged Properties, but excluding each Release Mortgaged Propertyfrom and after the date of its release from a Collateral Pool.

 

“MultifamilyResidential Property” means a residential property, located in the UnitedStates, containing five or more dwelling units in which not more than twentypercent (20%) of the net rentable area is or will be rented to non-residentialtenants, and conforming to the requirements of Lender for similar loans anticipatedto be sold to Fannie Mae.

 

“NetOperating Income” means, for any specified period, with respect to anyMultifamily Residential Property, the aggregate net income during such periodequal to Gross Revenues during such period less the aggregate OperatingExpenses during such period. If a Mortgaged Property is not owned by a Borroweror IDOT Guarantor or an Affiliate of a Borrower or IDOT Guarantor for theentire specified period, the Net Operating Income for the Mortgaged Propertyfor the time within the specified period during which the Mortgaged Propertywas owned by a Borrower or IDOT Guarantor or an Affiliate of a Borrower or IDOTGuarantor shall be the Mortgaged Property’s net operating income determined byLender in accordance with the underwriting procedures set forth by Lender forsimilar loans anticipated to be sold to Fannie Mae.

 

“Note”means any Fixed Loan Note and/or Variable Loan Note.

 

“Obligations”means the aggregate of the obligations of a Collateral Pool Borrower, IDOTGuarantor and Guarantor under the Agreement and the other Loan Documents.

 

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“One-MonthLIBOR Rate” means the British Bankers Association fixing of the LondonInter-Bank Offered Rate for 1-month U.S. Dollar-denominated deposits asreported by Telerate through electronic transmission. If the Index is no longeravailable, or is no longer posted through electronic transmission, Lender willchoose a new index that is based upon comparable information and provide noticethereof to Borrower.

 

“OperatingExpenses” means, for any period, with respect to any MultifamilyResidential Property, all expenses in respect of the Multifamily ResidentialProperty, as determined by Lender based on the certified operating statementfor such specified period as adjusted to provide for the following: (i) allappropriate types of expenses, including a management fee and deposits to theReplacement Reserves (whether funded or not), are included in the totaloperating expense figure; (ii) upward adjustments to individual line itemexpenses to reflect market norms or actual costs and correct any unusually lowexpense items, which could not be replicated by a different owner or manager (e.g.,a market rate management fee will be included regardless of whether or not amanagement fee is charged, market rate payroll will be included regardless ofwhether shared payroll provides for economies, etc.); and (iii) downwardadjustments to individual line item expenses to reflect unique or aberrantcosts (e.g., non-recurring capital costs, non-operating borrowerexpenses, etc.).

 

“OrganizationalCertificate” means, collectively, certificates from Borrower, IDOTGuarantor and Guarantor to Lender, in the form of Exhibit G-1 through G-3to the Agreement, certifying as to certain organizational matters with respectto each Borrower, IDOT Guarantor and Guarantor.

 

“OrganizationalDocuments” means all certificates, instruments and other documents pursuantto which an organization is organized or operates, including but not limitedto, (i) with respect to a corporation, its articles of incorporation andbylaws, (ii) with respect to a limited partnership, its limited partnershipcertificate and partnership agreement, (iii) with respect to a generalpartnership or joint venture, its partnership or joint venture agreement and(iv) with respect to a limited liability company, its articles of organizationand operating agreement.

 

“OriginationFee” shall have the meaning set forth in Section 8.02.

 

“OtherBorrower” shall have the meaning set forth in Section 12.09 of theAgreement.

 

“OtherBorrower Secured Obligation” shall have the meaning set forth in Section12.04.

 

“Outstanding”means, when used in connection with promissory notes, other debt instruments orLoans, for a specified date, promissory notes or other debt instruments whichhave been issued, or Loans which have been made, to the extent not repaid infull as of the specified date.

 

“OwnershipInterests” means, with respect to any entity, any ownership interests inthe entity and any economic rights (such as a right to distributions, net cashflow or net income) to which the owner of such ownership interests is entitled.

 

“PBGC”means the Pension Benefit Guaranty Corporation or any entity succeeding to anyor all of its functions under ERISA.

 

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“Permits”means all permits, or similar licenses or approvals issued and/or required byan applicable Governmental Authority or any Applicable Law in connection withthe ownership, use, occupancy, leasing, management, operation, repair,maintenance or rehabilitation of any Mortgaged Property or any Borrower’s orIDOT Guarantor’s business.

 

“PermittedInvestments” shall have the meaning set forth on Exhibit N attachedto the Agreement.

 

“PermittedLiens” means, with respect to a Mortgaged Property:

 

(i)            the exceptions totitle to the Mortgaged Property set forth in the Title Insurance Policy for theMortgaged Property which are approved by Lender;

 

(ii)           Liens securingObligations to Lender, including the Lien of the Security Instrumentencumbering the Mortgaged Property;

 

(iii)          Liens for taxes not yetdelinquent;

 

(iv)          Liens in respect ofproperty imposed by law arising in the ordinary course of business such asmaterialmen’s, mechanics’, warehousemen’s, carriers’, landlords’ and othernonconsensual statutory Liens which (A) are not yet due and payable or (B) arereleased of record, bonded over or otherwise remedied to Lender’s satisfactionwithin sixty (60) days of the date of commencement of enforcement of any suchLien or before such earlier date on which Borrower’s or IDOT Guarantor’sinterest in the applicable property is subject to forfeiture by enforcement ofany such Lien;

 

(v)           Subject to (1) theprovisions of Section 20 of the Security Instrument and (2) Borrower or IDOTGuarantor providing Lender with a copy of each document within sixty (60) daysof the later of (x) the execution of such document, and (y) the date suchdocument is recorded: easements, rights-of-way, restrictions (including zoningrestrictions), matters of plat, minor defects or irregularities in title,licenses or lease agreements for laundry, cable television, telephone and othersimilar Liens which, in the aggregate, do not materially reduce the value ofthe Mortgaged Property or materially interfere with the operation and use of,or the ordinary conduct of the business on, the Mortgaged Property (providedthat any laundry or cable television licenses or leases shall not be aPermitted Lien if it does not comply with Lender’s requirement for similarloans anticipated to be sold to Fannie Mae). Notwithstanding the foregoing, tothe extent any of the foregoing items could reasonably be deemed to adverselyaffect (on an aggregate basis) the value of the Mortgaged Property by more thanthe lesser of (A) $1,000,000 and (B) ten percent (10%) of the value of theMortgaged Property, such item shall not be considered a Permitted Lien andshall require Lender’s prior written consent.

 

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(vi)          anyother Liens expressly permitted by the Loan Documents (including any delinquenttax Liens being contested in accordance with the terms of the SecurityInstrument); and

 

(vii)         anyother Liens approved by Lender.

 

“Person”means an individual, an estate, a trust, a corporation, a partnership, alimited liability company or any other organization or entity (whethergovernmental or private).

 

“Plan”means a “multiemployer plan” as defined in Section 4001(3) of ERISA and a “singleemployee plan” as defined in Section 4001(5) of ERISA.

 

“PoolTermination Date” means, at any time during which the Loans are Outstandingwith respect to a particular Collateral Pool, the latest maturity date for anyLoan Outstanding, taking into account any Extensions permitted under Section1.05 and any Additional Fixed Loan made pursuant to Section 2.05.

 

“PotentialEvent of Default” means with respect to a particular Collateral Pool anyevent which, with the giving of notice or the passage of time, or both, wouldconstitute an Event of Default.

 

“ProhibitedPerson” means (i) a Person that is the subject of, whether voluntary orinvoluntary, any case, proceeding or other action against Borrower or IDOTGuarantor under any existing or future law of any jurisdiction relating tobankruptcy, insolvency, reorganization or relief of debtors, or (ii) any Personwith whom Lender is prohibited from doing business pursuant to any law, rule,regulation, judicial proceeding or administrative directive, or (iii) anyPerson identified on the federal “Excluded Parties List System,” the federal “Officeof Foreign Assets and Control list, the U.S. Department of Housing and UrbanDevelopment’s Limited Denial of Participation, HUD Funding Disqualificationsand Voluntary Abstentions List,” or (iv) on the Lender’s “Multifamily ApplicantExperience Check,” each of which may be amended from time to time and anysuccessor or replacement thereof, or (v) a Person that is determined by FannieMae to have an unacceptable level outstanding debt to Fannie Mae.

 

“Property”means any estate or interest in any kind of property or asset, whether real,personal or mixed, and whether tangible or intangible.

 

“PropertyDelivery Deadline” shall have the meaning set forth in Section3.03(d)(ii).

 

“PropertyManager” means Archstone Property Management LLC, a Delaware limitedliability company, and Archstone Property Management (California) Incorporated,a Delaware corporation, Tishman Speyer Properties, L.P. or an Affiliate ofTishman Speyer Properties, L.P. or any other entity hired to operate and managethe Mortgaged Property, whose hiring is subject to the written approval andconsent of Lender.

 

“RateChange Date” has the meaning set forth in each Variable Loan Noteevidencing a Variable Loan.

 

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“Rate Form”means the completed and executed document from Borrower to Lender pursuant to Section2.01(b)(ii), substantially in the form of Exhibit H to theAgreement, specifying the terms and conditions of the Note rate to be issuedfor a requested Additional Fixed Loan.

 

“RateSetting Date” shall have the meaning set forth in Section 2.01(b)(ii).

 

“Release”shall have the meaning set forth in Section 3.01.

 

“ReleaseDocuments” mean instruments releasing the applicable Security Instrument asa Lien on a Mortgaged Property, and UCC-3 Termination Statements terminatingthe UCC-1 Financing Statements, and such other documents and instruments toevidence the release of such Mortgaged Property from a Collateral Pool.

 

“ReleaseFee” means $10,000 for each Release Mortgaged Property.

 

“ReleaseMortgaged Property” means the Mortgaged Property to be released pursuant toArticle 3.

 

“ReleasePrice” shall have the meaning set forth in Section 3.02(c).

 

“ReleaseRequest” means a written request, substantially in the form of Exhibit Jto the Agreement, to obtain a release of Collateral from a Collateral Poolpursuant to Section 3.02(a).

 

“RemainingMortgaged Properties” shall have the meaning set forth in Section4.04(g).

 

“Rent Roll”means, with respect to any Multifamily Residential Property, a rent rollprepared and certified by the owner of the Multifamily Residential Property, onFannie Mae Form 4243 or on another form approved by Lender and containingsubstantially the same information as Form 4243 requires.

 

“ReplacementReserve Agreement” means a Replacement Reserve and Security Agreement,reasonably required by Lender, and completed in accordance with requirements ofLender for similar loans anticipated to be sold to Fannie Mae.

 

“Request”means a Loan Request, a Substitution Request, or a Release Request.

 

“RescindedPayment” shall have the meaning set forth in Section 12.10.

 

“ResidentAgreement” means, with respect to any Mortgaged Property that is subject toa Master Lease, a written agreement for occupancy of a portion of a MortgagedProperty by an individual resident.

 

“Re-UnderwritingFee” shall have the meaning set forth in Section 8.01.

 

“S&P”shall mean Standard & Poor’s Credit Markets Services, a division of The McGraw-HillCompanies, Inc., a New York corporation, and its successors and assigns, ifsuch successors and assigns shall continue to perform the functions of asecurities rating agency.

 

18

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“Security”means a “security” as set forth in Section 2(1) of the Securities Act of 1933,as amended.

 

“SecurityDocuments” means the Security Instruments, the Replacement ReserveAgreements in connection with Master Leases, and any other documents executedby the applicable Collateral Pool Borrower or IDOT Guarantor from time to timeto secure any of such Collateral Pool Borrower’s obligations under the LoanDocuments.

 

“SecurityInstrument” means, for each Mortgaged Property, a Multifamily Mortgage,Deed of Trust or Deed to Secure Debt, Assignment of Leases and Rents andSecurity Agreement given by a Borrower or IDOT Guarantor to or for the benefitof Lender to secure the obligations of Collateral Pool Borrower under the LoanDocuments. With respect to each Mortgaged Property owned by a Borrower or IDOTGuarantor, the Security Instrument shall be substantially in the form publishedby Fannie Mae from time to time for use in the state in which the MortgagedProperty is located. The amount secured by the Security Instrument shall beequal to the aggregate amount of Loans Outstanding for the applicableCollateral Pool in effect from time to time; provided, however, that SecurityInstruments recorded against a Mortgaged Property or where there is a materialmortgage, recording or intangible tax applicable to the recordation of theSecurity Instrument, the amount secured by such Security Instrument shall belimited to a maximum secured principal amount equal to the product obtained bymultiplying (i) the Valuation of such Mortgaged Property on the date is itadded to the applicable Collateral Pool by (ii) one hundred fifteen percent(115%).

 

“SeniorManagement” means (a) the Chief Executive Officer, Co-Chairman of theBoard, President, Chief Financial Officer and Chief Operating Officer of ASOT,and (b) any other individuals with responsibility for any of the functionstypically performed in a corporation by the officers described in clause (a).

 

“Single-Purpose”means, with respect to a Person which is any form of partnership or corporationor limited liability company, that such Person at all times since itsformation:

 

(i)            has been a duly formedand existing partnership, corporation or limited liability company, as the casemay be;

 

(ii)           has been duly qualifiedin each jurisdiction in which such qualification was at such time necessary forthe conduct of its business;

 

(iii)          has complied with theprovisions of its organizational documents and the laws of its jurisdiction offormation in all respects;

 

(iv)          has observed allcustomary formalities regarding its partnership or corporate existence, as thecase may be;

 

(v)           has accuratelymaintained its financial statements, accounting records and other partnershipor corporate documents separate from those of any other Person;

 

(vi)          has not commingled itsassets or funds with those of any other Person;

 

19

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(vii)         hasidentified itself in all dealings with creditors (other than trade creditors inthe ordinary course of business and creditors for the construction ofimprovements to property on which such Person has a non-contingent contract topurchase such property) under its own name and as a separate and distinctentity;

 

(viii)        hasbeen adequately capitalized in light of its contemplated business operations;

 

(ix)           has not assumed, guaranteed or becomeobligated for the liabilities of any other Person (except in connection with aCollateral Pool or the endorsement of negotiable instruments in the ordinarycourse of business) or held out its credit as being available to satisfy theobligations of any other Person;

 

(x)            hasnot acquired obligations or securities of any other Person;

 

(xi)           in relation to a Borrower or IDOT Guarantor,except for loans made in the ordinary course of business to Affiliates, has notmade loans or advances to any other Person;

 

(xii)          has not entered into and was not a party toany transaction with any Affiliate of such Person, except in the ordinarycourse of business and on terms which are no less favorable to such Person thanwould be obtained in a comparable arm’s-length transaction with an unrelatedthird-party;

 

(xiii)         has paid the salaries of its own employees, ifany;

 

(xiv)        has allocated fairly and reasonably anyoverhead for shared office space;

 

(xv)         has not engaged in a non-exempt prohibitedtransaction described in Section 406 of ERISA or Section 4975 of the InternalRevenue Code to the extent it is subject to ERISA;

 

(xvi)        has complied with the requirements of Section33 of the Security Instrument;

 

(xvii)       provides in its Organizational Documents thatfor so long as the Loan is outstanding pursuant to the Loan Documents, it shallnot file or consent to the filing of any petition, either voluntary orinvoluntary, to take advantage of any applicable insolvency, bankruptcy,liquidation or reorganization statute, or make an assignment for the benefit ofcreditors without the affirmative vote of an Independent Director and of allother general partners/managing member/directors. For purposes of thisparagraph (xvii), Independent Director shall mean an independent manager ordirector that is not and has not been for at least five (5) years: (a) astockholder, director, officer, employee, partner, member, attorney or counselof such Person or of such principal or any Affiliate of either of them; (b) acustomer, supplier or other Person who derives its purchases or revenues (otherthan any fee paid to such director as compensation for such director to serveas an Independent Director) from its activities with such Person, suchprincipal or any Affiliate of either of them (a “**Business Party**”); (c) a Person controlling or under commoncontrol with any such stockholder, partner,

 

20

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member,director, officer, attorney, or counsel; (d) a member of the immediate familyof any such stockholder, director, officer, employee, partner, member,attorney, or counsel; provided, however, that a Person shall not be deemed tobe a director of any Affiliate solely by reason of such Person being a directorof an affiliated single-purpose entity (other than Senior Mezzanine Borrower orJunior Mezzanine Borrower. Notwithstanding the foregoing, no IndependentDirector shall also serve as (1) an Independent Director (as such term isdefined in the Senior Mezzanine Loan Agreement) for Senior Mezzanine Borroweror Principal (as such term is defined in the Senior Mezzanine Loan Agreement)of Senior Mezzanine Borrower or (2) an Independent Director (as such term isdefined in the Junior Mezzanine Loan Agreement) for Junior Mezzanine Borroweror Principal (as such term is defined in the Junior Mezzanine Loan Agreement)of Junior Mezzanine Borrower; and

 

(xviii)      haspaid its expenses and liabilities out of its own funds, including through theuse of capital contributions.

 

“SubjectBorrower” shall have the meaning set forth in Section 12.09.

 

“SubordinatedObligations” shall have the meaning set forth in Section 12.08.

 

“SubstituteCash Collateral” shall have the meaning set forth in Section 3.03(d)(ii).

 

“SubstituteMortgaged Property” means each Multifamily Residential Property owned byany Borrower, IDOT Guarantor, Additional Borrower or Additional IDOT Guarantor(either in fee simple or as tenant under a ground lease meeting all of Lender’srequirements for similar loans anticipated to be sold to Fannie Mae) and addedto a Collateral Pool after the Initial Closing Date in connection with asubstitution of Collateral as permitted by Section 3.03.

 

“Substitution”shall have the meaning set forth in Section 3.03.

 

“SubstitutionDeposit” shall have the meaning set forth in Section 3.03(e).

 

“SubstitutionFee” means with respect to any Substitution effected in accordance with Section3.03, a fee in the amount of $10,000 for each substitute property added toa Collateral Pool.

 

“SubstitutionLoan Documents” means the Security Instrument covering a SubstituteMortgaged Property and any other documents, instruments or certificatesreasonably required by Lender in form and substance satisfactory to Lender andBorrower or IDOT Guarantor in connection with the addition of the SubstituteMortgaged Property to a Collateral Pool pursuant to Article 3. Whenpossible, such Substitution Loan Documents shall be based substantially on thedocuments executed on the Initial Closing Date, with changes (i) required tocomply with the laws of the state where the Substitute Mortgaged Property islocated and (ii) as may be required by Lender due to the character and qualityof the Substitute Mortgaged Property based on Lender’s UnderwritingRequirements.

 

21

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“SubstitutionRequest” means a written request substantially in the form of Exhibit Jto the Agreement for a Substitution made pursuant to Section 3.03.

 

“Surveys”means the as-built surveys of the Mortgaged Properties prepared in accordancewith Lender’s requirements for similar loans that are anticipated to be sold toFannie Mae.

 

“Taxes”means all taxes, assessments, vault rentals and other charges, if any, general,special or otherwise, including all assessments for schools, public bettermentsand general or local improvements, which are levied, assessed or imposed by anypublic authority or quasi-public authority, and which, if not paid, will becomea lien, on the Mortgaged Properties.

 

“Term ofthis Agreement” shall be determined as provided in Section 13.10.

 

“Three-MonthLIBOR” means the British Bankers Association fixing of the LondonInter-Bank Offered Rate for 3-month U.S. Dollar-denominated deposits asreported by Telerate through electronic transmission. If the Index is no longeravailable, or is no longer posted through electronic transmission, Lender willchoose a new index that is based upon comparable information and provide noticethereof to Borrower.

 

“Tishman-LehmanBankruptcy Person” shall mean a Tishman Speyer Control Person or a LehmanEntity that owns a direct or indirect interest in any Borrow Party whosebankruptcy, insolvency, reorganization, debt adjustment, or winding up orcomposition or adjustment of debts, together with the bankruptcy, insolvency,reorganization, debt adjustment, winding up or composition of adjustment ofdebts of any other (whether one or more) Tishman Speyer Control Person orLehman Entity owning a direct or indirect interest in any Borrower Party could,in the reasonable judgment of Lender, have an adverse effect on any BorrowerParty or other Tishman Speyer Control Person or Lehman Entity’s ability tofulfill its obligations under the Loan Documents, or any such person’sbankruptcy case is substantially consolidated with the bankruptcy case of anyother Borrower Party or Tishman Speyer Control Person or Lehman Entity

 

“TishmanSpeyer Control Persons” shall mean, as of any applicable determinationdate, (i) any of Robert V. Tishman and/or Jerry I. Speyer and/or Robert J.Speyer, their spouses, descendants, heirs, legatees or devisees; (ii) theManaging Directors of the general partner of either Tishman SpeyerArchstone-Smith Multifamily Guarantor, L.P. or Tishman Speyer Archstone-SmithMultifamily Parallel Guarantor, L.L.C. on such determination date who wereeither serving as such on the date hereof or have been employed by the generalpartner of Tishman Speyer Archstone-Smith Multifamily Guarantor, L.P. orTishman Speyer Archstone- Smith Multifamily Parallel Guarantor, L.L.C. for atleast five (5) years prior to such determination date; (iii) the ManagingDirectors of TSP on such determination date who were either servicing as suchon the date hereof or have been employed by TSP for at least five (5) yearsprior to such determination date; or (iv) any Person directly or indirectlycontrolled (as defined in the definition of Affiliate) by one or more of thepersons described in clauses (i) through (iii) above.

 

22

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“TitleCompany” means First American Title Insurance Company or such othercompany(ies) approved by Lender, provided that the Title Company shall be thesame for each Mortgaged Property in the same Collateral Pool.

 

“TitleInsurance Policies” means the mortgagee’s policies of title insuranceissued by the Title Company from time to time relating to each of the SecurityInstruments, conforming to Lender’s requirements for similar loans anticipatedto be sold to Fannie Mae, together with such endorsements, coinsurance,reinsurance and direct access agreements with respect to such policies asLender may, from time to time, consider necessary or appropriate, includingvariable credit endorsements, if available, and tie-in endorsements, if available,and with an aggregate limit of liability under the policy (subject to thelimitations contained in sections of the Stipulations and Conditions of thepolicy relating to a Determination and Extent of Liability) equal to theaggregate amount of Loans Outstanding for the applicable Collateral Pool.

 

“Transfer”means

 

(1)           as used with respect toOwnership Interests in Borrower, IDOT Guarantor or Guarantor means (i) a sale,assignment, pledge, transfer or other disposition of any Ownership Interest inBorrower or IDOT Guarantor or in any entity that has a direct or indirectOwnership Interest in Borrower or IDOT Guarantor, or (ii) the issuance or othercreation of new Ownership Interests in Borrower, IDOT Guarantor or Guarantor orin any entity that has a direct or indirect Ownership Interest in Borrower,IDOT Guarantor or Guarantor that is not in compliance with the laws of theUnited States, or (iii) a merger or consolidation of Borrower or IDOT Guarantoror of any entity that has a direct or indirect Ownership Interest in Borroweror IDOT Guarantor, as the case may be, into another entity or of another entityinto Borrower or IDOT Guarantor or into any entity that has a direct orindirect Ownership Interest in Borrower or IDOT Guarantor, as the case may be,or (iv) the reconstitution of Borrower or IDOT Guarantor or of any entity thathas a direct or indirect Ownership Interest in Borrower or IDOT Guarantor fromone type of entity to another type of entity, or (v) the amendment,modification or any other change in the governing instrument or instruments ofa Person which has the effect of changing the relative powers, rights,privileges, voting rights or economic interests of the Ownership Interests insuch Person.

 

(2)           as used with respect toOwnership Interests in a Mortgaged Property means a sale, assignment, lease,pledge, transfer or other disposition (whether voluntary or by operation oflaw) of, or the granting or creating of a lien (other than a Permitted Lien),encumbrance or security interest in, any estate, rights, title or interest in aMortgaged Property, or any portion thereof. Transfer does not include aconveyance of a Mortgaged Property at a judicial or non-judicial foreclosuresale under any security instrument or the Mortgaged Property becoming part of abankruptcy estate by operation of law under the United States Bankruptcy Code.

 

“TSP”shall mean Tishman Speyer Properties, L.P., a New York limited partnership.

 

“UnderwritingRequirements” means Lender’s overall underwriting requirements forMultifamily Residential Properties in connection with loans anticipated to besold to Fannie Mae as such requirements may be amended, modified, updated,superseded, supplemented or replaced from time to time.

 

23

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“Valuation”means, for any specified date, with respect to a Multifamily ResidentialProperty, (a) if an Appraisal of the Multifamily Residential Property was morerecently obtained than a Cap Rate for the Multifamily Residential Property, theAppraised Value of such Multifamily Residential Property, or (b) if a Cap Ratefor the Multifamily Residential Property was more recently obtained than anAppraisal of the Multifamily Residential Property, the value derived bydividing—

 

(i)            theNet Operating Income of such Multifamily Residential Property, by

 

(ii)           themost recent Cap Rate determined by Lender or determined pursuant to Section2.04 or Section 2.05.

 

Notwithstandingthe foregoing, any Valuation for a Multifamily Residential Property calculatedfor a date occurring before the date twelve (12) months after the date on whichthe Multifamily Residential Property becomes a part of a Collateral Pool shallequal the Appraised Value of such Multifamily Residential Property, unlessLender determines that changed market or property conditions warrant that thevalue be determined as set forth in the preceding sentence.

 

“VariableLoan” means a variable-rate loan made by Lender to Borrower under thisAgreement that is anticipated to be sold to Fannie Mae under the Fannie MaeStructured Adjustable Rate Mortgage program.

 

“VariableLoan Fee” means one hundred twenty six and one-half (126.5) basis pointsper annum (1.265%) for a Variable Loan.

 

“VariableLoan Note” means the promissory note, in the form attached as Exhibit Cto the Agreement, which will be issued by the applicable Collateral PoolBorrower to Lender on the Initial Closing Date to evidence such Borrower’sobligation to repay Variable Loans.

 

“WaivingBorrower” shall have the meaning set forth in Section 12.04.

 

24

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**EXHIBITA TO MASTER CREDIT FACILITY AGREEMENT**

 

**SCHEDULEOF COLLATERAL POOL BORROWERS, INITIAL MORTGAGED PROPERTIES, COLLATERALPOOLS, INITIAL LOANS AND INITIAL VALUATIONS**

 
| **Property**                                                                    | ** ** | ** **                     | ** ** | ** **                  | ** ** | ** **                  | ** ** | **Initial**   | ** **  |
|---------------------------------------------------------------------------------|------------|--------------------------------|------------|-----------------------------|------------|-----------------------------|------------|---------------|-------------|
| **Number**                                                                      | ** ** | **Borrower Name**         | ** ** | **Mortgaged Property** | ** ** | **Property Address**   | ** ** | **Valuation** | ** **  |
| **COLLATERAL POOL 1: $493,329,410 Initial Loan to  such Collateral Pool**       |       |                           |       |
| MA012/2                                                                         |       | ASN Bear Hill LLC              |       | Archstone Bear Hill         |       | 1449 Main Street            |       | $             | 126,280,000 |   |
|                                                                            |       |                           |       |                        |       | Waltham, MA                 |       |          |        |
| MA060/6                                                                         |       | ASN Quarry Hills LLC           |       | Archstone Quarry Hills      |       | 333 Ricciuti Drive          |       | $             | 122,210,000 |   |
|                                                                            |       |                           |       |                        |       | Quincy, MA                  |       |          |        |
| MA031/9                                                                         |       | ASN Watertown LLC              |       | Archstone Watertown Square  |       | 20 Watertown Street         |       | $             | 52,020,000  |   |
|                                                                            |       |                           |       |                        |       | Watertown, MA               |       |          |        |
| CA184/81                                                                        |       | Tishman Speyer Archstone-Smith |       | Archstone Cupertino         |       | 5608 Stevens Creek Blvd.    |       | $             | 113,910,000 |   |
|                                                                            |       | Cupertino, L.L.C.              |       |                        |       | Cupertino, CA               |       |          |        |
| CA035/82                                                                        |       | Tishman Speyer Archstone-Smith |       | Archstone Emerald Park      |       | 5095 Haven Place            |       | $             | 95,000,000  |   |
|                                                                            |       | Emerald Park, L.L.C.           |       |                        |       | Dublin, CA                  |       |          |        |
| CA036/85                                                                        |       | Tishman Speyer Archstone-Smith |       | Archstone Hacienda          |       | 5650 Owens Drive            |       | $             | 155,000,000 |   |
|                                                                            |       | Hacienda, L.L.C.               |       |                        |       | Pleasanton, CA              |       |          |        |
| CA098/87                                                                        |       | Tishman Speyer Archstone-Smith |       | Archstone Mountain View     |       | 870 E. El Camino Real       |       | $             | 46,620,000  |   |
|                                                                            |       | Mountain View, L.L.C.          |       |                        |       | Mountain View, CA           |       |          |        |
| CA015/88                                                                        |       | Tishman Speyer Archstone-Smith |       | Archstone Redwood Shores    |       | 850 Davit Lane              |       | $             | 86,000,000  |   |
|                                                                            |       | Redwood Shores, L.L.C.         |       |                        |       | Redwood City, CA            |       |          |        |
| **COLLATERAL POOL 2:  $707,648,573 Initial Loan to such  Collateral Pool** |       |                           |       |
| MA056/5                                                                         |       | ASN Kendall Square LLC,        |       | Archstone Kendall Square    |       | 195 Binney Street           |       | $             | 78,450,000  |   |
|                                                                            |       | successor-by-merger to ASN     |       |                        |       | Cambridge, MA               |       |          |        |
|                                                                            |       | Worthington Place LLC          |       |                        |       |                        |       |          |        |
| CA166/33                                                                        |       | ASN Los Feliz LLC              |       | Archstone Los Feliz         |       | 3100 Riverside Drive        |       | $             | 75,000,000  |   |
|                                                                            |       |                           |       |                        |       | Los Angeles, CA             |       |          |        |
| CA162/36                                                                        |       | Tishman Speyer Archstone-Smith |       | Archstone Old Town Pasadena |       | 350 Del Mar Boulevard       |       | $             | 29,400,000  |   |
|                                                                            |       | Old Town Pasadena, L.L.C.      |       |                        |       | Pasadena, CA                |       |          |        |
| CA089/38                                                                        |       | Tishman Speyer Archstone-Smith |       | Archstone Playa Del Ray     |       | 8700 Pershing Drive         |       | $             | 167,600,000 |   |
|                                                                            |       | Playa Del Rey, L.L.C.          |       |                        |       | Playa Del Rey, CA           |       |          |        |
| CA163/43                                                                        |       | Tishman Speyer Archstone-Smith |       | Archstone Thousand Oaks     |       | 351 Hodencamp Road          |       | $             | 55,200,000  |   |
|                                                                            |       | Thousand Oaks, L.L.C.          |       |                        |       | Thousand Oaks, CA           |       |          |        |
| NY032/65                                                                        |       | Tishman Speyer Archstone-Smith |       | Carmargue                   |       | 303 E 83rd                  |       | $             | 212,700,000 |   |
|                                                                            |       | Carmargue I, L.L.C.; Tishman   |       |                        |       | New York, NY                |       |          |        |
|                                                                            |       | Speyer Archstone-Smith         |       |                        |       |                        |       |          |        |
|                                                                            |       | Carmargue II, L.L.C.; Tishman  |       |                        |       |                        |       |          |        |
|                                                                            |       | Speyer Archstone-Smith         |       |                        |       |                        |       |          |        |
|                                                                            |       | Carmargue III, L.L.C.          |       |                        |       |                        |       |          |        |
| CA161/71                                                                        |       | ASN La Jolla Colony LLC        |       | Archstone La Jolla Colony   |       | 7205 Charmant Drive         |       | $             | 49,020,000  |   |
|                                                                            |       |                           |       |                        |       | San Diego, CA               |       |          |        |
| CA189/92                                                                        |       | ASN San Mateo LLC              |       | Archstone San Mateo         |       | 1101 Park Place             |       | $             | 242,000,000 |   |
|                                                                            |       |                           |       |                        |       | San Mateo, CA               |       |          |        |
| CA190/95                                                                        |       | Tishman Speyer Archstone-Smith |       | Archstone South Market      |       | One Saint Francis Place     |       | $             | 197,100,000 |   |
|                                                                            |       | South Market, L.L.C.           |       |                        |       | San Francisco, CA           |       |          |        |
| CA164/98                                                                        |       | ASN Walnut Ridge LLC           |       | Archstone Walnut Ridge      |       | 2992 Santos Lane            |       | $             | 31,800,000  |   |
|                                                                            |       |                           |       |                        |       | Walnut Creek, CA            |       |          |        |
| WA039/112                                                                       |       | ASN Redmond Lakeview LLC       |       | Archstone Redmond Lakeview  |       | 4250 W Lake Sammamish Pkwy. |       | $             | 39,000,000  |   |
|                                                                            |       |                           |       |                        |       | NE, Redmond, WA             |       |          |        |
| **COLLATERAL POOL 3: $1,265,805,659 Initial Loan  to such Collateral Pool**     |       |                           |       |
| CA156/30                                                                        |       | Tishman Speyer Archstone-Smith |       | Archstone Del Mar Station   |       | 265 Arroyo Parkway          |       | $             | 169,200,000 |   |
|                                                                            |       | Del Mar Station, L.L.C.        |       |                        |       | Pasadena, CA                |       |          |        |

 

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| **Property**                                                              | ** ** | ** **                       | ** ** | ** **                      | ** ** | ** **                | ** ** | **Initial**   | ** **  |
|---------------------------------------------------------------------------|------------|----------------------------------|------------|---------------------------------|------------|---------------------------|------------|---------------|-------------|
| **Number**                                                                | ** ** | **Borrower Name**                | ** ** | **Mortgaged Property**          | ** ** | **Property Address**      | ** ** | **Valuation** | ** **  |
| CA151/35                                                                  |       | Tishman Speyer Archstone-Smith   |       | Archstone Oak Creek             |       | 29128 Oak Creek Lane      |       | $             | 152,400,000 |   |
|                                                                      |       | Oak Creek I, L.L.C. and Tishman  |       |                            |       | Agoura Hills, CA          |       |          |        |
|                                                                      |       | Speyer Archstone-Smith Oak       |       |                            |       |                      |       |          |        |
|                                                                      |       | Creek II, L.L.C.                 |       |                            |       |                      |       |          |        |
| CA128/39                                                                  |       | ASN Santa Monica LLC             |       | Archstone Santa Monica          |       | 425 Broadway              |       | $             | 122,500,000 |   |
|                                                                      |       |                             |       |                            |       | Santa Monica, CA          |       |          |        |
| CA154/40                                                                  |       | Tishman Speyer Archstone-Smith   |       | Archstone Santa Monica on       |       | 2000 Main Street          |       | $             | 103,700,000 |   |
|                                                                      |       | Santa Monica on Main, L.L.C.     |       | Main                            |       | Santa Monica, CA          |       |          |        |
| CA092/41                                                                  |       | ASN Studio City LLC; Tishman     |       | Archstone Studio City           |       | 10979 Bluffside Drive     |       | $             | 289,800,000 |   |
|                                                                      |       | Speyer Archstone-Smith Studio    |       |                            |       | Studio City, CA           |       |          |        |
|                                                                      |       | City III-A, L.L.C.; Tishman      |       |                            |       |                      |       |          |        |
|                                                                      |       | Speyer Archstone-Smith Studio    |       |                            |       |                      |       |          |        |
|                                                                      |       | City III-B, L.L.C.; Tishman      |       |                            |       |                      |       |          |        |
|                                                                      |       | Speyer Archstone-Smith Studio    |       |                            |       |                      |       |          |        |
|                                                                      |       | City III-C, L.L.C.               |       |                            |       |                      |       |          |        |
| CA082/42                                                                  |       | Tishman Speyer Archstone-Smith   |       | Archstone Westside              |       | 3165 Sawtelle Blvd.       |       | $             | 93,200,000  |   |
|                                                                      |       | Westside, L.L.C.                 |       |                            |       | Los Angeles, CA           |       |          |        |
| NJ003/53                                                                  |       | ASN Hoboken I LLC and ASN        |       | Archstone Hoboken               |       | 77 Park Avenue            |       | $             | 215,000,000 |   |
|                                                                      |       | Hoboken II LLC                   |       |                            |       | Hoboken, NJ               |       |          |        |
| CA130/93                                                                  |       | ASN Santa Clara LLC              |       | Archstone Santa Clara           |       | 1650 Hope Drive           |       | $             | 121,660,000 |   |
|                                                                      |       |                             |       |                            |       | Santa Clara, CA           |       |          |        |
| VA040/153                                                                 |       | Tishman Speyer Archstone-Smith   |       | Parc Vista                      |       | 801 15th Street South     |       | $             | 102,900,000 |   |
|                                                                      |       | Parc Vista, L.L.C.               |       |                            |       | Arlington, VA             |       |          |        |
| VA054/156                                                                 |       | Smith Property Holdings Water    |       | Water Park Towers               |       | 1501/1505 Crystal Drive   |       | $             | 138,200,000 |   |
|                                                                      |       | Park Towers L.L.C.               |       |                            |       | Arlington, VA             |       |          |        |
| VA063/157                                                                 |       | Smith Property Holdings Wilson   |       | 2201 Wilson Boulevard           |       | 2201 Wilson Boulevard     |       | $             | 97,900,000  |   |
|                                                                      |       | L.L.C.                           |       |                            |       | Arlington, VA             |       |          |        |
| VA032/160                                                                 |       | Smith Property Holdings Ballston |       | Ballston Place                  |       | 901 N. Pollard Street     |       | $             | 169,600,000 |   |
|                                                                      |       | Place L.L.C.                     |       |                            |       | Arlington, VA             |       |          |        |
| VA082/161                                                                 |       | Tishman Speyer Archstone-Smith   |       | Gallery at Rosslyn              |       | 1800 N. Oak Street        |       | $             | 130,200,000 |   |
|                                                                      |       | Gallery at Rosslyn, L.L.C.       |       |                            |       | Arlington, VA             |       |          |        |
| DC017/181                                                                 |       | Smith Property Holdings Six      |       | Connecticut Heights             |       | 4850 Connecticut Ave., NW |       | $             | 130,200,000 |   |
|                                                                      |       | (D.C.) L.P.                      |       |                            |       | Washington, DC            |       |          |        |
| DC014/183                                                                 |       | Smith Property Holdings 4411     |       | Park Connecticut                |       | 4411 Connecticut Ave., NW |       | $             | 65,400,000  |   |
|                                                                      |       | Connecticut L.L.C.               |       |                            |       | Washington, DC            |       |          |        |
| **COLLATERAL POOL 4: $963,497,640 Initial Loan to  such Collateral Pool** |       |                             |       |
| MA038/4                                                                   |       | Smith Property Holdings          |       | Archstone Cronin ́s Landing |       | 25 Crescent Street        |       | $             | 128,640,000 |   |
|                                                                      |       | Cronin’s Landing L.L.C.     |       |                            |       | Waltham, MA               |       |          |        |
| MA072/10                                                                  |       | ASN CambridgePark LLC            |       | Cambridge Park Place            |       | 30 Cambridge Park Drive   |       | $             | 109,520,000 |   |
|                                                                      |       |                             |       |                            |       | Cambridge, MA             |       |          |        |
| CA119/34                                                                  |       | Tishman Speyer Archstone-Smith   |       | Archstone Marina del Rey        |       | 4157 Via Marina           |       | $             | 215,000,000 |   |
|                                                                      |       | Marina del Rey-I, L.L.C. and     |       |                            |       | Marina del Rey, CA        |       |          |        |
|                                                                      |       | Tishman Speyer Archstone-Smith   |       |                            |       |                      |       |          |        |
|                                                                      |       | Marina del Rey-II, L.L.C.        |       |                            |       |                      |       |          |        |
| CA209/49                                                                  |       | Tishman Speyer Archstone-Smith   |       | Jefferson at Simi Valley        |       | 1579 East Jefferson Way   |       | $             | 158,900,000 |   |
|                                                                      |       | Simi Valley, L.L.C.              |       |                            |       | Simi Valley, CA           |       |          |        |
| DC016/177                                                                 |       | Smith Property Holdings Three    |       | 2501 Porter Street              |       | 2501 Porter Street, NW    |       | $             | 77,200,000  |   |
|                                                                      |       | (D.C.) L.P.                      |       |                            |       | Washington, DC            |       |          |        |
| VA036/146                                                                 |       | Tishman Speyer Archstone-Smith   |       | Archstone Columbia Crossing     |       | 1957 Columbia Pike        |       | $             | 81,100,000  |   |
|                                                                      |       | Columbia Crossing, L.L.C.        |       |                            |       | Arlington, VA             |       |          |        |
| VA061/158                                                                 |       | Courthouse Hill LLC              |       | Arlington Courthouse Place      |       | 1320 N. Veitch Street     |       | $             | 233,600,000 |   |
|                                                                      |       |                             |       |                            |       | Arlington, VA             |       |          |        |
| VA058/159                                                                 |       | Tishman Speyer Archstone-Smith   |       | Arlington Courthouse Plaza      |       | 2250 Clarendon Boulevard  |       | $             | 142,800,000 |   |
|                                                                      |       | Arlington Courthouse Plaza,      |       |                            |       | Arlington, VA             |       |          |        |
|                                                                      |       | L.L.C.                           |       |                            |       |                      |       |          |        |
| VA056/166                                                                 |       | Tishman Speyer Archstone-Smith   |       | Archstone Tysons Corner         |       | 1723 Gosnell Road         |       | $             | 63,000,000  |   |
|                                                                      |       | Tysons Corner, L.L.C.            |       |                            |       | Vienna, VA                |       |          |        |

 

A-2

----

 
| **Property**                                                              | ** ** | ** **                     | ** ** | ** **                    | ** ** | ** **                  | ** ** | **Initial**   | ** **  |
|---------------------------------------------------------------------------|------------|--------------------------------|------------|-------------------------------|------------|-----------------------------|------------|---------------|-------------|
| **Number**                                                                | ** ** | **Borrower Name**              | ** ** | **Mortgaged Property**        | ** ** | **Property Address**        | ** ** | **Valuation** | ** **  |
| VA065/168                                                                 |       | Smith Property Holdings Reston |       | Archstone Reston Landing      |       | 12000 Cameron Pond Drive    |       | $             | 135,500,000 |   |
|                                                                      |       | Landing L.L.C.                 |       |                          |       | Reston, VA                  |       |          |        |
| DC008/178                                                                 |       | Smith Property Holdings Alban  |       | Alban Towers                  |       | 3700 Massachusetts Ave., NW |       | $             | 95,900,000  |   |
|                                                                      |       | Towers, L.L.C. and Alban       |       |                          |       | Washington, DC              |       |          |        |
|                                                                      |       | Towers, L.L.C.                 |       |                          |       |                        |       |          |        |
| DC006/179                                                                 |       | Smith Property Holdings Three  |       | Calvert Woodley               |       | 2601 Woodley Place, NW      |       | $             | 43,700,000  |   |
|                                                                      |       | (D.C.) L.P.                    |       |                          |       | Washington, DC              |       |          |        |
| DC007/180                                                                 |       | Smith Property Holdings Three  |       | Cleveland House               |       | 2727 29th Street, NW        |       | $             | 71,800,000  |   |
|                                                                      |       | (D.C.) L.P.                    |       |                          |       | Washington, DC              |       |          |        |
| **COLLATERAL POOL 5: $297,592,066 Initial Loan to  such Collateral Pool** |       |                           |       |
| CA109/31                                                                  |       | Tishman Speyer Archstone-Smith |       | Archstone Glendale            |       | 201 West Fairview           |       | $             | 70,400,000  |   |
|                                                                      |       | Glendale, L.L.C.               |       |                          |       | Glendale, CA                |       |          |        |
| CA091/37                                                                  |       | ASN Pasadena LLC               |       | Archstone Pasadena            |       | 25 South Oak Knoll Avenue   |       | $             | 58,400,000  |   |
|                                                                      |       |                           |       |                          |       | Pasadena, CA                |       |          |        |
| CA181/44                                                                  |       | ASN Thousand Oaks Plaza LLC    |       | Archstone Thousand Oaks Plaza |       | 235 N. Conejo School Road   |       | $             | 56,300,000  |   |
|                                                                      |       |                           |       |                          |       | Thousand Oaks, CA           |       |          |        |
| CA004/97                                                                  |       | Tishman Speyer Archstone-Smith |       | Archstone Walnut Creek        |       | 1445 Treat Boulevard        |       | $             | 123,700,000 |   |
|                                                                      |       | Walnut Creek, L.L.C.           |       |                          |       | Walnut Creek, CA            |       |          |        |
| CA040/99                                                                  |       | Tishman Speyer Archstone-Smith |       | Archstone Willow Glen         |       | 3200 Rublino Drive          |       | $             | 127,000,000 |   |
|                                                                      |       | Willow Glen, L.L.C.            |       |                          |       | San Jose, CA                |       |          |        |
| CA018/102                                                                 |       | Tishman Speyer Archstone-Smith |       | Archstone Harborside          |       | 11 Avocet Drive             |       | $             | 45,000,000  |   |
|                                                                      |       | Harborside, L.L.C.             |       |                          |       | Redwood City, CA            |       |          |        |
| **COLLATERAL POOL 6: $945,336,832 Initial Loan to  such Collateral Pool** |       |                           |       |
| CA213/47                                                                  |       | ASN Ventura LLC; ASN Ventura   |       | Pacific Strands               |       | 930 Pacific Strand Court    |       | $             | 56,300,000  |   |
|                                                                      |       | Two LLC and ASN Ventura Four   |       |                          |       | Ventura, CA                 |       |          |        |
|                                                                      |       | LLC                            |       |                          |       |                        |       |          |        |
| CA210/101                                                                 |       | ASN Emeryville LLC             |       | Archstone Emeryville          |       | 6401 Shellmound Street      |       | $             | 62,500,000  |   |
|                                                                      |       |                           |       |                          |       | Emeryville, CA              |       |          |        |
| VA018/176                                                                 |       | ASN Fairchase LLC and          |       | Archstone Fairchase           |       | 4411 Dixie Hill Road        |       | $             | 120,000,000 |   |
|                                                                      |       | Tishamn Speyer Archstone-Smith |       |                          |       | Fairfax, VA                 |       |          |        |
|                                                                      |       | Fairchase II, L.L.C.           |       |                          |       |                        |       |          |        |
| CA175/198                                                                 |       | ASN Mountain View LLC          |       | Oakwood Mountain View         |       | 555 W. Middlefield Road     |       | $             | 96,000,000  |   |
|                                                                      |       |                           |       |                          |       | Mountain View, CA           |       |          |        |
| CA170/199                                                                 |       | Tishman Speyer Archstone-Smith |       | Oakwood San Francisco         |       | 900 Powell Street           |       | $             | 6,375,000   |   |
|                                                                      |       | Oakwood San Francisco, L.L.C.  |       |                          |       | San Francisco, CA           |       |          |        |
| CA169/200                                                                 |       | ASN San Jose LLC               |       | Oakwood San Jose South        |       | 700 S. Saratoga Avenue      |       | $             | 154,000,000 |   |
|                                                                      |       |                           |       |                          |       | San Jose, CA                |       |          |        |
| MA055/201                                                                 |       | Tishman Speyer Archstone-Smith |       | Oakwood Boston                |       | 131 State Street            |       | $             | 51,430,000  |   |
|                                                                      |       | Oakwood Boston, L.L.C.         |       |                          |       | Boston, MA                  |       |          |        |
| IL029/202                                                                 |       | ASN Oakwood Chicago LLC        |       | Oakwood Chicago               |       | 77 West Huron Street        |       | $             | 81,000,000  |   |
|                                                                      |       |                           |       |                          |       | Chicago, IL                 |       |          |        |
| CA171/203                                                                 |       | ASN Long Beach LLC             |       | Oakwood Long Beach Marina     |       | 333 First Street            |       | $             | 180,220,000 |   |
|                                                                      |       |                           |       |                          |       | Seal Beach, CA              |       |          |        |
| CA172/204                                                                 |       | ASN Marina LLC                 |       | Oakwood Marina Del Rey        |       | 4111 Via Marina             |       | $             | 105,000,000 |   |
|                                                                      |       |                           |       |                          |       | Marina Del Rey, CA          |       |          |        |
| CA173/205                                                                 |       | Tishman Speyer Archstone-Smith |       | Oakwood Toluca Hills          |       | 3600-3720 Barham Blvd.      |       | $             | 359,100,000 |   |
|                                                                      |       | Oakwood Toluca Hills, L.L.C.   |       |                          |       | Los Angeles, CA             |       |          |        |
| CA174/206                                                                 |       | ASN Woodland Hills East LLC    |       | Oakwood Woodland Hills        |       | 22122 Victory Boulevard     |       | $             | 263,290,000 |   |
|                                                                      |       |                           |       |                          |       | Woodland Hills, CA          |       |          |        |
| WA041/207                                                                 |       | ASN Bellevue LLC               |       | Oakwood Bellevue              |       | 938 110th Avenue NE         |       | $             | 55,100,000  |   |
|                                                                      |       |                           |       |                          |       | Bellevue, WA                |       |          |        |
| WA042/208                                                                 |       | ASN Seattle LLC                |       | Oakwood Seattle               |       | 312 2nd Avenue W            |       | $             | 41,300,000  |   |
|                                                                      |       |                           |       |                          |       | Seattle, WA                 |       |          |        |
| VA095/210                                                                 |       | Tishman Speyer Archstone-Smith |       | Oakwood Arlington             |       | 1550 Clarendon Boulevard    |       | $             | 59,100,000  |   |
|                                                                      |       | Oakwood Arlington, L.L.C.      |       |                          |       | Arlington, VA               |       |          |        |
| PA002/212                                                                 |       | Tishman Speyer Archstone-Smith |       | Oakwood Philadelphia          |       | 110-116 S. 16th Street      |       | $             | 16,150,000  |   |
|                                                                      |       | Oakwood Philadelphia, L.L.C.   |       |                          |       | Philadelphia, PA            |       |          |        |

 

A-3

----

 
| **Property**                                                                | ** ** | ** **                       | ** ** | ** **                     | ** ** | ** **                 | ** ** | **Initial**   | ** **  |
|-----------------------------------------------------------------------------|------------|----------------------------------|------------|--------------------------------|------------|----------------------------|------------|---------------|-------------|
| **Number**                                                                  | ** ** | **Borrower Name**                | ** ** | **Mortgaged Property**         | ** ** | **Property Address**       | ** ** | **Valuation** | ** **  |
| **COLLATERAL POOL 7: $1,060,031,951 Initial Loan  to such Collateral Pool** |       |                             |       |
| MA040/1                                                                     |       | Smith Property Holdings 2000     |       | Archstone 2000 Commonwealth    |       | 2000 Commonwealth Ave.     |       | $             | 75,060,000  |   |
|                                                                        |       | Commonwealth L.L.C.              |       |                           |       | Brighton, MA               |       |          |        |
| MA039/7                                                                     |       | ASN Quincy LLC (f/k/a Smith      |       | Archstone Quincy               |       | 95 W. Squantum Street      |       | $             | 52,180,000  |   |
|                                                                        |       | Property Holdings Sagamore       |       |                           |       | Quincy, MA                 |       |          |        |
|                                                                        |       | Towers L.L.C.)                   |       |                           |       |                       |       |          |        |
| CA212/46                                                                    |       | ASN Ventura Colony LLC (f/k/a    |       | Colony Apartments at Weston    |       | 1024 Britten Lane          |       | $             | 64,700,000  |   |
|                                                                        |       | ASN Ventura Colony 1031,         |       | Village                        |       | Ventura, CA                |       |          |        |
|                                                                        |       | LLC)                             |       |                           |       |                       |       |          |        |
| CA019/213                                                                   |       | ASN Long Beach Harbor LLC        |       | Archstone Long Beach Harbor    |       | 1613 Ximeno Avenue         |       | $             | 37,500,000  |   |
|                                                                        |       | (f/k/a ASN Long Beach Harbor     |       | (Bellamar)                     |       | Long Beach, CA             |       |          |        |
|                                                                        |       | 1031, LLC)                       |       |                           |       |                       |       |          |        |
| CA188/84                                                                    |       | ASN Fremont LLC                  |       | Archstone Fremont Center       |       | 39410 Civic Center Drive   |       | $             | 93,600,000  |   |
|                                                                        |       |                             |       |                           |       | Fremont, CA                |       |          |        |
| CA187/96                                                                    |       | ASN Walnut Creek Station LLC     |       | Archstone Walnut Creek Station |       | 121 Roble Road             |       | $             | 85,100,000  |   |
|                                                                        |       |                             |       |                           |       | Walnut Creek, CA           |       |          |        |
| DC005/182                                                                   |       | Smith Property Holdings One      |       | Corcoran House                 |       | 1616 18th Street, NW       |       | $             | 30,200,000  |   |
|                                                                        |       | (D.C.) L.P.                      |       |                           |       | Washington, DC             |       |          |        |
| VA039/148                                                                   |       | Tishman Speyer Archstone-Smith   |       | Crystal Place                  |       | 1801 Crystal Drive         |       | $             | 61,500,000  |   |
|                                                                        |       | Crystal Place, L.L.C.            |       |                           |       | Arlington, VA              |       |          |        |
| VA041/149                                                                   |       | Smith Property Holdings Crystal  |       | Crystal Plaza                  |       | 2111 Jefferson Davis Hwy.  |       | $             | 189,700,000 |   |
|                                                                        |       | Plaza L.L.C.                     |       |                           |       | Arlington, VA              |       |          |        |
| VA062/155                                                                   |       | Smith Property Holdings          |       | The Buchanan                   |       | 320 23rd Street South      |       | $             | 202,400,000 |   |
|                                                                        |       | Buchanan House L.L.C.            |       |                           |       | Arlington, VA              |       |          |        |
| VA091/162                                                                   |       | Tishman Speyer Archstone-Smith   |       | Gallery at Virginia Square     |       | 901 N. Nelson Street       |       | $             | 103,000,000 |   |
|                                                                        |       | Gallery at Virginia Square I,    |       |                           |       | Arlington, VA              |       |          |        |
|                                                                        |       | L.L.C.; Tishman Speyer           |       |                           |       |                       |       |          |        |
|                                                                        |       | Archstone-Smith Gallery at       |       |                           |       |                       |       |          |        |
|                                                                        |       | Virginia Square II, L.L.C.;      |       |                           |       |                       |       |          |        |
|                                                                        |       | Tishman Speyer Archstone-Smith   |       |                           |       |                       |       |          |        |
|                                                                        |       | Gallery at Virginia Square III,  |       |                           |       |                       |       |          |        |
|                                                                        |       | L.L.C.                           |       |                           |       |                       |       |          |        |
| VA059/163                                                                   |       | Tishman Speyer Archstone-Smith   |       | Lincoln Towers                 |       | 850 N. Randolph Street     |       | $             | 290,800,000 |   |
|                                                                        |       | Lincoln Tower, L.L.C.            |       |                           |       | Arlington, VA              |       |          |        |
| VA081/164                                                                   |       | ASN Monument Park LLC            |       | Archstone Monument Park        |       | 4457 Oakdale Crescent Ct.  |       | $             | 145,500,000 |   |
|                                                                        |       |                             |       |                           |       | Fairfax, VA                |       |          |        |
| VA057/170                                                                   |       | Tishman Speyer Archstone-Smith   |       | Charter Oak                    |       | 11637 Charter Oak Court    |       | $             | 51,000,000  |   |
|                                                                        |       | Charter Oak, L.L.C.              |       |                           |       | Reston, VA                 |       |          |        |
| DC018/185                                                                   |       | Smith Property Holdings          |       | The Consulate                  |       | 2950 Van Ness Street, NW   |       | $             | 94,400,000  |   |
|                                                                        |       | Consulate L.L.C.                 |       |                           |       | Washington, DC             |       |          |        |
| DC010/187                                                                   |       | Smith Property Holdings One      |       | The Statesman                  |       | 2020 F Street, NW          |       | $             | 84,400,000  |   |
|                                                                        |       | (D.C.) L.P.                      |       |                           |       | Washington, DC             |       |          |        |
| VA047/209                                                                   |       | Tishman Speyer Archstone-Smith   |       | Gateway Place                  |       | 400 South 15th Street      |       | $             | 52,400,000  |   |
|                                                                        |       | Gateway Place, L.L.C.            |       |                           |       | Arlington, VA              |       |          |        |
| **COLLATERAL POOL 8: $209,453,317 Initial Loan to  such Collateral Pool**   |       |                             |       |
| CA023/13                                                                    |       | Tishman Speyer Archstone-Smith   |       | Archstone Sierra del Oro       |       | 1456 Serfas Club Drive     |       | $             | 68,000,000  |   |
|                                                                        |       | Sierra del Oro, L.L.C.           |       |                           |       | Corona, CA                 |       |          |        |
| WA044/106                                                                   |       | Tishman Speyer Archstone-Smith   |       | Archstone Cedar River          |       | 15205 140th Way SE         |       | $             | 29,700,000  |   |
|                                                                        |       | Cedar River, L.L.C.              |       |                           |       | Renton, WA                 |       |          |        |
| VA094/167                                                                   |       | ASN Dulles LLC                   |       | Archstone Dulles               |       | 13800 Jefferson Park Drive |       | $             | 118,000,000 |   |
|                                                                        |       |                             |       |                           |       | Herndon, VA                |       |          |        |
| MD042/173                                                                   |       | Tishman Speyer Archstone-Smith   |       | The Meadows at Russett         |       | 8185 Scenic Meadows Drive  |       | $             | 62,000,000  |   |
|                                                                        |       | Meadows at Russett I, L.L.C. and |       |                           |       | Laurel, MD                 |       |          |        |
|                                                                        |       | Tishman Speyer Archstone-Smith   |       |                           |       |                       |       |          |        |
|                                                                        |       | Meadows at Russett II, L.L.C.    |       |                           |       |                       |       |          |        |
|                                                                        |       | IDOT Guarantor: ASN Meadows      |       | The Meadows at Russett         |       | 8185 Scenic Meadows Drive  |       |          |        |
|                                                                        |       | at Russett I LLC and ASN         |       |                           |       | Laurel, MD                 |       |          |        |
|                                                                        |       | Meadows at Russett II LLC        |       |                           |       |                       |       |          |        |

 

A-4

----

 
| **Property**                                                                | ** ** | ** **                        | ** ** | ** **                | ** ** | ** **                       | ** ** | **Initial**   | ** **  |
|-----------------------------------------------------------------------------|------------|-----------------------------------|------------|---------------------------|------------|----------------------------------|------------|---------------|-------------|
| **Number**                                                                  | ** ** | **Borrower Name**                 | ** ** | **Mortgaged Property**    | ** ** | **Property Address**             | ** ** | **Valuation** | ** **  |
| MD040/174                                                                   |       | Tishman Speyer Archstone-Smith    |       | Apartments at Sunset      |       | 1000 Columbine Drive             |       | $             | 61,000,000  |   |
|                                                                        |       | Sunset, L.L.C.                    |       |                      |       | Frederick, MD                    |       |          |        |
|                                                                        |       | IDOT Guarantor: ASN Sunset        |       | Apartments at Sunset      |       | 1000 Columbine Drive             |       |          |        |
|                                                                        |       | LLC                               |       |                      |       | Frederick, MD                    |       |          |        |
| **COLLATERAL POOL 9: $1,126,630,452 Initial Loan  to such Collateral Pool** |       |                              |       |
| NY027/61                                                                    |       | ASN Murray Hill LLC               |       | Archstone Murray Hill     |       | 240 E. 40th Street               |       | $             | 238,800,000 |   |
|                                                                        |       |                              |       |                      |       | New York, NY                     |       |          |        |
| NY030/63                                                                    |       | ASN Key West LLC                  |       | Key West                  |       | 750 Columbus Avenue              |       | $             | 174,100,000 |   |
|                                                                        |       |                              |       |                      |       | New York, NY                     |       |          |        |
| NY024/64                                                                    |       | ASN Westmont LLC                  |       | The Westmont              |       | 730 Columbus Avenue              |       | $             | 133,200,000 |   |
|                                                                        |       |                              |       |                      |       | New York, NY                     |       |          |        |
| CA220/80                                                                    |       | ASN Encinitas LLC                 |       | Poinsettia Ridge          |       | 1100 Garden View Road            |       | $             | 36,500,000  |   |
|                                                                        |       |                              |       |                      |       | San Diego, CA                    |       |          |        |
| DC011/189                                                                   |       | Smith Property Holdings Van       |       | Tunlaw Park               |       | 3850 Tunlaw Road, NW             |       | $             | 30,100,000  |   |
|                                                                        |       | Ness L.P.                         |       |                      |       | Washington, DC                   |       |          |        |
| VA048/144                                                                   |       | Tishman Speyer Archstone-Smith    |       | Archstone Newport Village |       | 4757 W. Braddock Road            |       | $             | 236,400,000 |   |
|                                                                        |       | Newport Village I and II, L.L.C.  |       | (Phase I, II and III)     |       | Alexandria, VA                   |       |          |        |
|                                                                        |       | and Tishman Speyer Archstone-     |       |                      |       |                             |       |          |        |
|                                                                        |       | Smith Newport Village III, L.L.C. |       |                      |       |                             |       |          |        |
| VA037/147                                                                   |       | Smith Property Holdings Crystal   |       | Crystal House             |       | 1900 S. Eads Street              |       | $             | 226,200,000 |   |
|                                                                        |       | Houses L.L.C.                     |       |                      |       | Arlington, VA                    |       |          |        |
| VA042/150                                                                   |       | Tishman Speyer Archstone-Smith    |       | Crystal Square            |       | 1515 Jefferson Davis Hwy.        |       | $             | 126,600,000 |   |
|                                                                        |       | Crystal Place, L.L.C.             |       |                      |       | Arlington, VA                    |       |          |        |
| VA043/151/                                                                  |       | Tishman Speyer Archstone-Smith    |       | Crystal Towers/Lofts 590  |       | 1600 S. Eads Street; 590 S. 15th |       | $             | 401,000,000 |   |
| 152                                                                         |       | Crystal Towers & Lofts 590,   |       |                      |       | Street                           |       |          |        |
|                                                                        |       | L.L.C.                            |       |                      |       | Arlington, VA                    |       |          |        |
| VA055/154                                                                   |       | Tishman Speyer Archstone-Smith    |       | The Bennington            |       | 1201 S. Eads Street              |       | $             | 97,600,000  |   |
|                                                                        |       | Bennington, L.L.C.                |       |                      |       | Arlington, VA                    |       |          |        |
| DC004/184                                                                   |       | Smith Property Holdings Five      |       | The Albemarle             |       | 4501 Connecticut Ave., NW        |       | $             | 77,000,000  |   |
|                                                                        |       | (D.C.) L.P.                       |       |                      |       | Washington, DC                   |       |          |        |
| DC009/188                                                                   |       | Smith Property Holdings Van       |       | Tunlaw Gardens            |       | 3903 Davis Place, NW             |       | $             | 33,300,000  |   |
|                                                                        |       | Ness L.P.                         |       |                      |       | Washington, DC                   |       |          |        |
| DC019/190                                                                   |       | Smith Property Holdings Van       |       | Van Ness South            |       | 3003 Van Ness Street, NW         |       | $             | 201,200,000 |   |
|                                                                        |       | Ness L.P.                         |       |                      |       | Washington, DC                   |       |          |        |

 

A-5

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**EXHIBITB TO MASTER CREDIT FACILITY AGREEMENT**

 

**FIXEDLOAN NOTE(Collateral Pool      )**

 
| US **[**$                         **]** |   | [                             ,       ] |
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

FOR VALUERECEIVED, the undersigned (“**Borrower**”)jointly and severally (if more than one) promises to pay to the order of (a) **LEHMAN BROTHERS HOLDINGS INC.**, a Delawarecorporation, (b) **BANK OF AMERICA, N.A.,**anational banking association, and (c) **BARCLAYSCAPITAL REAL ESTATE INC.**, a Delaware corporation, their successors,transferees and assigns (individually and collectively, “**Lender**”) the principal sum of                                    AND NO/100 DOLLARS (US $              ),with interest accruing on the unpaid principal balance from the date ofdisbursement until fully paid at the annual Interest Rate. 

 

This Note isexecuted and delivered by Borrower pursuant to that certain Master CreditFacility Agreement, dated as of October 5, 2007 by and between Borrower, Lenderand others (as amended from time to time, the “**Master Agreement**”), to evidence the obligation of Borrowerto repay a Fixed Loan made by Lender to Borrower (Collateral Pool Borrower      ) in accordance with the terms of theMaster Agreement.  This Note is entitledto the benefit and security of the Loan Documents provided for in the MasterAgreement, to which reference is hereby made for a statement of all of theterms and conditions under which the Fixed Loan evidenced hereby is made.  All references to Loan Documents and SecurityDocuments herein shall be with respect to Collateral Pool       (the “**Collateral Pool**”) asfurther identified in the Master Agreement. 

 

**Section1.              Defined Terms.**  In addition to defined terms found elsewherein this Note, as used in this Note, the following definitions shall apply: 

 

**AmortizationPeriod**:  N/A.

 

**BusinessDay**:**** Any day other than a Saturday, Sunday or anyother day on which Lender is not open for business.

 

**DebtService Amounts**: Amounts payable under this Note, the Security Instrument or any otherLoan Document. 

 

**DefaultRate**:  A rateequal to the lesser of four (4) percentage points above the Interest Rate orthe maximum interest rate which may be collected from Borrower under applicablelaw. 

 

**DisbursementDate:**  The dateof disbursement of the Loan proceeds hereunder. 

 

**FirstPayment Date**:**** The first day of December, 2007. 

 

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**Indebtedness**:** **Theprincipal of, interest on, or any other amounts due at any time under, thisNote, the Security Instrument or any other Loan Document, including prepaymentpremiums, late charges, default interest, and advances to protect the securityof the Security Instrument under Section 12 of the Security Instrument. 

 

**InterestRate**:  The annualrate of                               percent (      %).

 

**Lender**:** **Theholder of this Note.

 

**Loan**:  The loan evidenced by this Note.

 

**LoanTerm**:                                           months. 

 

**MaturityDate**:**** The first day of                                     ,          , **[November, 2012/November, 2014/November, 2017]**orany earlier date on which the unpaid principal balance of this Note becomes dueand payable by acceleration or otherwise. 

 

**SecurityInstrument**: Individually and collectively, various multifamily mortgages, deeds tosecure debt or deeds of trust described in the Master Agreement comprisingCollateral Pool      . 

 

**YieldMaintenance Period Term or Prepayment Premium Period Term**:  **[54/78/114]**months. 

 

**YieldMaintenance Period End Date or Prepayment Premium Period End Date**:  The last day of **[April, 2012/April, 2014/April, 2017]**. 

 

Event of Default and other capitalized termsused but not defined in this Note shall have the meanings given to such termsin the Master Agreement or, if not defined in the Master Agreement, as definedin the Security Instrument.

 

**Section2.              Address for Payment.**  All payments due under this Note shall bepayable at c/o Lehman Brothers Holdings Inc., 399 Park Avenue, New York, NewYork 10022, or such other place as may be designated by written notice toBorrower from or on behalf of Lender. 

 

**Section3.              Payment of Principal andInterest.** Principal and interest shall be paid as follows: 

 

(a)           **ShortMonth Interest.**  Unlessdisbursement of principal is made by Lender to Borrower on the first day of themonth, interest for the period beginning on the Disbursement Date and ending onand including the last day of the month in which such disbursement is madeshall be payable simultaneously with the execution of this Note.

 

(b)           **InterestComputation Actual/360.** Interest under this Note shall be computed on the basis of a 360-dayyear.  The amount of each monthly paymentmade by 

 

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Borrower pursuant to Paragraph 3(c) belowwill be based on the actual number of calendar days during such month and shallbe calculated by multiplying the unpaid principal balance of this Note by theper annum interest rate, dividing the product by 360 and multiplying thequotient by the actual number of days elapsed during the month.  Borrower understands that the amount ofinterest for each month will vary depending on the actual number of calendardays during such month. 

 

(c)           **Monthly Installments.   **Theamount of                                                                                Dollars (US $                                               )shall be payable on the First Payment Date and thereafter consecutive monthlyinstallments of interest only, shall be payable as follows: 

 

(i)                                                                                                                                  Dollars (US $                                  ),shall be payable on the first day of each month during the term hereof whichfollows a 28-day month; 

 

(ii)                                                                                                                               Dollars (US$                               ),shall be payable on the first day of each month during the term hereof whichfollows a 29-day month, 

 

(iii)                                                                                                                            Dollars (US$                              ),shall be payable on the first day of each month during the term hereof whichfollows a 30-day month, or 

 

(iv)                                                                                                                            Dollars (US $                             ),shall be payable on the first day of each month during the term hereof whichfollows a 31-day month, 

 

until the entire unpaid principal balanceevidenced by this Note is fully paid. The entire principal balance and accrued but unpaid interest shall bedue and payable on the Maturity Date. The unpaid principal balance shall continue to bear interest after theMaturity Date at the Default Rate set forth in this Note until and includingthe date on which it is paid in full.

 

(d)           **PaymentsBefore Due Date.**  Anyregularly scheduled monthly installment of interest that is received by Lenderbefore the date it is due shall be deemed to have been received on the due datesolely for the purpose of calculating interest due. 

**Section4.              Application ofPayments. **If atany time Lender receives, from Borrower or otherwise, any amount applicable tothe Indebtedness that is less than all amounts due and payable at such time,Lender may apply that payment to amounts then due and payable in any manner andin any order determined by Lender, in Lender’s discretion.  Borrower agrees that neither Lender’sacceptance of a payment from Borrower in an amount that is less than all 

 

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amounts then due and payable nor Lender’sapplication of such payment shall constitute or be deemed to constitute eithera waiver of the unpaid amounts or an accord and satisfaction. 

 

**Section5.              Security. **The Indebtedness issecured, among other things, by the Security Instrument, and reference is madeto the Security Instrument for other rights of Lender concerning the collateralfor the Indebtedness. 

 

**Section6.              Acceleration. **If an Event ofDefault has occurred and is continuing, the entire unpaid principal balance,any accrued interest, the prepayment premium payable under Section 10,if any, and all other amounts payable under this Note and any other LoanDocument shall at once become due and payable, at the option of Lender, withoutany prior notice to Borrower.  Lender mayexercise this option to accelerate regardless of any prior forbearance. 

** **

**Section7.              Late Charge.  **Subject to theprovisions of Section 9.01(b) of the Master Agreement, if any monthlyinstallment due hereunder is not received by Lender on or before the tenth (10th)day of each month or if any other amount payable under this Note or under theSecurity Instrument or any other Loan Document is not received by Lender withinten (10) days after the date such amount is due, counting from and includingthe date such amount is due, Borrower shall pay to Lender, immediately andwithout demand by Lender, a late charge equal to five percent (5%) of suchmonthly installment or other amount due (provided that in connection with thepayment in full on the Maturity Date, such 10-day period shall be increased tofifteen (15) days and such late charge shall equal one percent (1%) of suchpayment or other amount due).  Borroweracknowledges that its failure to make timely payments will cause Lender toincur additional expenses in servicing and processing the Loan and that it isextremely difficult and impractical to determine those additionalexpenses.  Borrower agrees that the latecharge payable pursuant to this Paragraph represents a fair and reasonableestimate, taking into account all circumstances existing on the date of thisNote, of the additional expenses Lender will incur by reason of such latepayment.  The late charge is payable inaddition to, and not in lieu of, any interest payable at the Default Ratepursuant to Section 8. 

 

**Section8.              Default Rate. **So long as anymonthly installment or any other payment due under this Note remains past duefor thirty (30) days or more, interest under this Note shall accrue on theunpaid principal balance from the earlier of the due date of the first unpaidmonthly installment or other payment due, as applicable, at the DefaultRate.  If the unpaid principal balanceand all accrued interest are not paid in full on the Maturity Date, the unpaidprincipal balance and all accrued interest shall bear interest from theMaturity Date at the Default Rate.  Borroweralso acknowledges that its failure to make timely payments will cause Lender toincur additional expenses in servicing and processing the Loan, that, duringthe time that any monthly installment or payment under this Note is delinquentfor more than thirty (30) days, Lender will incur additional costs and expensesarising from its loss of the use of the money due and from the adverse impacton Lender’s ability to meet its other obligations and to take advantage ofother investment opportunities, and that it is extremely difficult andimpractical to determine those additional costs and expenses.  Borrower also acknowledges that, during thetime that any monthly installment or other payment due under this Note isdelinquent for more than thirty (30) days, Lender’s risk of nonpayment of thisNote will be materially increased and Lender is entitled to be compensated forsuch increased risk.  Borrower agreesthat the increase 

 

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in the rate of interest payable under thisNote to the Default Rate represents a fair and reasonable estimate, taking intoaccount all circumstances existing on the date of this Note, of the additionalcosts and expenses Lender will incur by reason of Borrower’s delinquent paymentand the additional compensation Lender is entitled to receive for the increasedrisks of nonpayment associated with a delinquent advance. 

 

**Section9.              Limits on PersonalLiability.**  Theprovisions of Article 12 of the Master Agreement (entitled “Limits onPersonal Liability”) are hereby incorporated into this Note by thisreference to the fullest extent as if the text of such Article were set forthin its entirety herein. 

 

**Section10.            Voluntary and InvoluntaryPrepayments.**

 

(a)           A prepayment premium shall be payablein connection with any prepayment made under this Note as provided below: 

Borrower mayvoluntarily prepay all (or a portion) of the unpaid principal balance of thisNote only on the last calendar day of a calendar month (the “**Last Day of the Month**”) and only ifBorrower has complied with all of the following: 

 

(i)            Borrower must give Lender at leastthirty (30) days (if given via U.S. Postal Service) or twenty (20) days (ifgiven via facsimile, email or overnight courier), but not more than sixty (60)days, prior written notice of Borrower’s intention to make a prepayment (the “**Prepayment Notice**”).  The Prepayment Notice shall be given inwriting (via facsimile, email, U.S. Postal Service or overnight courier) andaddressed to Lender.  The PrepaymentNotice shall include, at a minimum, the Business Day upon which Borrowerintends to make the prepayment (the “**IntendedPrepayment Date**”).

 

(ii)           Borrower acknowledges that the Lenderis not required to accept any voluntary prepayment of this Note on any dayother than the Last Day of the Month even if Borrower has given a PrepaymentNotice with an Intended Prepayment Date other than the Last Day of the Month orif the Last Day of the Month is not a Business Day.  Therefore, even if Lender accepts a voluntaryprepayment on any day other than the Last Day of the Month, for all purposes(including the accrual of interest and the calculation of the prepaymentpremium), any prepayment received by Lender on any day other than the Last Dayof the Month shall be deemed to have been received by Lender on the Last Day ofthe Month and any prepayment calculation will include interest to and includingthe Last Day of the Month in which such prepayment occurs.  If the Last Day of the Month is not aBusiness Day, then the Borrower must make the payment on the Business Dayimmediately preceding the Last Day of the Month. 

 

(iii)          Any prepayment shall be made by paying(A) the amount of principal being prepaid, (B) all accrued interest (calculatedto the Last Day of the Month), (C) all other sums due Lender at the time ofsuch prepayment, and (D) the prepayment premium calculated pursuant to ScheduleA.

 

(iv)          If, for any reason, Borrower fails toprepay this Note (A) within five (5) Business Days after the Intended PrepaymentDate or (B) if the prepayment occurs in a month other than the month stated inthe original Prepayment Notice, then Lender shall have the 

 

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right, but not the obligation, to recalculatethe prepayment premium based upon the date that Borrower actually prepays thisNote and to make such calculation as described in Schedule A attachedhereto.  For purposes of suchrecalculation, such new prepayment date shall be deemed the “**Intended Prepayment Date**.”

 

(v)           Upon Lender’s exercise of any rightof acceleration under this Note, Borrower shall pay to Lender, in addition tothe entire unpaid principal balance of this Note outstanding at the time of theacceleration, (i) all accrued interest and all other sums due Lender under thisNote and the other Loan Documents, and (ii) the prepayment premium calculatedpursuant to Schedule A. 

(vi)          Any application by Lender of anycollateral or other security to the repayment of any portion of the unpaidprincipal balance of this Note prior to the Maturity Date and in the absence ofacceleration shall be deemed to be a partial prepayment by Borrower, requiringthe payment to Lender by Borrower of a prepayment premium.  The amount of any partial prepayment shall becomputed so as to provide to Lender a prepayment premium computed pursuant to ScheduleA without Borrower having to pay out-of-pocket additional amounts. 

 

(b)           Notwithstanding the provisions of Section10(a), no prepayment premium shall be payable (1) with respect to anyprepayment occurring as a result of the application of any insurance proceedsor condemnation award under the Security Instrument, or (2) as provided insubparagraph (b) of Schedule A. 

 

(c)           Schedule A is herebyincorporated by reference into this Note. 

 

(d)           Any permitted or required prepaymentof less than the entire unpaid principal balance of this Note shall not extendor postpone the due date of any subsequent monthly installments, provided theamount of each monthly installment shall be recomputed to reflect suchprepayment of the Indebtedness. 

 

(e)           Borrower recognizes that anyprepayment of the unpaid principal balance of this Note, whether voluntary orinvoluntary or resulting from an Event of Default by Borrower, will result inLender’s incurring loss, including reinvestment loss, additional expense andfrustration or impairment of Lender’s ability to meet its commitments to thirdparties.  Borrower agrees to pay toLender upon demand damages for the detriment caused by any prepayment, and agreesthat it is extremely difficult and impractical to ascertain the extent of suchdamages.  Borrower therefore acknowledgesand agrees that the formula for calculating prepayment premiums set forth on ScheduleA represents all of the damages Lender will incur because of a prepayment. 

 

(f)            Borrower further acknowledges thatthe prepayment premium provisions of this Note are a material part of theconsideration for the Loan evidenced by this Note, and acknowledges that theterms of this Note are in other respects more favorable to Borrower as a resultof Borrower’s voluntary agreement to the prepayment premium provisions.

 

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**Section11.            Costs and Expenses.**Borrowershall pay on demand all reasonable expenses and costs, including reasonablefees and out-of-pocket expenses of attorneys and expert witnesses and costs ofinvestigation, actually incurred by Lender as a result of any Event of Defaultunder this Note or in connection with efforts to collect any amount due underthis Note, or to enforce the provisions of any of the other Loan Documents,including those incurred in post-judgment collection efforts and in anybankruptcy proceeding (including any action for relief from the automatic stayof any bankruptcy proceeding) or judicial or non-judicial foreclosureproceeding.

 

**Section12.            Forbearance.**Anyforbearance by Lender in exercising any right or remedy under this Note, theSecurity Instrument, or any other Loan Document or otherwise afforded byapplicable law, shall not be a waiver of or preclude the exercise of that orany other right or remedy. The acceptance by Lender of any payment after thedue date of such payment, or in an amount which is less than the requiredpayment, shall not be a waiver of Lender’s right to require prompt payment whendue of all other payments or to exercise any right or remedy with respect toany failure to make prompt payment. Enforcement by Lender of any security forBorrower’s obligations under this Note shall not constitute an election byLender of remedies so as to preclude the exercise of any other right or remedyavailable to Lender.

 

**Section13.            Waivers.**Exceptas expressly provided in this Note or the Master Agreement, presentment demand,notice of dishonor, protest, notice of acceleration, notice of intent to demandor accelerate payment or maturity, presentment for payment, notice ofnonpayment, grace, and diligence in collecting the Indebtedness are waived byBorrower and all endorsers and guarantors of this Note and all other thirdparty obligors.

 

**Section14.            Loan Charges.**Borroweragrees to pay an effective rate of interest equal to the sum of the InterestRate provided for in this Note and any additional rate of interest resultingfrom any other charges of interest or in the nature of interest paid or to bepaid in connection with the Loan evidenced by this Note and any other fees oramounts to be paid by Borrower pursuant to any of the other Loan Documents. Neitherthis Note nor any of the other Loan Documents shall be construed to create acontract for the use, forbearance or detention of money requiring payment ofinterest at a rate greater than the maximum interest rate permitted to becharged under applicable law. If any applicable law limiting the amount ofinterest or other charges permitted to be collected from Borrower in connectionwith the Loan is interpreted so that any interest or other charge provided forin any Loan Document, whether considered separately or together with othercharges provided for in any other Loan Document, violates that law, andBorrower is entitled to the benefit of that law, that interest or charge ishereby reduced to the extent necessary to eliminate that violation. Theamounts, if any, previously paid to Lender in excess of the permitted amountsshall be applied by Lender to reduce the unpaid principal balance of this Note.For the purpose of determining whether any applicable law limiting the amountof interest or other charges permitted to be collected from Borrower has beenviolated, all Indebtedness that constitutes interest, as well as all othercharges made in connection with the Indebtedness that constitute interest,shall be deemed to be allocated and spread ratably over the stated term of theNote. Unless otherwise required by applicable law, such allocation andspreading shall be effected in such a manner that the rate of interest socomputed is uniform throughout the stated term of the Note.

 

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**Section15.            Commercial Purpose.**Borrowerrepresents that the Indebtedness is being incurred by Borrower solely for thepurpose of carrying on a business or commercial enterprise, and not for personal,family or household purposes.

 

**Section16.            Counting of Days.**Exceptwhere otherwise specifically provided, any reference in this Note to a periodof “days” means calendar days, not Business Days.

 

**Section17.            Governing Law; Consent toJurisdiction; Waiver of Jury Trial.**The provisions of Section13.06 of the Master Agreement (entitled “Choice of Law; Consent toJurisdiction; Waiver of Jury Trial”) are hereby incorporated into this Noteby this reference to the fullest extent as if the text of such Section were setforth in its entirety herein.

 

**Section18.            Captions.**Thecaptions of the paragraphs of this Note are for convenience only and shall bedisregarded in construing this Note.

 

**Section19.            Notices**.All notices, demands and other communications required or permitted to be givenby Lender to Borrower pursuant to this Note shall be given in accordance with Section13.08 of the Master Agreement.

 

**Section20.            Security for this Note**.The indebtedness evidenced by this Note is secured by other Security Documentsexecuted by Collateral Pool Borrower. Reference is made hereby to the MasterAgreement and the Security Documents for additional rights and remedies ofLender relating to the Indebtedness evidenced by this Note. Each SecurityDocument shall be released in accordance with the provisions of the MasterAgreement and the Security Documents.

 

**Section21.            Loan May Not Be Reborrowed.**Borrower may not re-borrow any amounts under this Notewhich it has previously borrowed and repaid under this Note.

 

**Section22.            Fixed Loan.**ThisNote is issued to evidence a Fixed Loan made in accordance with the terms ofthe Master Agreement.

 

**Section23.            Cross-Default with MasterAgreement**. The occurrence and continuance of an Eventof Default with respect to the Collateral Pool under the Master Agreement shallconstitute an “**Event of Default**”under this Note, and, accordingly, upon the occurrence of an Event of Defaultunder the Master Agreement with respect to the Collateral Pool, the entireprincipal amount outstanding hereunder and accrued interest thereon shall atonce become due and payable, at the option of the holder hereof.

 

*[Remainder of page intentionally left blank.]*

 

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**ATTACHEDSCHEDULES. The following Schedules are attached to this Note:**

 
| x |   | Schedule A  Prepayment Premium (required) |
|---|--------|-------------------------------------------|

 

*[Remainder of page intentionally left blank.]*

 

 

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IN WITNESSWHEREOF, Borrower has signed and delivered this Note under seal or has causedthis Note to be signed and delivered under seal by its duly authorizedrepresentative (which authorized representative shall have no personalliability hereunder). Borrower intends that this Note shall be deemed to besigned and delivered as a sealed instrument.

 

 
|   | **BORROWER**:                                     |
|--------|---------------------------------------------------|
|   |                                              |
|   |                                              |
|   | **[ADD EACH BORROWER FOR SUCH  COLLATERAL POOL]** |

 

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**ALLONGE TO NOTE**

 

 

This Allongeto Note is attached to and forms a part of the Fixed Loan Note (Collateral Pool     ) dated October 5, 2007, in the original principalamount of$                          from Borrower to BANK OF AMERICA, N.A., a national banking association,BARCLAYS CAPITAL REAL ESTATE INC., and LEHMAN BROTHERS HOLDINGS INC., aDelaware corporation.

 

**Payto the order of                                                           ,without recourse**.

 

 
| Dated as of  October 5, 2007 |                                         |
|------------------------------|----------------------------------------------|
|                         |                                         |
|                         |                                         |
|                         | **LENDER**:                                  |
|                         |                                         |
|                         | **BANK OF AMERICA, N.A.,**a national banking |
|                         | association                                  |
|                         |                                         |
|                         |                                         |
|                         | By:                                          |   |   |
|                         | Name:                                        |   |   |
|                         | Title:                                       |   |   |
|                         |                                         |
|                         |                                         |
|                         | **BARCLAYS CAPITAL REAL ESTATE INC.**, a     |
|                         | Delaware  corporation                        |
|                         |                                         |
|                         |                                         |
|                         | By:                                          |   |   |
|                         | Name:                                        |   |   |
|                         | Title:                                       |   |   |
|                         |                                         |
|                              |                                              |  |  |  |  |

 

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**ALLONGE TO NOTE**

 

 

This Allongeto Note is attached to and forms a part of the Fixed Loan Note (Collateral Pool     ) dated October 5, 2007, in the original principalamount of$                                       from Borrower to BANK OF AMERICA, N.A., a national banking association,BARCLAYS CAPITAL REAL ESTATE INC., a Delaware corporation, and LEHMAN BROTHERSHOLDINGS INC., a Delaware corporation.

 

**Payto the order of                                                                  ,without recourse**.

 

 
| Dated as of  October 5, 2007 |                                 |
|------------------------------|--------------------------------------|
|                         |                                 |
|                         |                                 |
|                         | **LENDER**:                          |
|                         |                                 |
|                         | **LEHMAN BROTHERS HOLDINGS INC.**, a |
|                         | Delaware  corporation                |
|                         |                                 |
|                         |                                 |
|                         | By:                                  |   |   |
|                         | Name:                                |   |   |
|                         | Title:                               |   |   |

 

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**SCHEDULE A**

 

**PREPAYMENT PREMIUM**

 

Any prepaymentpremium payable under Section 10 of this Note shall be computed asfollows:

 

(a)                                  Ifthe prepayment is made at any time after the date of this Note and before theYield Maintenance Period End Date, the prepayment premium shall be the greaterof:

 

(i)                                     onepercent (1%) of the amount of principal being prepaid; or

 

(ii)                                  Theproduct obtained by multiplying:

 

(A)                              theamount of principal being prepaid,

 

*by*

 

(B)                                thedifference obtained by subtracting from the Interest Rate on this Note theyield rate (the “**Yield Rate**”) onthe                    %U.S. Treasury Security due                                           (the “**Specified U.S. Treasury Security**”),on the twenty-fifth (25th) Business Day preceding (x) the IntendedPrepayment Date, or (y) the date Lender accelerates the Loan or otherwiseaccepts a prepayment pursuant to Section 10(a)(3) of this Note, as theYield Rate is reported in *The Wall StreetJournal,*

 

*by*

 

(C)           the present value factor calculatedusing the following formula:

 
|   |   | 1 – (1 + r)-n/12 |   |   |
|--------|--------|-----------------------|--------|--------|
|   |   | r                     |   |   |

 

[r =     Yield Rate

n =       thenumber of months remaining between (1) either of the following: (x) in the caseof a voluntary prepayment, the Last Day of the Month during which theprepayment is made, or (y) in any other case, the date on which Lenderaccelerates the unpaid principal balance of this Note and (2) the YieldMaintenance Period End Date]

 

In the eventthat no Yield Rate is published for the Specified U.S. Treasury Security, thenthe nearest equivalent non-callable U.S. Treasury Security having a maturitydate closest to the Yield

 

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MaintenancePeriod End Date of this Note shall be selected at Lender’s discretion. If thepublication of such Yield Rates in *The WallStreet Journal* is discontinued, Lender shall determine such YieldRates from another source selected by Lender.

 

(b)                                 Notwithstandingthe provisions of Paragraph 10(a) of this Note, no prepayment premium shall bepayable with respect to any prepayment made after the Yield Maintenance PeriodEnd Date.

 

*[Remainder of page intentionally left blank.]*

 

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[Initial Page to Schedule A to Fixed Loan Note]

 

 
|   |       |   |
|--------|------------|--------|
|   |       |
|   | INITIAL(S) |

 

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**EXHIBIT C TO MASTER CREDIT FACILITY AGREEMENT**

 

**[NOTE: THIS IS A ONE-MONTH SARM FORM;**

**THREE-MONTH SARM IS AVAILABLE DURINGEXTENSION PERIODAND NOTE WILL BE REVISED ACCORDINGLY]**

 

**VARIABLE LOAN NOTE**

**(Collateral Pool     )**

 
| US  $[                                                 ] |   | [                                 ,     ] |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

**                FORVALUE RECEIVED**, the undersigned (“**Borrower**”) jointly and severally (if more than one)promises to pay to the order of(a) **LEHMANBROTHERS HOLDINGS INC.**, a Delaware corporation, (b) **BANK OF AMERICA, N.A., a national banking association**,and (c) **BARCLAYS CAPITAL REAL ESTATE INC.**,a Delaware corporation, their successors, transferees and assigns (individuallyand collectively, “**Lender**”),the principal sum of                                                                                              Dollars (US $                                  ),with interest on the unpaid principal balance from the Disbursement Date untilfully paid at the rates applicable from time to time set forth in this VariableLoan Note (“**Note**”).

 

This Note isexecuted and delivered by Borrower pursuant to that certain Master CreditFacility Agreement, dated as of October 5, 2007 by and between Borrower, Lenderand others (as amended from time to time, the “**Master Agreement**”), to evidence the obligation of Borrowerto repay a Variable Loan made by Lender to Borrower (Collateral Pool Borrower     ) in accordance with the terms of the MasterAgreement. This Note is entitled to the benefit and security of the LoanDocuments provided for in the Master Agreement, to which reference is herebymade for a statement of all of the terms and conditions under which theVariable Loan evidenced hereby is made. All references to Loan Documents andSecurity Documents herein shall be with respect to Collateral Pool           (the “**Collateral Pool**”) asfurther identified in the Master Agreement.

 

**Section1.              Defined Terms.**Inaddition to defined terms found elsewhere in this Note, as used in this Note,the following definitions shall apply:

 

**AdjustableRate.**The initial Adjustable Rate shall be                 %per annum until the first Rate Change Date. From and after each Rate ChangeDate until the next Rate Change Date, the Adjustable Rate shall be the sum of(i) the Current Index, and (ii) the Margin, which sum is then rounded to threedecimal places, subject to the limitations that the Adjustable Rate shall notbe less than the Margin.

 

**AmortizationPeriod:**  N/A.

 

**BusinessDay:** Any dayother than a Saturday, Sunday or any other day on which Lender is not open forbusiness.

 

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**CurrentIndex: **Thepublished Index that is effective on the Business Day immediately preceding theapplicable Rate Change Date.

 

**DefaultRate**:  A rateequal to the lesser of four (4) percentage points above the then-applicableAdjustable Rate or the maximum interest rate which may be collected fromBorrower under applicable law.

 

**DisbursementDate:**  The dateof disbursement of Loan proceeds hereunder.

 

**FirstPayment Date:** The first day of                           ,            . *[For example, if the Note date is January 1, then theFirst Payment Date will be February 1. If the Note date is any day other thanJanuary 1, then the First Payment Date will be March 1.]*

 

**Indebtedness: **The principal of,interest on, or any other amounts due at any time under, this Note, theSecurity Instrument or any other Loan Document, including prepayment premiums,late charges, default interest, and advances to protect the security of theSecurity Instrument under Section 12 of the Security Instrument.

 

**Index:**  The British Bankers Association fixing of theLondon Inter-Bank Offered Rate for 1-month U.S. Dollar-denominated deposits asreported by Telerate through electronic transmission. If the Index is no longeravailable, or is no longer posted through electronic transmission, Lender willchoose a new index that is based upon comparable information and provide noticethereof to Borrower.

 

**InitialAdjustable Rate**:               %per annum until the first Rate Change Date.

 

**Lender: **The holder of thisNote.

 

**Loan**:  The loan evidenced by this Note.

 

**LoanYear:**  Theperiod beginning on the Disbursement Date and ending on the day before thetwelfth Rate Change Date and each successive twelve- (12) month periodthereafter.

 

**Margin:**                  %, which amount includes the Variable Loan Fee.

 

**MaturityDate:** The firstday of November, 2009, or any earlier date on which the unpaid principalbalance of this Note becomes due and payable by acceleration or otherwise,unless otherwise extended pursuant to Section 1.05 of the Master Agreement.

 

**PaymentChange Date:** The first day of the month following each Rate Change Date until thisNote is repaid in full.

 

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**PrepaymentLockout Period:** None.

 

**PrepaymentPremium Term:** The period beginning on the Disbursement Date and ending on the lastcalendar day of October, 2008.

 

**RateChange Date:** The First Payment Date and the first day of each month thereafter untilthis Note is repaid in full.

 

**SecurityInstrument**: Individually and collectively, various multifamily mortgages, deeds tosecure debt or deeds of trust described in the Master Agreement comprisingCollateral Pool       .

 

**ServicingPayment Date:** Two (2) Business Days prior to the date each monthly payment is dueunder this Note.

 

**VariableLoan Fee**:  Hasthe meaning set forth in the Master Agreement.

 

Event ofDefault and other capitalized terms used but not defined in this Note shallhave the meanings given to such terms in the Master Agreement or, if notdefined in the Master Agreement, as defined in the Security Instrument.

 

**Section2.              Address for Payment.**Allpayments due under this Note shall be payable at c/o Lehman Brothers HoldingsInc., 399 Park Avenue, New York, New York 10022, or such other place as may bedesignated by written notice to Borrower from or on behalf of Lender.

 

**Section3.              Payment of Principal andInterest.**This Note will accrue interest on theoutstanding principal balance at the Adjustable Rate. Principal and interestshall be paid as follows:

 

(a)           **ShortMonth Interest.**If disbursement of principal is made by Lender toBorrower on any day other than the first day of the month, interest for theperiod beginning on the Disbursement Date and ending on and including the lastday of the month in which such disbursement is made shall be payablesimultaneously with the execution of this Note.

 

(b)           **InterestAccrual**. Interest shall accrue on the unpaid principal balance ofthis Note at the Adjustable Rate. The Adjustable Rate shall change on each RateChange Date until the Loan is repaid in full. Interest under this Note shall becomputed on the basis of a 360-day year. The amount of each monthly paymentmade by Borrower pursuant to Paragraph 3(d) below that is allocated to interestwill be based on the actual number of calendar days during such month and shallbe calculated by multiplying the unpaid principal balance of this Note by theapplicable Adjustable Rate, dividing the product by 360 and multiplying thequotient by the actual number of days elapsed during the month. Borrowerunderstands that the amount allocated to interest for each month will varydepending on the actual number of calendar days during such month.

 

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(c)           **AdjustableRate.**  The Initial AdjustableRate shall be in effect until the first Rate Change Date.  From and after each Rate Change Date untilthe next Rate Change Date, the Adjustable Rate shall be the sum of (i) theCurrent Index, and (ii) the Margin, which sum is then rounded to three decimalplaces, subject to the limitations that the Adjustable Rate shall not be lessthan the Margin.  Accrued interest onthis Note shall be paid in arrears.

 

(d)           **MonthlyPayments.**  Borroweracknowledges and agrees to pay all payments required each month as set forthbelow (the “**Required Monthly Payments**”)due under this Note to the Lender on the Servicing Payment Date even thoughsuch Required Monthly Payments are due on the first day of every month.

 

x                                  **Interest Only Loan**.  Consecutive monthly installments of interestonly, each in the amount of the Required Monthly Payment, shall be payable onthe First Payment Date and on the first day of each month thereafter until theentire unpaid principal balance evidenced by this Note is fully paid.  The entire unpaid principal balance andaccrued but unpaid interest, if not sooner paid, shall be due and payable onthe Maturity Date.  The initial Required MonthlyPayment shall be                                                                  Dollars  (US $                                               ).  Thereafter, to the extent that the AdjustableRate has changed, the Required Monthly Payment shall change on each PaymentChange Date based on the then-applicable Adjustable Rate.  The amount of the initial and any changedRequired Monthly Payment shall be calculated utilizing the interest accrualmethod stated in Paragraph 3(b) above.

 

(e)           [Intentionally deleted.]

 

(f)            **Noticeof Interest Rate Change.** Before each Payment Change Date, Lender shall re-calculate theAdjustable Rate and shall notify Borrower (in the manner specified in theSecurity Instrument for giving notices) of any change in the Adjustable Rateand the Required Monthly Payment.

 

(g)           **Correctionto Required Monthly Payment.** If Lender at any time determines, in its sole but reasonable discretion,that it has miscalculated the amount of the Required Monthly Payment (whetherbecause of a miscalculation of the Adjustable Rate or otherwise), then Lendershall give notice to Borrower of the corrected amount of the Required MonthlyPayment (and the corrected Adjustable Rate, if applicable) and (i) if thecorrected amount of the Required Monthly Payment represents an increase, thenBorrower shall, within thirty (30) calendar days thereafter, pay to Lender anysums that Borrower would have otherwise been obligated under this Note to payto Lender had the amount of the Required Monthly Payment not beenmiscalculated, or (ii) if the corrected amount of the Required Monthly Paymentrepresents a decrease thereof and Borrower is not otherwise in breach ordefault under any of the terms and provisions of the Note, the SecurityInstrument or any other loan document evidencing or securing the Note, thenBorrower shall within thirty (30) calendar days thereafter

 

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be paid thesums that Borrower would not have otherwise been obligated to pay to Lender hadthe amount of the Required Monthly Payment not been miscalculated.

 

(h)           **PaymentsBefore Due Date.**  Anyregularly scheduled monthly installment of principal and interest that isreceived by Lender before the date it is due shall be deemed to have beenreceived on the due date solely for the purpose of calculating interest due.

 

(i)            **AccruedInterest.**  Any accruedinterest remaining past due for thirty (30) days or more shall be added to andbecome part of the unpaid principal balance and shall bear interest at the rateor rates specified in this Note.  Anyreference herein to “accrued interest” shall refer to accrued interest whichhas not become part of the unpaid principal balance.  Any amount added to principal pursuant to theLoan Documents shall bear interest at the applicable rate or rates specified inthis Note and shall be payable with such interest upon demand by Lender andabsent such demand, as provided in this Note for the payment of principal andinterest.

 

**Section4.              Application ofPayments. **If atany time Lender receives, from Borrower or otherwise, any amount applicable tothe Indebtedness which is less than all amounts due and payable at such time,Lender may apply that payment to amounts then due and payable in any manner andin any order determined by Lender, in Lender’s discretion.  Borrower agrees that neither Lender’sacceptance of a payment from Borrower in an amount that is less than allamounts then due and payable nor Lender’s application of such payment shallconstitute or be deemed to constitute either a waiver of the unpaid amounts oran accord and satisfaction.

 

**Section5.              Security. **The Indebtedness issecured, among other things, by the Security Instrument, and reference is madeto the Security Instrument for other rights of Lender concerning the collateralfor the Indebtedness.

 

**Section6.              Acceleration. **If an Event ofDefault has occurred and is continuing, the entire unpaid principal balance,any accrued interest, the prepayment premium payable under Section 10,if any, and all other amounts payable under this Note and any other LoanDocument shall at once become due and payable, at the option of Lender, withoutany prior notice to Borrower.  Lender mayexercise this option to accelerate regardless of any prior forbearance.

 

**Section7.              Late Charge.  MONTHLY PAYMENTS UNDER THIS NOTE ARE DUEON THE FIRST DAY OF EACH AND EVERY MONTH UNTIL THIS NOTE IS PAID IN FULL.  BORROWER HEREBY AGREES THAT SUCH PAYMENTSSHALL BE MADE TO THE LENDER ON THE SERVICING PAYMENT DATE.  THERE IS NO**“**GRACE**”**PERIOD FOR ANY MONTHLY INSTALLMENTS DUE HEREUNDER****.** Subject to the provisions of Section 9.01(b) of the Master Agreement, ifany monthly installment due hereunder is not received by Lender on or beforethe first day of each month or if any other amount payable under this Note orunder the Security Instrument or any other Loan Document is not received byLender before or on the date such amount is due, counting from and includingthe date such amount is due, Borrower shall pay to Lender, immediately andwithout demand by Lender, a late charge equal to five percent (5%) of such monthlyinstallment or other amount due (provided that in connection with the paymentin full on the Maturity Date, if such payment is not received by Lender on orbefore the fifth (5th) day after the Maturity Date, counting fromand

 

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including theMaturity Date, Borrower shall pay to Lender, immediately and without demand byLender, a late charge equal to one percent (1%) of such payment or other amountdue).  Borrower acknowledges that itsfailure to make timely payments will cause Lender to incur additional expensesin servicing and processing the Loan and that it is extremely difficult andimpractical to determine those additional expenses.  Borrower agrees that the late charge payablepursuant to this Paragraph represents a fair and reasonable estimate, takinginto account all circumstances existing on the date of this Note, of theadditional expenses Lender will incur by reason of such late payment.  The late charge is payable in addition to,and not in lieu of, any interest payable at the Default Rate pursuant to Section8.

 

**Section8.              Default Rate. **So long as anymonthly installment or any other payment due under this Note remains past duefor thirty (30) days or more, interest under this Note shall accrue on theunpaid principal balance from the earlier of the due date of the first unpaidmonthly installment or other payment due, as applicable, at the DefaultRate.  If the unpaid principal balanceand all accrued interest are not paid in full on the Maturity Date, the unpaidprincipal balance and all accrued interest shall bear interest from theMaturity Date at the Default Rate. Borrower also acknowledges that its failure to make timely payments willcause Lender to incur additional expenses in servicing and processing the Loan,that, during the time that any monthly installment or payment under this Noteis delinquent for more than thirty (30) days, Lender will incur additionalcosts and expenses arising from its loss of the use of the money due and fromthe adverse impact on Lender’s ability to meet its other obligations and totake advantage of other investment opportunities, and that it is extremelydifficult and impractical to determine those additional costs and expenses.  Borrower also acknowledges that, during thetime that any monthly installment or other payment due under this Note isdelinquent for more than thirty (30) days, Lender’s risk of nonpayment of thisNote will be materially increased and Lender is entitled to be compensated forsuch increased risk.  Borrower agreesthat the increase in the rate of interest payable under this Note to theDefault Rate represents a fair and reasonable estimate, taking into account allcircumstances existing on the date of this Note, of the additional costs andexpenses Lender will incur by reason of the Borrower’s delinquent payment andthe additional compensation Lender is entitled to receive for the increasedrisks of nonpayment associated with a delinquent Loan.

 

**Section9.              Limits on PersonalLiability; Joint and Several Obligation**.  The provisions of Article 12 of theMaster Agreement (entitled “Limits on Personal Liability”) are herebyincorporated into this Note by this reference to the fullest extent as if thetext of such Sections were set forth in its entirety herein.

 

**Section10.            Lockout; Voluntary andInvoluntary Prepayments.**

 

(a)           Borrower may voluntarily prepay all(or a portion) of the indebtedness evidenced hereby subject to the prepaymentprovisions and any Prepayment Lockout Period described in Schedule A.

 

(b)           A prepayment premium shall be payablein connection with any prepayment made under this Note as provided below:

 

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(i)            At any time after the expiration ofthe Prepayment Lockout Period, Borrower may voluntarily prepay all (or aportion) of the unpaid principal balance of this Note only on the last calendarday of a calendar month (the “**Last Day ofthe Month**”) and only if Borrower has complied with all of thefollowing:

 

(1)           Borrower must giveLender at least thirty (30) days (if given via U.S. Postal Service) or twenty(20) days (if given via facsimile, email or overnight courier), but not morethan sixty (60) days, prior written notice of Borrower’s intention to make aprepayment (the “**Prepayment Notice**”).  The Prepayment Notice shall be given inwriting (via facsimile, email, U.S. Postal Service or overnight courier) andaddressed to Lender.  The PrepaymentNotice shall include, at a minimum, the Business Day upon which Borrower intendsto make the prepayment (the “**IntendedPrepayment Date**”).

 

(2)           Borroweracknowledges that the Lender is not required to accept any voluntary prepaymentof this Note on any day other than the Last Day of the Month even if Borrowerhas given a Prepayment Notice with an Intended Prepayment Date other than theLast Day of the Month or if the Last Day of the Month is not a BusinessDay.  Therefore, even if Lender accepts avoluntary prepayment on any day other than the Last Day of the Month, for allpurposes (including the accrual of interest and the calculation of theprepayment premium), any prepayment received by Lender on any day other thanthe Last Day of the Month shall be deemed to have been received by Lender onthe Last Day of the Month and any prepayment calculation will include interestto and including the Last Day of the Month in which such prepaymentoccurs.  If the Last Day of the Month isnot a Business Day, then the Borrower must make the payment on the Business Dayimmediately preceding the Last Day of the Month.

 

(3)           Any prepayment shallbe made by paying (A) the amount of principal being prepaid, (B) all accruedinterest (calculated to the Last Day of the Month), (C) all other sums dueLender at the time of such prepayment, and (D) the prepayment premiumcalculated pursuant to Schedule A.

 

(4)           If, for any reason,Borrower fails to prepay this Note within five (5) Business Days after theIntended Prepayment Date, then Lender shall have the right, but not theobligation, to recalculate the prepayment premium pursuant to Schedule Abased upon the date that Borrower actually prepays this Note.  Notwithstanding the foregoing, if the delayedprepayment occurs in a month other than the month stated in the originalPrepayment Notice, then Lender shall (a) have the right, but not theobligation, to recalculate the prepayment premium pursuant to Schedule A basedupon the date that Borrower actually prepays this Note and (b) recalculate theamount of interest payable.  In eitherinstance, for purposes of recalculation, such new prepayment date shall bedeemed the “**Intended Prepayment Date**.”

 

(ii)           Upon Lender’s exercise of any rightof acceleration under this Note, Borrower shall pay to Lender, in addition tothe entire unpaid principal balance of this Note outstanding at the time of theacceleration, (A) all accrued interest and all other sums due

 

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Lender underthis Note and the other Loan Documents, and (B) the prepayment premiumcalculated pursuant to Schedule A.

 

(iii)          Any application by Lender of anycollateral or other security to the repayment of any portion of the unpaidprincipal balance of this Note prior to the Maturity Date and in the absence ofacceleration shall be deemed to be a partial prepayment by Borrower, requiringthe payment to Lender by Borrower of a prepayment premium.

 

(c)           Notwithstanding the provisions of Section10(b), no prepayment premium shall be payable (1) with respect to anyprepayment occurring as a result of the application of any insurance proceedsor condemnation award under the Security Instrument, or (2) as provided insubparagraph (c) of Schedule A.

 

(d)           Schedule A is hereby incorporated byreference into this Note.

 

(e)           Any permitted or required prepaymentof less than the entire unpaid principal balance of this Note shall not extendor postpone the due date of any subsequent monthly installments, provided theamount of each monthly installment shall be recomputed to reflect suchprepayment of the Indebtedness.

 

(f)            Borrower recognizes that anyprepayment of the unpaid principal balance of this Note, whether voluntary orinvoluntary or resulting from a default by Borrower, will result in Lender’sincurring loss, including reinvestment loss, additional expense and frustrationor impairment of Lender’s ability to meet its commitments to thirdparties.  Borrower agrees to pay toLender upon demand damages for the detriment caused by any prepayment, andagrees that it is extremely difficult and impractical to ascertain the extentof such damages.  Borrower thereforeacknowledges and agrees that the formula for calculating prepayment premiumsset forth on Schedule A represents all the damages Lender will incur because ofa prepayment.

 

(g)           Borrower further acknowledges thatthe prepayment premium provisions of this Note are a material part of theconsideration for the Loan evidenced by this Note, and acknowledges that theterms of this Note are in other respects more favorable to Borrower as a resultof the Borrower’s voluntary agreement to the prepayment premium provisions.

 

**Section11.            Costs and Expenses. **Borrower shall payon demand all reasonable expenses and costs, including reasonable fees andout-of-pocket expenses of attorneys and expert witnesses and costs ofinvestigation, actually incurred by Lender as a result of any default underthis Note or in connection with efforts to collect any amount due under thisNote, or to enforce the provisions of any of the other Loan Documents,including those incurred in post-judgment collection efforts and in anybankruptcy proceeding (including any action for relief from the automatic stayof any bankruptcy proceeding) or judicial or non-judicial foreclosureproceeding.

 

**Section12.            Forbearance.**  Any forbearance by Lender in exercising anyright or remedy under this Note, the Security Instrument, or any other LoanDocument or otherwise afforded by applicable law, shall not be a waiver of orpreclude the exercise of that or any other right or remedy.  The acceptance by Lender of any payment afterthe due date of such payment,

 

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or in anamount which is less than the required payment, shall not be a waiver ofLender’s right to require prompt payment when due of all other payments or toexercise any right or remedy with respect to any failure to make promptpayment.  Enforcement by Lender of anysecurity for Borrower’s obligations under this Note shall not constitute anelection by Lender of remedies so as to preclude the exercise of any otherright or remedy available to Lender.

 

**Section13.            Waivers. **Except as expresslyprovided in this Note or the Master Agreement, presentment, demand, notice ofdishonor, protest, notice of acceleration, notice of intent to demand oraccelerate payment or maturity, presentment for payment, notice of nonpayment,grace, and diligence in collecting the Indebtedness are waived by Borrower andall endorsers and guarantors of this Note and all other third party obligors.

 

**Section14.            Loan Charges.**  Borrower agrees to pay an effective rate ofinterest equal to the sum of the interest rate provided for in this Note andany additional rate of interest resulting from any other charges of interest orin the nature of interest paid or to be paid in connection with the Loanevidenced by this Note and any other fees or amounts to be paid by Borrowerpursuant to any of the other Loan Documents. Neither this Note nor any of the other Loan Documents shall be construedto create a contract for the use, forbearance or detention of money requiringpayment of interest at a rate greater than the maximum interest rate permittedto be charged under applicable law.  Ifany applicable law limiting the amount of interest or other charges permittedto be collected from Borrower in connection with the Loan is interpreted sothat any interest or other charge provided for in any Loan Document, whetherconsidered separately or together with other charges provided for in any otherLoan Document, violates that law, and Borrower is entitled to the benefit ofthat law, that interest or charge is hereby reduced to the extent necessary toeliminate that violation.  The amounts,if any, previously paid to Lender in excess of the permitted amounts shall beapplied by Lender to reduce the unpaid principal balance of this Note.  For the purpose of determining whether anyapplicable law limiting the amount of interest or other charges permitted to becollected from Borrower has been violated, all Indebtedness that constitutesinterest, as well as all other charges made in connection with the Indebtednessthat constitute interest, shall be deemed to be allocated and spread ratablyover the stated term of the Note.  Unlessotherwise required by applicable law, such allocation and spreading shall beeffected in such a manner that the rate of interest so computed is uniformthroughout the stated term of the Note.

 

**Section15.            Commercial Purpose. **Borrower representsthat the Indebtedness is being incurred by Borrower solely for the purpose ofcarrying on a business or commercial enterprise, and not for personal, familyor household purposes.

 

**Section16.            Counting of Days. **Except whereotherwise specifically provided, any reference in this Note to a period of“days” means calendar days, not Business Days.

 

**Section17.            Choice of Law; Consent toJurisdiction; Waiver of Jury Trial. **Theprovisions of Section 13.06 of the Master Agreement (entitled “Choiceof Law; Consent to Jurisdiction; Waiver of Jury Trial”) are herebyincorporated into this Note by this reference to the fullest extent as if thetext of such Section were set forth in its entirety herein.

 

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**Section18.            Captions. **The captions of theparagraphs of this Note are for convenience only and shall be disregarded inconstruing this Note.

 

**Section19.            Notices**.  All notices, demands and other communicationsrequired or permitted to be given by Lender to Borrower pursuant to this Noteshall be given in accordance with Section 13.08 of the Master Agreement.

 

**Section20.            Security for this Note**.   The indebtedness evidenced by this Note issecured by other Security Documents executed by Collateral Pool Borrower.  Reference is made hereby to the MasterAgreement and the Security Documents for additional rights and remedies ofLender relating to the Indebtedness evidenced by this Note.  Each Security Document shall be released inaccordance with the provisions of the Master Agreement and the SecurityDocuments.

 

**Section21.            Loan May Not Be Reborrowed.**  Borrower may not re-borrow any amounts underthis Note which it has previously borrowed and repaid under this Note

** **

**Section22.            Variable Loan.**  This Note is issued to evidence a VariableLoan made in accordance with the terms of the Master Agreement.

 

**Section23.            Cross-Default with MasterAgreement.  **Theoccurrence and continuance of an Event of Default with respect to theCollateral Pool under the Master Agreement shall constitute an “Event ofDefault” under this Note, and, accordingly, upon the occurrence of an Event ofDefault under the Master Agreement with respect to the Collateral Pool, theentire principal amount outstanding hereunder and accrued interest thereonshall at once become due and payable, at the option of the holder hereof.

 

 

*[Remainder of page intentionally left blank.]*

 

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**ATTACHEDSCHEDULES.  The following Schedules areattached to this Note:**

 

x           Schedule A Prepayment Premium (required)

 

*[Remainder of page intentionally left blank.]*

 

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IN WITNESSWHEREOF, Borrower has signed and delivered this Note under seal or has causedthis Note to be signed and delivered under seal by its duly authorizedrepresentative (which authorized representative shall have no personalliability hereunder).  Borrower intendsthat this Note shall be deemed to be signed and delivered as a sealedinstrument.

 
|       | **BORROWER**:                   |
|------------|---------------------------------|
|       |                            |
|       | **[ADD EACH BORROWER FOR SUCH** |
| ** ** | **COLLATERAL POOL]**            |

 

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**ALLONGE TO NOTE**

 

 

This Allongeto Note is attached to and forms a part of the Fixed Loan Note (Collateral Pool     ) dated October 5, 2007, in the originalprincipal amount of $                                     from Borrower to BANK OF AMERICA, N.A., a national banking association,BARCLAYS CAPITAL REAL ESTATE INC., and LEHMAN BROTHERS HOLDINGS INC., aDelaware corporation.

 

**Payto the order of                                                                           ,without recourse**.

 

 
| Dated as of  October 5, 2007 |                                         |
|------------------------------|----------------------------------------------|
|                         |                                         |
|                         |                                         |
|                         | **LENDER**:                                  |
|                         |                                         |
|                         | **BANK OF AMERICA, N.A.,**a national banking |
|                         | association                                  |
|                         |                                         |
|                         |                                         |
|                         | By:                                          |   |   |
|                         | Name:                                        |   |   |
|                         | Title:                                       |   |   |
|                         |                                         |
|                         |                                         |
|                         | **BARCLAYS CAPITAL REAL ESTATE INC.**, a     |
|                         | Delaware  corporation                        |
|                         |                                         |
|                         |                                         |
|                         | By:                                          |   |   |
|                         | Name:                                        |   |   |
|                         | Title:                                       |   |   |
|                         |                                         |
|                              |                                              |  |  |  |

 

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**ALLONGE TO NOTE**

 

 

This Allongeto Note is attached to and forms a part of the Fixed Loan Note (Collateral Pool     ) dated October 5, 2007, in the original principalamount of$                             from Borrower to BANK OF AMERICA, N.A., a national banking association,BARCLAYS CAPITAL REAL ESTATE INC., a Delaware corporation, and LEHMAN BROTHERSHOLDINGS INC., a Delaware corporation.

 

**Payto the order of                                                                 ,without recourse**.

 

 
| Dated as of  October 5, 2007 |                                 |
|------------------------------|--------------------------------------|
|                         |                                 |
|                         |                                 |
|                         | **LENDER**:                          |
|                         |                                 |
|                         | **LEHMAN BROTHERS HOLDINGS INC.**, a |
|                         | Delaware  corporation                |
|                         |                                 |
|                         |                                 |
|                         | By:                                  |   |   |
|                         | Name:                                |   |   |
|                         | Title:                               |   |   |

 

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**SCHEDULE A**

 

Any prepaymentpremium payable under Section 10 of this Note shall be computed asfollows:

 

(a)                                  IfBorrower voluntarily prepays this Note, Lender accelerates the unpaid principalbalance of this Note, or the Lender applies collateral held by Lender to therepayment of any portion of the unpaid principal balance of this Note aspermitted in Section 10(b) of the Note (if any), the prepayment premiumshall be equal to the following percentage of the amount of principal beingprepaid at the time of such prepayment, acceleration or application:

 
| First Loan Year |   | 10 basis  points (0.10%) |
|-----------------|--------|--------------------------|

 

(b)                                 Forthe purposes of this Note, a “**Loan Year**”shall have the meaning ascribed to it in this Note.

 

(c)                                  Notwithstandingthe provisions of Section 10(b) of this Note or the foregoing, noprepayment premium shall be payable with respect to any prepayment made on orafter the Prepayment Premium Term.

 

*[Remainder of page intentionally left blank.]*

 

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[Initial Page to Schedule A to Variable Loan Note]

 

 
|   |       |   |
|--------|------------|--------|
|   | INITIAL(S) |

 

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