EX-10.2



 





EXHIBIT 10.2




LOAN AGREEMENT




[LIBOR]




BETWEEN




PCAA SP, LLC, A DELAWARE LIMITED LIABILITY COMPANY




AS BORROWER




AND




GMAC COMMERCIAL MORTGAGE BANK, A UTAH INDUSTRIAL BANK




AS LENDER




DATED AS OF OCTOBER 3, 2005



Loan Number: 48442




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE 1
	 	DEFINED TERMS AND CONSTRUCTION GUIDELINES	 	 	1	 
	1.01.
	 	Defined Terms	 	 	1	 
	1.02.
	 	General Construction	 	 	1	 
	1.03.
	 	Property	 	 	1	 
	ARTICLE 2
	 	LOAN AMOUNT; PAYMENT TERMS; ADVANCES	 	 	2	 
	2.01.
	 	Commitment to Lend	 	 	2	 
	2.02.
	 	Calculation of Interest	 	 	2	 
	2.03.
	 	Payment of Principal and Interest	 	 	4	 
	2.04.
	 	Payments Generally	 	 	6	 
	2.05.
	 	Prepayment Rights	 	 	7	 
	2.06.
	 	Right of First and Last Refusal	 	 	8	 
	2.07.
	 	Interest Rate Cap/Hedge	 	 	9	 
	ARTICLE 3
	 	CASH MANAGEMENT	 	 	10	 
	3.01.
	 	Lockbox	 	 	10	 
	ARTICLE 4
	 	ESCROW AND RESERVE REQUIREMENTS	 	 	10	 
	4.01.
	 	Creation and Maintenance of Escrows and Reserves	 	 	10	 
	4.02.
	 	Tax Escrow	 	 	12	 
	4.03.
	 	Insurance Premium Escrow	 	 	13	 
	4.04.
	 	Capital Improvements/Deferred Maintenance Escrow Account	 	 	14	 
	4.05.
	 	Replacement Reserve Account	 	 	14	 
	4.06.
	 	Intentionally Omitted	 	 	15	 
	4.07.
	 	Intentionally Omitted	 	 	15	 
	4.08.
	 	Leasehold Payment Reserve Account	 	 	15	 
	ARTICLE 5
	 	COMPLETION OF REPAIRS RELATED TO RESERVE ACCOUNTS; CONDITIONS TO RELEASE OF FUNDS	 	 	16	 
	5.01.
	 	Conditions Precedent to Disbursements from Certain Reserve Accounts	 	 	16	 
	5.02.
	 	Waiver of Conditions to Disbursement	 	 	18	 
	5.03.
	 	Direct Payments to Suppliers and Contractors	 	 	18	 
	5.04.
	 	Performance of Reserve Items	 	 	18	 
	ARTICLE 6
	 	LOAN SECURITY AND RELATED OBLIGATIONS	 	 	19	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	6.01.
	 	Security Instrument and Assignment of Rents and Leases	 	 	19	 
	6.02.
	 	Assignment of Property Management Contract	 	 	19	 
	6.03.
	 	Assignment of Rate Cap Agreement	 	 	19	 
	6.04.
	 	Assignment of Operating Agreements	 	 	19	 
	6.05.
	 	Pledge as Property; Grant of Security Interest	 	 	20	 
	6.06.
	 	Environmental Indemnity Agreement	 	 	20	 
	6.07.
	 	Guaranty of Borrower Sponsors	 	 	20	 
	6.08.
	 	Letter of Credit	 	 	20	 
	ARTICLE 7
	 	SINGLE PURPOSE ENTITY REQUIREMENTS	 	 	21	 
	7.01.
	 	Commitment to be a Single Purpose Entity	 	 	21	 
	7.02.
	 	Definition of Single Purpose Entity	 	 	22	 
	ARTICLE 8
	 	REPRESENTATIONS AND WARRANTIES	 	 	26	 
	8.01.
	 	Organization; Legal Status	 	 	26	 
	8.02.
	 	Power; Authorization; Enforceable Obligations	 	 	26	 
	8.03.
	 	No Legal Conflicts	 	 	26	 
	8.04.
	 	No Litigation	 	 	26	 
	8.05.
	 	Business Purpose of Loan	 	 	27	 
	8.06.
	 	Warranty of Title	 	 	27	 
	8.07.
	 	Condition of the Property	 	 	27	 
	8.08.
	 	No Condemnation	 	 	27	 
	8.09.
	 	Requirements of Law	 	 	27	 
	8.10.
	 	Operating Permits	 	 	27	 
	8.11.
	 	Separate Tax Lot	 	 	28	 
	8.12.
	 	Flood Zone	 	 	28	 
	8.13.
	 	Adequate Utilities	 	 	28	 
	8.14.
	 	Public Access	 	 	28	 
	8.15.
	 	Boundaries	 	 	28	 
	8.16.
	 	Mechanic Liens	 	 	28	 
	8.17.
	 	Assessments	 	 	28	 
	8.18.
	 	Insurance	 	 	28	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	8.19.
	 	Leases	 	 	29	 
	8.20.
	 	Management Agreement	 	 	29	 
	8.21.
	 	Financial Condition	 	 	29	 
	8.22.
	 	Taxes	 	 	29	 
	8.23.
	 	No Foreign Person	 	 	29	 
	8.24.
	 	Federal Regulations	 	 	30	 
	8.25.
	 	Investment Company Act; Other Regulations	 	 	30	 
	8.26.
	 	ERISA	 	 	30	 
	8.27.
	 	No Illegal Activity as Source of Funds	 	 	30	 
	8.28.
	 	Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws	 	 	30	 
	8.29.
	 	Brokers and Financial Advisors	 	 	30	 
	8.30.
	 	Equity Contribution	 	 	30	 
	8.31.
	 	Complete Disclosure; No Change in Facts or Circumstances	 	 	31	 
	8.32.
	 	Ground Leases	 	 	31	 
	8.33.
	 	Survival	 	 	32	 
	8.34.
	 	Philadelphia Joint Operation	 	 	32	 
	Under
	 	certain circumstances, Borrower has
the right to exercise an option to lease from PCAA, and PCAA has an
obligation to lease to Borrower, one hundred fifty (150) parking spaces located on the PCAA Property	 	 	32	 
	ARTICLE 9
	 	BORROWER COVENANTS	 	 	32	 
	9.01.
	 	Payment of Debt and Performance of Obligations	 	 	32	 
	9.02.
	 	Payment of Taxes and Other Lienable Charges	 	 	32	 
	9.03.
	 	Insurance	 	 	33	 
	9.04.
	 	Obligations upon Condemnation or Casualty	 	 	38	 
	9.05.
	 	Inspections and Right of Entry	 	 	42	 
	9.06.
	 	Leases and Rents	 	 	42	 
	9.07.
	 	Use of Property	 	 	43	 
	9.08.
	 	Maintenance of Property	 	 	44	 
	9.09.
	 	Waste	 	 	44	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	9.10.
	 	Compliance with Laws	 	 	44	 
	9.11.
	 	Financial Reports, Books and Records	 	 	44	 
	9.12.
	 	Performance of Other Agreements	 	 	46	 
	9.13.
	 	Existence; Change of Name; Location as a Registered Organization	 	 	47	 
	9.14.
	 	Property Management	 	 	47	 
	9.15.
	 	ERISA	 	 	48	 
	9.16.
	 	Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws	 	 	48	 
	9.17.
	 	Equity Contribution	 	 	48	 
	9.18.
	 	Net Worth Covenant	 	 	48	 
	9.19.
	 	Liquidity Covenant	 	 	48	 
	9.20.
	 	Ground Lease Covenants	 	 	48	 
	ARTICLE 10
	 	NO TRANSFERS OR ENCUMBRANCES; DUE ON SALE	 	 	50	 
	10.01.
	 	Prohibition Against Transfers	 	 	50	 
	10.02.
	 	Lender Approval	 	 	51	 
	10.03.
	 	Borrower Right to Partial Releases for Partial Release Price	 	 	51	 
	10.04.
	 	Other Releases of the Mortgaged Property	 	 	54	 
	10.05.
	 	OFAC Compliance ; Substantive Consolidation Opinion	 	 	54	 
	ARTICLE 11
	 	EVENTS OF DEFAULT; REMEDIES	 	 	55	 
	11.01.
	 	Events of Default	 	 	55	 
	11.02.
	 	Remedies	 	 	57	 
	11.03.
	 	Cumulative Remedies; No Waiver; Other Security	 	 	59	 
	11.04.
	 	Enforcement Costs	 	 	60	 
	11.05.
	 	Application of Proceeds	 	 	60	 
	11.06.
	 	Cross-Default; Cross-Collateralization; Waiver of Marshalling of Assets	 	 	60	 
	ARTICLE 12
	 	NONRECOURSE — LIMITATIONS ON PERSONAL LIABILITY	 	 	61	 
	12.01.
	 	Nonrecourse Obligation	 	 	61	 
	12.02.
	 	Full Personal Liability	 	 	61	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	12.03.
	 	Personal Liability for Certain Losses	 	 	61	 
	12.04.
	 	No Impairment	 	 	62	 
	12.05.
	 	No Waiver of Certain Rights	 	 	63	 
	ARTICLE 13
	 	INDEMNIFICATION	 	 	63	 
	13.01.
	 	Indemnification Against Claims	 	 	63	 
	13.02.
	 	Duty to Defend	 	 	63	 
	ARTICLE 14
	 	SUBROGATION; NO USURY VIOLATIONS	 	 	64	 
	14.01.
	 	Subrogation	 	 	64	 
	14.02.
	 	No Usury	 	 	64	 
	ARTICLE 15
	 	SALE OR SECURITIZATION OF LOAN	 	 	65	 
	15.01.
	 	Splitting the Note	 	 	65	 
	15.02.
	 	Lender's Rights to Sell or Securitize	 	 	65	 
	15.03.
	 	Dissemination of Information	 	 	66	 
	15.04.
	 	Reserve Accounts	 	 	66	 
	15.05.
	 	Securitization Indemnification	 	 	66	 
	15.06.
	 	Additional Financial Information for Large Loans	 	 	67	 
	ARTICLE 16
	 	BORROW FURTHER ACTS AND ASSURANCES PAYMENT OF SECURITY RECORDING CHARGES	 	 	68	 
	16.01.
	 	Further Acts	 	 	68	 
	16.02.
	 	Replacement Documents	 	 	69	 
	16.03.
	 	Borrower Estoppel Certificates	 	 	69	 
	16.04.
	 	Recording Costs	 	 	70	 
	16.05.
	 	Publicity	 	 	70	 
	ARTICLE 17
	 	LENDER CONSENT	 	 	70	 
	17.01.
	 	No Joint Venture; No Third Party Beneficiaries	 	 	70	 
	17.02.
	 	Lender Approval	 	 	70	 
	17.03.
	 	Performance at Borrower's Expense	 	 	70	 
	17.04.
	 	Non-Reliance	 	 	71	 
	ARTICLE 18
	 	MISCELLANEOUS PROVISIONS	 	 	71	 
	18.01.
	 	Notices	 	 	71	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	18.02.
	 	Entire Agreement; Modifications; Time of Essence	 	 	72	 
	18.03.
	 	Binding Effect; Joint and Several Obligations	 	 	73	 
	18.04.
	 	Duplicate Originals; Counterparts	 	 	73	 
	18.05.
	 	Unenforceable Provisions	 	 	73	 
	18.06.
	 	Governing Law	 	 	73	 
	18.07.
	 	Consent to Jurisdiction	 	 	73	 
	18.08.
	 	WAIVER OF TRIAL BY JURY	 	 	73	 
	18.09.
	 	Good Faith	 	 	74	 
	ARTICLE 19
	 	LIST OF DEFINED TERMS	 	 	74	 
	19.01.
	 	Definitions	 	 	74	 
	ARTICLE 20
	 	FUTURE FUNDINGS	 	 	90	 
	20.01.
	 	General	 	 	90	 







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  Loan Number: 48442




LOAN AGREEMENT




(Libor Rate Loan)




          THIS LOAN AGREEMENT is made as of this 3rd day of October, 2005 by PCAA SP, LLC, a
Delaware limited liability company (“Borrower”), as borrower, and GMAC COMMERCIAL MORTGAGE
BANK, a Utah industrial bank (together with its successors and assigns, “Lender”), as
lender.




Background




          Borrower desires to obtain a commercial mortgage loan from Lender in the maximum principal
amount of $58,740,000.00 in lawful money of the United States of America. Lender is willing to
make such loan to Borrower on the terms and conditions set forth in this Loan Agreement.




Agreement




          NOW, THEREFORE, in consideration of such loan and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, Borrower and Lender agree as follows:




ARTICLE 1




DEFINED TERMS AND CONSTRUCTION GUIDELINES




     1.01. Defined Terms. Each defined term used in this Loan Agreement has the meaning
given to that term in Article 19 of this Loan Agreement unless otherwise stated in any other
provision hereof.



     1.02. General Construction. Defined terms used in this Loan Agreement may be used
interchangeably in singular or plural form, and pronouns are to be construed to cover all genders.
All references to this Loan Agreement or any agreement or instrument referred to in this Loan
Agreement shall mean such agreement or instrument as originally executed and as hereafter amended,
supplemented, extended, consolidated, restated or reinstated from time to time. The words
“herein,” “hereof” and “hereunder” and other words of similar import refer to this Loan Agreement
as a whole and not to any particular subdivision; and the words “Article” and “section” refer to
the entire article or section, as applicable and not to any particular subsection or other
subdivision. Reference to days for performance means calendar days unless Business Days are
expressly indicated.



     1.03. Property. The parties hereto acknowledge that the defined term “Property” has
been defined to collectively include each Individual Property. All references to “Property” in
this Loan Agreement shall be deemed to refer to one or more Individual Properties, as the context
requires. It is the intent of the parties hereto in making any determinations under this
Loan Agreement, including, without limitation, in determining whether (a) breach of a
representation, warranty or a covenant has occurred, (b) there has occurred a default or Event of



 









 




Default, or (c) an event has occurred which would create recourse obligations under Article 12 of
this Loan Agreement, that any such breach, occurrence or event with respect to any Individual
Property shall be deemed to be such a breach, occurrence or event with respect to the Loan.




ARTICLE 2




LOAN AMOUNT; PAYMENT TERMS; ADVANCES




     2.01. Commitment to Lend.



          (a) Loan Amount Approved. Subject to the terms and conditions set forth herein, and in
reliance on Borrower’s representations, warranties and covenants set forth herein, Lender agrees to
loan the Loan Amount to Borrower. The Loan shall be evidenced by this Loan Agreement and by the
Note made by Borrower to the order of Lender and shall bear interest and be paid upon the terms and
conditions provided herein.




          (b) Advance of Loan Amount. On the Closing Date, Lender shall advance the entire Loan
Amount to Borrower.




     2.02. Calculation of Interest.



          (a) Calculation Basis. Interest due on the Loan shall be paid for each Interest
Accrual Period, calculated based on a 360-day year and paid for the actual number of days elapsed
for any whole or partial month in which interest is being calculated.




          (b) Initial Applicable Interest Rate and Interest Rate Adjustment Date. Interest
shall accrue on outstanding principal at the rate (“Applicable Interest Rate”) which is the
LIBOR Rate plus two and seventy-five one-hundredths percent (2.75%)(as the same may be increased
pursuant to Section 2.03(d)(ii)(E) below, “Margin”). Adjustments to the Applicable
Interest Rate in connection with changes in the LIBOR Rate shall be made on the Interest Rate
Adjustment Date, except that the initial Applicable Interest Rate shall be determined two (2)
Business Days prior to the Closing Date.




          (c) LIBOR Unascertainable. Lender’s obligation to maintain interest based on the LIBOR
Rate shall be suspended and the Applicable Interest Rate shall be based on the Interest Rate Index
(plus Margin) upon Lender’s determination, in good faith, that adequate and reasonable means do not
exist for ascertaining the LIBOR Rate or that a contingency has occurred which materially and
adversely affects the London Interbank Eurodollar Market at which Lender prices loans (which
determination by Lender shall be conclusive and binding on Borrower in the absence of manifest
error). Computation of the Applicable Interest Rate based on the Interest Rate Index shall continue
until Lender determines that the circumstances giving rise to Lender’s substitution of the Interest
Rate Index for the LIBOR Rate no longer exist. Lender shall promptly notify Borrower of each such
determination.




          (d) Adjustment Due to Calculation Errors. If, at any time, Lender determines that it
has miscalculated the Applicable Interest Rate (whether because of a miscalculation of the LIBOR
Rate or otherwise), Lender shall promptly notify Borrower of the necessary correction.




2









 







If the
corrected Applicable Interest Rate represents an increase in the applicable monthly payment,
Borrower shall, within ten (10) days after receipt of such written notice, pay to Lender the
corrected amount.
If the corrected Applicable Interest Rate represents an overpayment by Borrower
to Lender and no Event of Default then exists, Lender shall refund the overpayment to Borrower or,
at Lender’s option, credit such amounts against Borrower’s payment next due hereunder.




          (e) Adjustment for Impositions on Loan Payment. All payments made by Borrower
hereunder shall be made free and clear of, and without reduction for, or on account of, any income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings hereafter
imposed, levied, collected, withheld or assessed by any government or taxing authority (other than
taxes on the overall net income or overall gross receipts of Lender imposed as a result of a
present or former connection between Lender and the jurisdiction of the government or taxing
authority imposing such; this exclusion shall not apply to a connection arising solely from
Lender’s having executed, delivered, performed its obligations under, received a payment under, or
enforced this Loan Agreement or any other Loan Document). If any such amounts are required to be
withheld from amounts payable to Lender, the amounts payable to Lender under these Loan Documents
shall be increased to the extent necessary to yield to Lender, after payment of such amounts,
interest or any such other amounts payable at the rates or in the amounts specified herein. If any
such amounts are payable by Borrower, Borrower shall pay all such amounts before penalties or
interest begin to accrue thereon and promptly send Lender a certified copy of an original official
receipt showing payment thereof. If Borrower fails to pay such amounts before penalties or
interest begin to accrue thereon or to deliver the required receipt to Lender, Borrower shall
indemnify Lender for any incremental taxes, interest or penalties that may become payable by Lender
as a result of any such failure.




          (f) Increased Costs of Maintaining Interest. If Lender determines that the adoption
of any law, regulation, rule or guideline (including, without limitation, any change regarding the
imposition or increase in reserve requirements but excluding taxes on the overall net income or
overall gross receipts of Lender imposed as a result of a present or former connection between
Lender and the jurisdiction of the government or taxing authority imposing such), whether or not
having the force of law, does or will have the effect of reducing Lender’s rate of return on the
Loan, then, from time to time, within five (5) business days after written demand by Lender (which
demand shall include an itemized calculation of the additional amounts necessary to compensate
Lender for such reduction), Borrower shall pay Lender such additional amount as will compensate
Lender for its reduction. In addition, if any law, regulation, rule or guideline hereafter is
enacted or modified, whether or not having the force of law, and compliance therewith results in an
increase in the cost to Lender (including, without limitation, a reduction in the income received
by Lender but excluding taxes on the overall net income or overall gross receipts of Lender imposed
as a result of a present or former connection between Lender and the jurisdiction of the government
or taxing authority imposing such) in making, funding or maintaining interest on the Loan at the
rate herein provided, then, within five
(5) business days after written demand by Lender, Borrower shall pay Lender the additional
amounts necessary to compensate Lender for such increased costs.




          (g) Acceleration. Notwithstanding anything to the contrary contained herein, if
Borrower is prohibited by law from paying any amount due to Lender under Section 2.02(e) or




3









 







(f),
Lender may elect to declare the unpaid principal balance of the Loan, together with all unpaid
interest accrued thereon and any other amounts due hereunder, due and payable within one hundred
twenty (120) days after Lender’s written notice to Borrower. No Prepayment Fee shall be due in
such event. Lender’s delay or failure in accelerating the Loan upon the discovery or occurrence of
an event under Section 2.02(e) or (f) shall not be deemed a waiver or estoppel against the exercise
of such right.




     2.03. Payment of Principal and Interest.



          (a) Payment at Closing. If the Loan is funded on a date other than the fifteenth
(15th) day of a calendar month, Borrower shall pay to Lender at the time of funding an interest
payment calculated by multiplying (i) (x) if the Closing Date is prior to the fifteenth (15th) day
of a calendar month, the number of days from and including the Closing Date to (but excluding) the
fifteenth (15th) day of the current month and (y) if the Closing Date is after the fifteenth (15th)
day of the month, the number of days from and including the Closing Date to (but excluding) the
fifteenth (15th) day of the next calendar month by (ii) a daily rate based on the Applicable
Interest Rate effective on the Closing Date and calculated for a 360-day year.




          (b) Payment Dates. Commencing on the ninth (9th) day of November, 2005 and
continuing on the ninth (9th) day of each and every successive month thereafter, provided that, if
the ninth (9th) day of any month is not a Business Day, such payment shall be due and payable on
the immediately following Business Day (each, a “Payment Due Date”), through and including
the Payment Due Date immediately prior to the Maturity Date, Borrower shall pay consecutive monthly
payments of interest only, at the Applicable Interest Rate (determined as of the immediately
preceding Interest Rate Adjustment Date), based on principal advanced and outstanding during the
Interest Accrual Period in which the applicable Payment Due Date occurs and any amounts due
pursuant to Section 2.02 of this Loan Agreement.




          (c) Maturity Date. Subject to Section 2.03(d) below, on the ninth (9th) day of
October, 2008 (“Maturity Date”), Borrower shall pay the entire outstanding principal
balance of the Loan, together with all accrued but unpaid interest thereon through the end of the
then–current Interest Accrual Period and all other amounts due under this Loan Agreement, the Note
or any other Loan Document; provided that, if the ninth (9th) day of such month is not a Business
Day, such payment shall be due and payable on the immediately preceding Business Day.




          (d) Extension of Maturity Date.





	 	(i)	 	Extension Option. Borrower has the
right to extend the Maturity Date of the Loan for two (2) additional,
consecutive, twelve-month
terms (each an “Extension Term”), with the first additional term
having twelve (12) months (“First Extension Term”) and
extending the Maturity Date to October 9, 2009 (“First Extended
Maturity Date”), and the second additional term having twelve
(12) months (“Second Extension Term”) and extending the First
Extended Maturity Date to October 9, 2010 (“Second Extended
Maturity Date”). Upon Borrower’s proper and timely exercise of




4









 






	 	 	 	its rights under this Section 2.03(d), the term “Maturity Date” shall
be deemed to mean the First Extended Maturity Date and, as
applicable, the Second Extended Maturity Date.
	 
	 	(ii)	 	Conditions Precedent to Maturity Date
Extension. Each of the following conditions must be satisfied in a
manner reasonably acceptable to Lender (or waived in writing by Lender)
as a condition precedent to extension of the Maturity Date:





                              (A) Borrower delivers written notice to Lender not more than ninety (90) days and not less
than thirty (30) days prior to the expiring Maturity Date advising that Borrower is exercising its
extension option, together with all materials needed by Lender to confirm that the Property
satisfies the performance criteria identified in subsection (D) below.



                              (B) Intentionally omitted.



                              (C) No Event of Default exists as of the date Borrower exercises such extension option and as
of the commencement date of the relevant Extension Term.



                              (D) Borrower demonstrates to Lender’s satisfaction that the Property achieved and maintained,
prior to the commencement date of the relevant Extension Term, the following performance criteria:
(1) for the First Extension Term, a Debt Service Coverage Constant Ratio of at least 1.15:1.00 and
(2) for the Second Extension Term, a Debt Service Coverage Constant Ratio of at least 1.15:1.00.
Notwithstanding the foregoing, Lender reserves the right at least thirty (30) days prior to the
expiration of the then Term of the Loan, to reconfirm that the Property continues to achieve the
foregoing performance criteria, based upon the most recently available financial statements, and to
condition the extension on such performance criteria being sustained until the commencement of the
Extension Term. If such performance criteria have not been achieved as of the date Borrower
exercises its extension option or any subsequent verification thereof made by Lender at least
thirty (30) days prior to the expiration of the then Term of the Loan and the Lender notifies the
Borrower of such failure to achieve the performance criteria not less than thirty (30) days prior
to the expiration of the then Term of the Loan, prior to commencement of the Extension Term,
Borrower may extend the Maturity Date provided that Borrower pays to Lender a portion of the
outstanding principal in such amount necessary for the Property to achieve the foregoing
performance criteria as of the commencement date of the Extension Term.



                              (E) Effective as of October 15, 2008, and ending on the First Extended Maturity Date, the
Margin shall be equal to 2.95%, and effective as of October 15, 2009 and ending on the Second
Extended Maturity Date, the Margin shall be equal to 3.15%.



                              (F) With respect to the First Extension Term, Borrower (i) obtains, and assigns to the benefit
of Lender, a Rate Cap which (1) will be effective for the Extension Term and provide for payments
whenever the LIBOR Rate exceeds a strike price determined by Lender for the Extension Term such
that a minimum Debt Service Coverage Ratio of 1.30:1.00 is maintained, (2) with a notional amount
equal to the Outstanding Loan Amount



5









 




and (3) otherwise satisfies all requirements of Section 2.07
of this Loan Agreement or (ii) provides evidence, satisfactory to Lender in its sole discretion,
that the Rate Cap has been extended until the First Extended Maturity Date.




                              (G) Borrower executes and delivers to Lender an amendment to this Loan Agreement, reasonably
acceptable to Lender in all respects, which confirms the date to which the Maturity Date has been
extended, the principal and interest amounts payable during the Extension Term and such other
matters as Lender may reasonably require.



                              (H) Borrower reimburses Lender for all out-of-pocket costs reasonably incurred by Lender in
processing the extension request, including, without limitation, reasonable legal fees and expenses
and, if the Loan has been included in a Securitization, a Rating Confirmation.



     2.04. Payments Generally.



          (a) Delivery of Payments. All payments due to Lender under this Loan Agreement and
the other Loan Documents are to be paid to Lender at Lender’s office located at 200 Witmer Road,
P.O. Box 809, Horsham, Pennsylvania 19044, Attn: Servicing — Accounting Manager, or at such other
place as Lender may designate to Borrower in writing from time to time in immediately available
funds. All amounts due under this Loan Agreement and the other Loan Documents shall be paid
without setoff, counterclaim or any other deduction whatsoever.




          (b) Credit for Payment Receipt. No payment due under this Loan Agreement or any of
the other Loan Documents shall be deemed paid to Lender until received by Lender at its designated
office on a Business Day prior to 2:00 p.m. Eastern Standard Time. Any payment received after the
time established by the preceding sentence shall be deemed to have been paid on the immediately
following Business Day. Each payment that is paid to Lender within ten (10) days prior to the date
on which such payment is due, and prior to its scheduled Payment Due Date, shall not be deemed a
prepayment and shall be deemed to have been received on the Payment Due Date solely for the purpose
of calculating interest due.




          (c) Invalidated Payments. If any payment received by Lender is deemed by a court of
competent jurisdiction to be a voidable preference or fraudulent conveyance under any bankruptcy,
insolvency or other debtor relief law, and is required to be returned by Lender, then the
obligation to make such payment shall be reinstated, notwithstanding that the Note may have
been marked satisfied and returned to Borrower or otherwise canceled, and such payment shall
be immediately due and payable upon demand.




          (d) Late Charges. If any payment due on a Payment Due Date is not received by Lender
on the Payment Due Date, Borrower shall pay to Lender, immediately and without demand, a late fee
equal to five percent (5%) of such delinquent amount (provided, however, that Lender agrees to
waive the late charge provided in this subsection (d) if and only if (i) such payment is received
by Lender within five (5) days after the applicable Payment Due Date and (ii) Borrower’s failure to
make the payment on the Payment Due Date occurs no more than once in any calendar year during the
term of the Loan).




6









 








          (e) Default Interest Rate. If the Loan is not paid in full on or before the Maturity
Date (subject to any extension thereto properly exercised by Borrower in accordance with this Loan
Agreement) or, if the Loan is accelerated following an Event of Default and during the continuance
thereof, the interest rate then payable on the Loan shall immediately increase to the Applicable
Interest Rate plus five hundred (500) basis points (the “Default Rate”) and continue to
accrue at the Default Rate until full payment is received or such Event of Default is waived in
writing by Lender. In addition, Lender shall have the right, without acceleration of the Loan, to
collect interest at the Default Rate on any other payment not described in the first sentence of
this subsection (e) due hereunder (including, without limitation, late charges and fees for legal
counsel) which is not received by Lender within five (5) days of the date on which such payment
originally was due, taking into account any applicable grace, notice and/or cure periods. Interest
at the Default Rate also shall accrue on any judgment obtained by Lender in connection with
collection of the Loan or enforcement of any obligations due under the other Loan Documents until
such judgment amount is paid in full.




          (f) Application of Payments. Payments of principal and interest due from Borrower
shall be applied first to the payment of late fees, then to Lender advances made to protect the
Property or to perform obligations which Borrower failed to perform, then to the payment of accrued
but unpaid interest (including, without limitation, any interest at the Default Rate), and then to
reduction of the outstanding principal. If at any time Lender receives less than the full amount
due and payable on a Payment Due Date, Lender may apply the amounts received to amounts then due
and payable in any manner and in any order determined by Lender, in its sole discretion. Following
an Event of Default, Lender may apply all payments to amounts then due in any manner and in any
order determined by Lender, in its sole discretion. Lender’s acceptance of a payment from Borrower
in an amount that is less than the full amount then due and Lender’s application of such payments
to amounts then due from Borrower shall not constitute or be deemed to constitute a waiver of the
unpaid amounts or an accord and satisfaction. No principal amount repaid may be reborrowed.




     2.05. Prepayment Rights.



          (a) Intentionally Omitted.




          (b) Prepayment. Borrower may prepay principal in whole or in part, on any Payment Due
Date as long as each of the following conditions are satisfied:





	 	(i)	 	Borrower provides written notice to Lender of
its intent to prepay not more than sixty (60) days and not less than
thirty (30) days prior to the intended prepayment date.
	 
	 	(ii)	 	No Event of Default exists as of the date
Borrower delivers notice of intent to prepay and as of the date such
prepayment is made.
	 
	 	(iii)	 	Borrower pays the following prepayment
consideration (“Prepayment Fee”) with such prepayment:





                              (A) one percent (1.00%) of the amount prepaid if the prepayment is made on or before the
twelfth (12th) Payment Due Date;



7









 





                              (B) one-half of one percent (0.50%) of the amount prepaid if the prepayment is made after the
Payment Due Date stated in clause (A) above but on or before the eighteenth (18th)
Payment Due Date; and



                              (C) zero percent (0.00%) of the amount prepaid if the prepayment is made after the Payment Due
Date stated in clause (B) above but on or before the Maturity Date.




	 	(iv)	 	Borrower pays with such prepayment all accrued
interest through the end of the then–current Interest Accrual Period
and all other outstanding amounts then due and unpaid under this Loan
Agreement and the other Loan Documents.
	 
	 	(v)	 	Lender acknowledges that the above Prepayment
Fee shall not be due in connection with a refinancing of the Loan
(including a possibly combined refinancing of the Loan and the existing
$126,000,000 loan from GMAC Commercial Mortgage Corporation to
affiliates of the Borrower), to the extent that the Lender and/or its
affiliates refinance a portion of Loan or the combined loans in an
aggregate amount of the Outstanding Loan Amount at the time of the
refinancing, provided that if the aggregate amount of the loans
refinanced by the Lender and/or its affiliates is less than the
Outstanding Loan Amount, the Prepayment Fee shall be reduced pro rata
by the portion of the Outstanding Loan Amount so refinanced by the
lender and its affiliates.





          (c) Intentionally Omitted.




          (d) Prepayment as a Result of a Casualty or Condemnation or Charges on Lender.
Prepayments arising from Lender’s application of insurance proceeds upon the occurrence of a
Casualty, the application of a condemnation award upon the occurrence of a Condemnation, or as set
forth in Section 2.02(g) may be made without payment of the Prepayment Fee.




          (e) Notice Irrevocable. Notwithstanding any provision of this Loan Agreement to the
contrary, Borrower’s notice of prepayment in accordance with subsection 2.05(b) above shall be
irrevocable, and the principal balance to be prepaid shall be absolutely and unconditionally due
and payable on or about the date specified in such notice.




     2.06. Right of First and Last Refusal. In consideration for Lender’s agreement to
waive its customary exit fee, during the first thirty-six (36) months of the term of the Loan,
Borrower agrees to grant to Lender the right of first and last refusal to refinance the Loan unless
such refinancing is provided by the ultimate controlling shareholder of the Borrower and further
agrees in the event of the sale of all or part of the Property, to introduce Lender to the
prospective purchaser of all or part of the Property. Borrower reserves the sole and exclusive
right to select the source(s) of all refinancing proposals. If Lender does not agree, in writing,
to



8









 







refinance the Loan upon the same terms set forth in any bona fide refinancing proposal received
by Borrower (a “Refinancing Proposal”) within seven (7) days after Borrower gives Lender
written notice of the terms of such Refinancing Proposal, Lender’s rights under this Section shall
terminate, provided, however, that if the material economic terms set forth in the Refinancing
Proposal are modified in any material way adverse to Borrower prior to the closing of the new loan,
Borrower shall once again notify Lender of same, and Lender shall have seven (7) days to notify
Borrower of its intent to match the revised Refinancing Proposal. If Lender does not so notify
Borrower within such seven (7) day period, Lender’s rights under this Section shall terminate.



     2.07. Interest Rate Cap/Hedge.



          (a) Initial Interest Rate Cap. On or before the date hereof, Borrower shall obtain
(i) a Rate Cap with a notional amount equal to the Loan Amount for the benefit of Lender which
provides for payments to be made by the Rate Cap Provider if, at any time during the term of the
Loan, the LIBOR Rate exceeds the Strike Rate, or (ii) a Rate Swap Agreement acceptable to Lender in
its sole discretion. Each Rate Cap required hereunder must: (i) be issued by a Rate Cap Provider
that satisfies the credit criteria set forth below in Section 2.07(c); (ii) be fully effective as
of the Closing Date; (iii) permit Borrower’s interest in the Rate Cap to be assigned to Lender
without the payment of fees or costs and without the Rate Cap Provider’s consent; (iv) contain no
cross-defaults to any other agreements among any Borrower, Rate Cap Provider and Lender, or any of
their respective Affiliates; (v) contain no performance obligations of Borrower or Lender beyond
Borrower’s payment of a one-time fee at the effective date of the Rate Cap Agreement; (vi) be
evidenced by a Rate Cap Agreement acceptable to Lender in all respects and delivered to Lender on
the Closing Date, fully executed, along with a legal opinion from Rate Cap Provider’s counsel
(which maybe in-house counsel) as to the authorization, execution and delivery by Rate Cap Provider
and enforceability in accordance with its terms (vii) comply with
criteria issued by any of the Rating Agencies regarding interest rate cap agreements
including, without limitation, the requirement for additional legal opinions from Rate Cap
Provider’s counsel; (viii) otherwise be reasonably satisfactory to Lender in all respects; and (ix)
have a notional amount equal to the Loan Amount.




          (b) Assignment to Lender as Collateral. The Rate Cap and each replacement of a Rate
Cap and each Rate Cap that Borrower is required to provide in connection with the extension of the
Maturity Date; shall be assigned to Lender as collateral. Borrower acknowledges that Borrower’s
assignment of the Rate Cap to Lender shall not be deemed completed until such time as Borrower has
delivered to Lender a written acknowledgement from the Rate Cap Provider of Borrower’s assignment
of the Rate Cap to Lender that is acceptable to Lender in all respects. All payments made by the
Rate Cap Provider shall be made directly to the Lockbox Account. Failure by the Rate Cap Provider
to make any payment under the Rate Cap shall not relieve Borrower of any of its obligations to make
any payments hereunder or any other Loan Documents.




          (c) Credit Rating of Cap Provider; Replacement Upon Adverse Change in Rating. The
Rate Cap must be issued by a Rate Cap Provider having (i) a long term unsecured debt rating of at
least “A+” from S&P; or (ii) a short-term unsecured debt rating of at least “A-1” from S&P; or
(iii) an equivalent rating by a Rating Agency approved by Lender. If, at any




9









 







time during the term
of the Loan, the Rate Cap Provider’s credit rating falls below that required in the previous
sentence, Lender shall have the right to require that Borrower, at Borrower’s expense, provide a
replacement Rate Cap from a different Rate Cap Provider which satisfies the required credit rating.
Each replacement Rate Cap shall satisfy all requirements of this Section 2.07 and, unless
otherwise agreed by Lender, shall be substantially in the form of the Rate Cap Agreement assigned
to Lender as of the Closing Date. Each replacement Rate Cap and all required documents must be
delivered to Lender within ten (10) Business Days of Lender’s notification that a replacement Rate
Cap is required.




          (d) Borrower’s Payment of Lender Review Expenses. Borrower shall pay all reasonable,
out-of-pocket expenses incurred by Lender in connection with Lender’s review and approval of the
initial Rate Cap and Rate Cap Provider, each Rate Cap due in connection with an extension of the
Maturity Date, and each replacement of a Rate Cap that is required under the terms of this Loan
Agreement, including, without limitation, reasonable out-of-pocket legal fees and expenses.




ARTICLE 3




CASH MANAGEMENT




     3.01. Lockbox. Borrower acknowledges that all Operating Income from the Property is
deposited into blocked bank accounts at local banks (“Property Banks”) by Borrower no less
than twice weekly and, Borrower shall cause such Property Manager to do likewise. Borrower shall
direct all Property Banks to make deposits of all Operating Income (other than petty cash
not to exceed $1,000 per Collection Account (as such term is defined in the Lockbox
Agreement), and amounts necessary to satisfy the minimum balance requirements of the Property
Banks, if any) to the Lockbox Account pursuant to the Lockbox Agreement in accordance with existing
practices, but no less than once weekly. Borrower acknowledges that it has sent Credit Card Issuer
Letters (as defined in the Lockbox Agreement) to all Credit Card Issuers (as defined in the Lockbox
Agreement). Prior to an Event of Default, Borrower shall have access to the Lockbox Account in
accordance with the terms and conditions of the Lockbox Agreement. Borrower agrees and covenants
not to (i) change the identity of the Property Banks, or (ii) alter or modify the terms and
conditions governing the operation of the blocked accounts at the Property Banks in any material
respect without Lender’s prior written consent, not to be unreasonably withheld, conditioned or
delayed.



ARTICLE 4




ESCROW AND RESERVE REQUIREMENTS




     4.01. Creation and Maintenance of Escrows and Reserves.



          (a) Control of Reserve Accounts. On the Closing Date, each of the Reserve Accounts
shall be established by Lender. Each Reserve Account required under this Loan Agreement shall be a
custodial account established by Lender, and, at Lender’s option, funds deposited into a Reserve
Account may be commingled with other money held by Lender. Each





10









 







Reserve Account shall be under the
sole dominion and control of Lender, and Borrower shall not have any right to withdraw funds from a
Reserve Account. Unless required by the laws of the state which govern this Loan Agreement or
otherwise expressly provided in this Loan Agreement, Borrower shall not be entitled to any earnings
or interest on funds deposited in the Tax Escrow Account and the Insurance Premium Escrow Account.
The Reserve Accounts, other than the Tax Escrow Account and the Insurance Premium Escrow Account,
shall be interest-bearing accounts, provided, however, that interest paid or payable with respect
to any Reserve Account held by or on behalf of Lender may not be based on the highest rate of
interest payable by Lender on deposits and shall not be calculated based on any particular external
interest rate or interest rate index, nor shall any such interest reflect the interest rate
utilized by Lender to calculate interest payable on deposits held with respect to any particular
loan or borrower or class of loans or borrowers, and Lender shall have no liability with respect to
the amount of interest paid and/or loss of principal. All interest earned on the Reserve Accounts
(other than the Tax Escrow Account and Insurance Premium Escrow Account) by Lender shall be
credited to such accounts. Subject to the provisions of Section 4.07, upon the occurrence of an
Event of Default, Lender may, in addition to any and all other rights and remedies available to
Lender, apply any sums then present in any or all of the Reserve Accounts to the payment of the
Debt in any order as determined by Lender in its sole discretion. If and to the extent that, as
of the Maturity Date, Borrower has previously deposited into any of the Reserve Accounts any sums
that have (a) not been applied to the payment of the amounts with respect to which such Reserve
Accounts were created or to the payment of subsequent monthly deposits required to be made into the
applicable Reserve Accounts or (b) not repaid by Lender to Borrower, then such
amounts shall be applied to the then-outstanding principal balance of the Loan, together with
all accrued and unpaid interest and other charges then payable thereon.




          (b) Funds Dedicated to Particular Purpose. Funds held in a Reserve Account are not to
be used to fund Reserve Items contemplated by a different Reserve Account, and Borrower may not use
and Lender shall have no obligation to apply funds from one Reserve Account to pay for Reserve
Items contemplated by another Reserve Account. For example, (i) funds held in the Capital
Improvements/Deferred Maintenance Escrow Account shall not be used to pay for Replacements and (ii)
funds held in the Replacement Reserve Account shall not be used to pay for Capital
Improvements/Deferred Maintenance.




          (c) Release of Reserves Upon Payment of Debt. Upon payment in full of the Loan,
Lender shall disburse to Borrower all unapplied funds, including any accrued and unpaid interest
thereon, held by Lender in the Reserve Accounts pursuant to this Loan Agreement.




          (d) Release of Individual Reserve Account after Full Performance of Reserve Items.
Lender shall disburse to Borrower all unapplied funds remaining in the Capital
Improvements/Deferred Maintenance Escrow Account upon receipt of evidence reasonably satisfactory
to Lender that (i) Borrower has completed, in the manner required by this Loan Agreement, all
Reserve Items to be funded by such Reserve Account, and (ii) no Liens (other than Liens granted in
favor of Lender) exist against the Property with respect to such Reserve Items. Lender shall not
be obligated to make any such disbursement when an Event of Default exists, and Lender may deduct
from any such disbursement all outstanding amounts then due and unpaid to Lender under the Loan
Documents.




11









 








          (e) No Obligation of Lender. Nothing in this Loan Agreement shall: (i) make Lender
responsible for making or completing any Reserve Item; (ii) require Lender to advance, disburse or
expend funds in addition to funds then on deposit in the related Reserve Account to make or
complete any Reserve Item; or (iii) obligate Lender to demand from Borrower additional sums to make
or complete any Reserve Item.




          (f) No Waiver of Default. No disbursements made from a Reserve Account at the time
when a Borrower default or Event of Default has occurred and is then continuing shall be deemed a
waiver or cure by Lender of that default or Event of Default, nor shall Lender’s rights and
remedies by prejudiced in any manner thereby.




          (g) Insufficient Amounts in a Reserve Account. Notwithstanding that Lender has the
right to require Borrower to pay any deficiency in a Reserve Account if Lender determines that
amounts in a Reserve Account are insufficient, the insufficiency of funds in a Reserve Account, or
Lender’s application of funds in a Reserve Account following an Event of Default other than for
funding of the Reserve Items, shall not relieve Borrower from its obligation to perform in full
each of its: (i) obligations and covenants under this Loan Agreement or (ii) agreements or
covenants as tenant under any Ground Lease.




     4.02. Tax Escrow.



          (a) Deposits to the Tax Reserve. On the Closing Date, Borrower has deposited such
amount as is noted on the Closing Statement for Taxes to the Tax Escrow Account which is the amount
determined by Lender that is necessary to pay when due Borrower’s obligation for Taxes upon the due
dates established by the appropriate tax or assessing authorities during the next ensuing twelve
(12) months, taking into consideration the Monthly Tax Deposits to be collected from the first
Payment Due Date to the due date for payment of Taxes. Thereafter, beginning on the first Payment
Due Date and on each Payment Due Date thereafter, Borrower shall deliver to Lender the Monthly Tax
Deposit.




          (b) Disbursement from Tax Escrow Account. Provided amounts in the Tax Reserve Account
are sufficient to pay the Taxes then due and no Event of Default exists, Lender shall pay the Taxes
as they become due on their respective due dates on behalf of Borrower by applying the funds held
in the Tax Escrow Account to the payments of Taxes then due. In making any payment of Taxes,
Lender may do so according to any bill, statement or estimate obtained from the appropriate public
office with respect to Taxes without inquiry into the accuracy of such bill, statement or estimate
or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof.




          (c) Surplus or Deficiency in Tax Escrow Account. If amounts on deposit in the Tax
Escrow Account collected for an annual tax period exceed the Taxes actually paid during such tax
period, Lender shall return the excess to Borrower or, in its discretion, credit the excess against
the payments Borrower is to make to the Tax Escrow Account for the next tax period. If amounts on
deposit in the Tax Escrow Account collected for an annual tax period are insufficient to pay the
Taxes actually due during such tax period, Lender shall notify Borrower of the deficiency and,
within ten (10) days after Borrower’s receipt of such notice, Borrower shall deliver to Lender such




12









 







deficiency amount. If, however, Borrower receives notice of any such deficiency on a date that is
within ten (10) days prior to the date that Taxes are due, Borrower will deposit the deficiency
amount within three (3) business days after its receipt of such deficiency notice.




          (d) Changes in Amount of Taxes Due; Changes in the Monthly Tax Deposit. Borrower
shall notify Lender immediately of any changes to the amounts, schedules and instructions for
payment of any Taxes of which it has or obtains knowledge and authorizes Lender or its agent to
obtain the bills for Taxes directly from the appropriate taxing authority. If the amount due for
Taxes shall increase and Lender reasonably determines that amounts on deposit in the Tax Escrow
Account will not be sufficient to pay Taxes due for an annual tax period, Lender shall notify
Borrower of such determination and of the increase needed to the Monthly Tax Deposit. Commencing
with the first Payment Due Date following such notice from Lender, Borrower shall make deposits at
the increased amount of the Monthly Tax Deposit.




     4.03. Insurance Premium Escrow.



          (a) Deposits to Insurance Premium Escrow Account. On the Closing Date, Borrower has
deposited such amount as is noted on the Closing Statement for Insurance Premiums to the Insurance
Premium Escrow Account which is the amount determined by Lender
that is necessary to pay when due Borrower’s obligation for twenty-five percent (25%) of the
annual expected Insurance Premiums.




          (b) Payments of Insurance Premiums. Borrower shall pay the Insurance Premiums as they
become due on their respective due dates and shall provide Lender with proof of such payment
promptly following such payment.




          (c) Intentionally Omitted.




          (d) Changes in Insurance Premium Amounts. Borrower shall notify Lender immediately of
any changes to the amounts, schedules and instructions for payment of any Insurance Premiums of
which it has or obtains knowledge and authorizes Lender or its agent to obtain copies of the bills
for the Insurance Premiums directly from the insurance provider or its agent. If the amount due for
Insurance Premiums shall increase and Lender reasonably determines that amounts on deposit in the
Insurance Premium Escrow Account will not be sufficient to pay for twenty-five percent (25%) of the
annual expected Insurance Premiums, Lender shall notify Borrower of such determination and of the
increase needed to the Insurance Premium Escrow Account. Promptly following such notice, but in no
event more than thirty (30) days following such notice, Borrower shall make the required deposit.
Following any failure of Borrower to provide evidence of the required monthly payment (following
notice and a five (5) day cure period), or at any time following an Event of Default, Lender may
require, in its sole discretion, change to the procedures for the escrow and payment of Insurance
Premiums, to include monthly escrows for same. If Lender requires monthly escrows, Borrower shall
deposit such amount as is determined by Lender that is necessary to pay when due Borrower’s
obligation for Insurance Premiums during the next ensuing twelve (12) months, taking into
consideration the Monthly Insurance Deposits to be collected from the next succeeding Payment Due
Date to the due date for payment of such Insurance Premiums. Thereafter, beginning on the next




13









 







succeeding Payment Due Date and on each Payment Due Date thereafter, Borrower shall deliver to
Lender the Monthly Insurance Deposit.




     4.04. Capital Improvements/Deferred Maintenance Escrow Account.



          (a) Capital Improvements/Defined Maintenance Escrow Generally. Amounts in the Capital
Improvements/Deferred Maintenance Escrow Account are to be used for the purpose of funding the
Capital Improvements/Defined Maintenance, which Borrower covenants and agrees to perform in
accordance with the terms of this Loan Agreement not later than twelve (12) months from the date
hereof.




          (b) Deposit to the Capital Improvements/Deferred Maintenance Escrow Account. On the
Closing Date, Borrower shall deposit $-0- with Lender as the reserve for completion of the Capital
Improvements/Deferred Maintenance described on Exhibit C hereto (“Capital Improvements/Deferred
Maintenance Deposit”).




          (c) Disbursements from the Capital Improvements/Deferred Maintenance Escrow Account.
Lender shall make disbursements from the Capital Improvements/Deferred
Maintenance Escrow Account upon Borrower’s performance, to Lender’s satisfaction, of all
conditions to disbursement set forth in Article 5 of this Loan Agreement.




          (d) Reassessment of Required Deposit. If at any time Lender reasonably determines
that the Capital Improvements Deposit will not be sufficient to pay the cost of the Capital
Improvements/Deferred Maintenance, Lender may notify Borrower of such determination and of the
amount estimated by Lender to make-up such deficiency. Within ten (10) days after receipt of such
notice from Lender, Borrower shall deliver the deficiency amount to Lender, and Lender shall
deposit in the Capital Improvements/Deferred Maintenance Escrow Account and hold and administer
same in accordance with this Loan Agreement.




     4.05. Replacement Reserve Account.



          (a) Replacement Reserve Generally. Amounts in the Replacement Reserve Account are to
be used for the purpose of funding the Replacements, which Replacements Borrower covenants and
agrees to perform in accordance with the terms of this Loan Agreement, and within the time periods
shown on Exhibit F attached hereto.




          (b) Deposits to the Replacement Reserve Account. On the Closing Date, Borrower shall
deposit $109,250.00 with Lender as an initial deposit to the Replacement Reserve Account.
Beginning on the first Payment Due Date and on each Payment Due Date thereafter, Borrower shall pay
$9,104.17 (“Monthly Replacement Reserve Deposit”) to Lender as a deposit to the Replacement
Reserve Account.




          Provided no Event of Default exists, the amounts on deposit in the Replacement Reserve Account
shall not exceed $109,250.00 (the “Replacement Reserve Cap”). Notwithstanding the
foregoing, the Replacement Reserve Cap may be increased not more than once annually upon mutual
agreement of Borrower and Lender. If Lender and Borrower are unable, after using good faith
efforts, to agree upon whether any increase in the Replacement Reserve Cap is necessary, and, if
so, the amount of any such increase, Lender may, but not more

14









 








frequently than once per year, engage
an independent inspector at Borrower’s expense to inspect the Property and to determine whether an
increase in the Replacement Reserve Cap is necessary to fund replacements of the nature described
in Section 4.05(d)(i) or (ii) below. In such event, the determination of the independent inspector
shall be final absent manifest error.




          Borrower’s Monthly Reserve Deposit shall be suspended at such time as and only for so long as,
the amounts on deposit in the Replacement Reserve Account equals or exceeds the Replacement Reserve
Cap. At such time as amounts on deposit in the Replacement Reserve Account are less than the
Replacement Reserve Cap, Borrower’s obligation to make the Monthly Replacement Reserve Deposit
shall be reinstated until such time as and only for so long as, the amount on deposit in the
Replacement Reserve Account equals the Replacement Reserve Cap. Borrower may, at its option,
provide a Letter of Credit which complies with the terms and conditions of Section 6.08 of this
Loan Agreement, in the amount of the Replacement Reserve Cap, in fulfillment of its obligations
under this Section 4.05, provided that, upon disbursement of
funds under such Letter of Credit, Borrower provides Lender with a replacement Letter of
Credit in the amount of the Replacement Reserve Cap.




          (c) Disbursements from the Replacement Reserve Account. Lender shall make
disbursements from the Replacement Reserve Account upon Borrower’s performance, to Lender’s
satisfaction, of all conditions to disbursement set forth in Article 5 hereof.




          (d) Reassessment of Required Monthly Deposits. The amount of the Monthly Replacement
Reserve Deposit may be increased upon the mutual agreement of Lender and Borrower if an increase is
necessary (i) to fund replacements not listed as part of the Replacements (and not intended to be
covered by the Capital Improvements/Deferred Maintenance Escrow Account) which are advisable to
keep the Property in good order, repair and marketable condition, or (ii) to fund the replacement
of any major building systems or components (e.g., roof, HVAC system) not listed as part of the
Replacements (and not intended to be covered by the Capital Improvements Escrow Account) which will
reach the end of its useful life within two (2) years of the date of Lender’s inspection. If
Lender and Borrower are unable, after using good faith efforts, to agree upon whether any increase
in the Monthly Replacement Reserve Deposit is necessary, and, if so, the amount of any such
increase, Lender may, but not more frequently than once per year, engage an independent inspector
at Borrower’s expense to inspect the Property and to determine whether an increase in the Monthly
Replacement Reserve Deposit is necessary to fund replacements of the nature described in clause (i)
or clause (ii) above. In such event, the determination of the independent inspector shall be final
absent manifest error. Promptly following such determination, whether by mutual agreement or
following the determination by the independent inspector, but in no event more than thirty (30)
days following such notice, Borrower shall commence paying the increased Monthly Replacement
Reserve Deposit.





	 	4.06.	 	Intentionally Omitted.
	 
	 	4.07.	 	Intentionally Omitted.
	 
	 	4.08.	 	Leasehold Payment Reserve Account.




15









 











          (a) Intentionally Omitted.




          (b) Deposits into the Leasehold Payment Reserve Account. On the Closing Date,
Borrower shall deposit $28,890.00 with Lender for the Leasehold Payment Reserve Account, which is
the amount determined by Lender that is necessary to pay when due Borrower’s obligations under the
Ground Lease for a minimum of one (1) month.




          (c) Payments of Leasehold Rents. Borrower shall pay all amounts due under the Ground
Lease on their respective due dates, and each month during the term of the Loan shall promptly
provide Lender with a certification which provides reasonable proof of all such payments during the
month.




          (d) Deposit Reassessment. Lender may, from time to time, based on Lender’s review of
the Ground Lease, reassess the amount determined by Lender that is necessary to pay when due
Borrower’s obligations under the Ground Lease for a minimum of one (1) month and may increase such
amount on not less than thirty (30) days written notice to Borrower if Lender determines that an
increase is necessary to maintain a proper reserve to pay all amounts likely to arise with respect
to the Ground Lease for a minimum of one (1) month. Following any failure of Borrower to provide
evidence of the required monthly payment, or following an Event of Default, Lender may require, in
its sole discretion, changes to the procedures for the escrow and payment of amounts due under the
Ground Lease, to include monthly escrows for same.




ARTICLE 5




COMPLETION OF REPAIRS RELATED TO RESERVE ACCOUNTS; CONDITIONS TO RELEASE OF FUNDS




     5.01. Conditions Precedent to Disbursements from Certain Reserve Accounts. The
following provisions apply to each request for disbursement from the Capital Improvements Escrow
Account and the Replacement Reserve Account.


      (a) Disbursement only for Completed Repairs. Disbursements shall be limited to
Reserve Items that are fully completed and paid for in full by Borrower, except to the extent
permitted under Section 5.01(b) of this Loan Agreement. At no time shall Lender be obligated to
pay amounts to Borrower in excess of the current balance in the applicable Reserve Account at the
time of disbursement.



      (b) Partial Completion. Lender may agree to disburse funds for Reserve Items prior to
completion thereof where (i) the contractor performing such work requires periodic payments
pursuant to the terms of its written contract with Borrower and Lender has given its prior written
approval to such contract, and (ii) the cost of the portion of the Reserve Item to be completed
under such contract exceeds $10,000.



      (c) Disbursement Request; Maximum Frequency and Amount. Borrower shall submit to
Lender a Disbursement Request together with such additional information as Lender may reasonably
request in connection with the Disbursement Request, at least ten (10) business days prior to the
date on which Borrower requests Lender to make a disbursement from




16









 







a Reserve Account. Unless
otherwise agreed to by Lender, Borrower may not submit, and Lender shall not be required to respond
to, more than one (1) Disbursement Request for each Reserve Account during any calendar quarter.
No Disbursement Request shall be made for less than $10,000 or the total cost of the Reserve Items,
if less.




          (d) No Existing Event of Default. Lender may refuse to make any disbursement if an
Event of Default exists as of the date on which Borrower submits the Disbursement Request or on the
date the disbursement is actually to be made.




          (e) Responsible Officer Certificate. Lender must receive a certificate, signed by a
Responsible Officer of Borrower (and, at Lender’s option, also signed by Borrower’s project
architect or engineer if (i) Borrower has engaged an architect or engineer or (ii) the disbursement
requested is for a work which is structural in nature), which certifies that:





	 	(i)	 	All information stated in the Disbursement
Request is true and correct in all material respects, each attachment
to the Disbursement Request is correct and complete in all material
respects, and if the attachment is a copy of the original, it is a true
and an accurate reproduction of the original;
	 
	 	(ii)	 	Each of the Reserve Items to be funded in
connection with the Disbursement Request was performed in a good and
workmanlike manner and in accordance with all Requirements of Law and
has been paid in full by Borrower;
	 
	 	(iii)	 	Subject to Section 5.03, each party that
supplied materials, labor or services has been paid in full (for the
portion for which disbursement is sought in the case of disbursements
authorized in accordance with Section 5.01(b) hereof); and
	 
	 	(iv)	 	In the case of disbursements authorized in
accordance with Section 5.01(b) hereof, the materials for which the
request are made are on-site at the Property and properly secured or
have been installed in the Property.





          (f) Inspection to Confirm Completion. Prior to making any disbursement Lender may
require an inspection of the Property, performed at Borrower’s expense, to verify completion
thereof.




          (g) Absence of Liens. Lender may require that Borrower provide Lender with any or all
of the following: (i) a written lien waiver acceptable to Lender from each party to be paid in
connection with the Disbursement Request; (ii) a search of title to the Property effective to the
date of the disbursement which shows no Liens other than the Permitted Encumbrances; or (iii) an
endorsement to the Title Insurance Policy which updates the effective date of such policy to the
date of the disbursement and shows no Liens other than the Permitted Encumbrances.




          (h) Payment of Lender’s Expenses. Borrower shall pay all reasonable out-of-pocket
expenses incurred by Lender in good faith in processing Borrower’s Disbursement




17









 







Request, provided
such costs are customary in the industry, including, without limitation, any inspection costs
(whether performed by Lender or an independent inspector selected by Lender) and reasonable legal
fees and expenses.




          (i) Other Items Lender Deems Necessary. Lender shall have received such other
evidence as Lender reasonably requests in connection with its confirmation that each
Reserve Item to be paid in connection with the Disbursement Request has been completed or
performed in accordance with the terms of this Loan Agreement.




     5.02. Waiver of Conditions to Disbursement. No waiver given by Lender of any
condition precedent to disbursement from a Reserve Account shall preclude Lender from requiring
that such condition be satisfied prior to making any other disbursement from a Reserve Account.



     5.03. Direct Payments to Suppliers and Contractors. Lender, at its option, may make
disbursements directly to the supplier or contractor to be paid in connection with the Disbursement
Request. Borrower’s execution of this Loan Agreement constitutes an irrevocable direction and
authorization for Lender to make requested payments directly to the supplier or contractor,
notwithstanding any contrary instructions from Borrower or notice from Borrower of a dispute with
such supplier or contractor. Each disbursement so made by Lender shall satisfy Lender’s obligation
under this Loan Agreement.



     5.04. Performance of Reserve Items.



          (a) Performance of Reserve Items. Borrower agrees to commence each Reserve Item by
its required commencement date stated on the applicable Exhibit to this Loan Agreement identifying
such Reserve Item and to pursue completion diligently of each Reserve Item on or before its
completion date stated on such Exhibit and, in the absence of a commencement date or completion
date being specified, when necessary in order to keep the Property in good order and repair, in a
good and marketable condition and as necessary to keep any portion thereof from deteriorating.
Borrower shall complete each Reserve Item in a good and workmanlike manner, using only materials of
the same or better quality than that being replaced. All Reserve Items shall be performed in
accordance with, and upon completion shall comply with, all Requirements of Law (including without
limitation obtaining and maintaining in effect all necessary permits and governmental approvals)
and all applicable insurance requirements.




          (b) Contracts. Borrower shall promptly provide to Lender copies of all contracts or
work orders with materialmen, mechanics, suppliers, subcontractors, contractors or other parties
providing labor or materials in connection with the Reserve Items. Borrower shall not enter into
any such contract or work order for $50,000 or more without Lender’s prior written approval, which
approval shall not be unreasonably withheld, conditional or delayed.




          (c) Entry onto Property. In order to perform inspections or, following an Event of
Default, to complete Reserve Items which Borrower has failed to perform, Borrower hereby grants
Lender and its agents the right, from time to time, to enter onto the Property upon prior notice to
Borrower (notice to be given not less than (2) business days prior to entry by




18









 







Lender or its agents
unless an Event of Default or an emergency exists, as determined by Lender in good faith).




          (d) Lender Remedy for Failure to Perform. In addition to Lender’s remedies following
an Event of Default, Borrower acknowledges that Lender shall have the right following an Event of
Default (but not the obligation) to complete or perform the Reserve Items for which amounts have
been reserved under this Loan Agreement and for such purpose, Borrower hereby appoints Lender its
attorney-in-fact with full power of substitution (and which shall be deemed to be coupled with an
interest and irrevocable until the Loan is paid in full and the Security Instrument is discharged
of record, with Borrower hereby ratifying all that its said attorney shall do by virtue thereof):
(i) to complete or undertake such work in the name of Borrower; (ii) to proceed under existing
contracts or to terminate existing contracts (even where a termination penalty may be incurred) and
employ such contractors, subcontractors, watchman, agents, architects and inspectors as Lender
determines necessary or desirable for completion of such work; (iii) to make any additions, changes
and corrections to the scope of the work as Lender deems necessary or desirable for timely
completion; (iv) to pay, settle or compromise all existing bills and claims which are or may become
Liens against the Property or as may be necessary or desirable for completion of such work; (v) to
execute all applications and certificates in the name of Borrower which may be required to obtain
permits and approvals for such work or completion of such work; (vi) to prosecute and defend all
actions or proceedings in connection with the repair or improvements to the Property; and (vii) to
do any and every act which Borrower might do in its own behalf to fulfill the terms of Borrower’s
obligations under this Loan Agreement. Amounts expended by Lender which exceed amounts held in the
Reserve Accounts shall be added to the Loan Amount, shall be immediately due and payable, and shall
bear interest at the Default Rate from the date of disbursement until paid in full.




ARTICLE 6




LOAN SECURITY AND RELATED OBLIGATIONS




     6.01. Security Instrument and Assignment of Rents and Leases. Payment of the Loan and
performance of the Obligations shall be secured, inter alia, by the Security Instrument and the
Assignment of Leases and Rents. Borrower shall execute at closing the Security Instrument and the
Assignment of Leases and Rents and abide by its obligations thereunder.



     6.02. Assignment of Property Management Contract. Borrower and any Property Manager
shall execute at closing the Assignment of the Property Management Contract and Subordination of
Management Fees and to abide by their respective obligations thereunder.



     6.03. Assignment of Rate Cap Agreement. Borrower shall execute and deliver at closing
the assignment and consent with respect to the Rate Cap as contemplated by Section 2.07 of this
Loan Agreement and abide by its obligations thereunder.



     6.04. Assignment of Operating Agreements. As security for payment of the Loan and
performance by Borrower of all Obligations, Borrower hereby transfers, sets over and assigns to



19









 




Lender, to the extent assignable, all of Borrower’s right, title and interest in and to the
Operating Agreements to Lender for security purposes.




     6.05. Pledge as Property; Grant of Security Interest. As security for payment of the
Loan and performance by Borrower of all Obligations, Borrower hereby pledges, assigns, sets over
and transfers to Lender, and grants to Lender a continuing security interest in and to: (a) each of
the Reserve Accounts and each of the Collection Accounts, (b) all funds and monies from time to
time deposited or held in each of the Reserve Accounts and each of the Collection Accounts, and (c)
all interest accrued, if any, with respect to the Reserve Accounts and each of the Collection
Accounts; provided that Lender shall make disbursements from each of the Reserve Accounts when, as
and to the extent required by this Loan Agreement. The parties agree that each of the Reserve
Accounts and each of the Collection Accounts is a “deposit account” within the meaning of Article 9
of the UCC and that this Loan Agreement also constitutes a “security agreement” within the meaning
of Article 9 of the UCC. Borrower shall not, without Lender’s prior written consent, further
pledge, assign, transfer or grant any security interest in any of the Reserve Accounts or in any of
the Collection Accounts nor permit any Lien to attach thereto, except as may be created in favor of
Lender in connection with the Loan.



     6.06. Environmental Indemnity Agreement. Borrower and each Guarantor will be required
to execute at closing the Environmental Indemnity and to abide by their obligations thereunder.



     6.07. Guaranty of Borrower Sponsors. Each Guarantor will be required to execute at
closing the Guaranty and to abide by its obligations thereunder.



     6.08. Letter of Credit. In lieu of making cash deposits into the Replacement Reserve
Account, Borrower may, as security for its obligations under Section 4.05 of this Loan Agreement,
deliver to Lender on the Closing Date an irrevocable letter of credit (payable on sight draft) in
an amount equal to One Hundred Nine Thousand Two Hundred Fifty and no/100 dollars ($109,250.00)
(“Letter of Credit”), naming Lender as the sole beneficiary thereof. The Letter of Credit
shall: (a) be perpetual or for a term of one year with automatic renewals unless Lender receives
written notice of non-renewal from the issuing financial institution at least sixty (60) days prior
to the expiration of the then current Letter of Credit; (b) be issued by a domestic financial
institution that is not an Affiliate of Borrower and that has a long-term senior debt rating by S&P
of not less than “AA” or such other credit rating as is acceptable to Lender; (c) permit full or
partial draws without condition or charge to the beneficiary of the Letter of Credit; (d) be freely
transferable by the beneficiary of the Letter of Credit (and each successor as beneficiary) without
restriction or charge and (e) otherwise be acceptable to Lender in all respects. If Borrower
elects, in lieu of making deposits to the Replacement Reserve Account to deliver to Lender a Letter
of Credit. Borrower shall cause the Letter of Credit to remain valid and effective at all times
while the Loan is outstanding plus an additional thirty (30) days following the full payment of the
Loan unless and to the extent the Letter of Credit is drawn upon by Lender and paid in the amount
of such draw. The Letter of Credit shall be effective and delivered as of the Closing Date.
Lender shall have the right to draw in full or in part upon the Letter of Credit, without notice to
Borrower: (i) upon the occurrence of an Event of Default; (ii) if Lender has not received, at least
thirty (30) days prior to the date on which the then outstanding Letter of Credit is scheduled to
expire, a renewal or replacement Letter of Credit that



20









 




satisfies all requirements of this Section
6.08 and Borrower has not deposited into the
Replacement Reserve Account the amounts that Borrower is obligated to deposit pursuant to
Section 4.05; (iii) upon a transfer of the Loan by Lender (within the meaning of Article 15
hereof) to another party (“Transferee”), Lender or is Transferee has not been delivered
within ten (10) days of Lender’s notice of such transfer, for any reason, either an endorsement to
any Letter of Credit by the issuing financial institution evidencing Transferee as the new
beneficiary thereunder or a substitute Letter of Credit naming Transferee as beneficiary thereunder
and Borrower has not deposited into the Replacement Reserve Account the amounts that Borrower is
obligated to deposit pursuant to Section 4.05; (iv) if Borrower fails to cooperate in any manner
deemed appropriate or advisable by Lender in order for Lender to obtain an endorsement or
substitute Letter of Credit and Borrower has not deposited into the Replacement Reserve Account the
amounts that Borrower is obligated to deposit pursuant to Section 4.05; (v) if Borrower fails to
pay any transfer fee due in connection with transferring the Letter of Credit to the Transferee and
Borrower has not deposited into the Replacement Reserve Account the amounts that Borrower is
obligated to deposit pursuant to Section 4.05; or (vi) if Lender has not received within ten (10)
Business Days of the earlier of (A) Lender’s notice to Borrower that the financial institution
issuing the Letter of Credit ceases to meet the rating requirement set forth in this Section 6.08,
or (B) Borrower finding out that the financial institution issuing the Letter of Credit ceases to
meet the rating requirement set forth in this Section 6.08, a replacement Letter of Credit that
satisfies all requirements of this Section 6.08 and Borrower has not deposited into the Replacement
Reserve Account the amounts that Borrower is obligated to deposit pursuant to Section 4.05. Lender
shall be entitled to charge Borrower a reasonable processing fee for administering and reviewing
any renewal, replacement or release of the Letter of Credit which Borrower is required to provide
pursuant to this Loan Agreement and Borrower has not deposited into the Replacement Reserve Account
the amounts that Borrower is obligated to have on deposit pursuant to Section 4.05.




ARTICLE 7




SINGLE PURPOSE ENTITY REQUIREMENTS




     7.01. Commitment to be a Single Purpose Entity. Borrower represents, warrants and
covenants to Lender as follows:



          (a) Borrower has been a Single Purpose Entity at all times since its formation and will
continue to be a Single Purpose Entity at all times until the Loan has been paid in full. Borrower
has at all times since its formation been in material compliance with the Borrower criteria set
forth in Section 7.02(a) hereof.




          (b) Intentionally omitted.




          (c) As of the Closing Date, the Organizational Chart attached to this Loan Agreement as
Exhibit D is true, complete and correct.




21









 








          (d) All of the factual assumptions made in the substantive nonconsolidation opinion delivered
by Borrower’s counsel to Lender, of even date herewith, are true and correct in all material
respects.




          (e) The “single purpose entity” provisions included in the organizational documents of
Borrower shall not, without Lender’s prior written consent, be amended, rescinded or otherwise
revoked until the Loan has been paid in full.




          (f) Prior to the withdrawal or the disassociation of the Equity Owner from Borrower, Borrower
shall immediately appoint a new general partner or managing member whose organizational documents
are substantially similar to those of the original Equity Owner and, if an opinion letter
pertaining to substantive nonconsolidation was required at closing, deliver a new substantive
nonconsolidation opinion letter with respect to the new Equity Owner and its equity owners which is
acceptable in all respects to Lender and to the Rating Agencies if a Securitization has occurred.
(The requirements of this subsection shall not be construed to permit a Transfer in violation of
Article 10.)




     7.02. Definition of Single Purpose Entity.



          (a) Borrower Criteria. With respect to Borrower, a “Single Purpose Entity”
means a corporation, limited partnership or limited liability company which, at all times since its
formation and thereafter:





	 	(i)	 	has not engaged and shall not engage in any
business or activity other than with respect to Borrower, the
ownership, operation and maintenance of the Property, and activities
incidental thereto;
	 
	 	(ii)	 	has not acquired or owned and shall not acquire
or own any assets other than with respect to Borrower, the Property and
such incidental Personal Property as may be necessary for the operation
of the Property. Borrower may not acquire additional property (whether
through purchase or lease of additional land) without the prior written
consent of Lender, which consent may be conditioned upon receipt of a
Rating Confirmation;
	 
	 	(iii)	 	if such entity is (A) a limited liability
company (other than a single member limited liability company which
satisfies the requirements of clause (iv) below, in which case
satisfaction of the provisions of Section 7.02 is not required), has
had and shall have at least one (1) member that satisfies the
requirements of Section 7.02(b) below and such member is its managing
member, or (B) a limited partnership, all of its general partners have
satisfied and shall satisfy the requirements of Section 7.02(b) below;
	 
	 	(iv)	 	if such entity is a single member limited
liability company, (A) such entity shall be formed and organized under
Delaware law and otherwise comply with all other Rating Agency criteria
for single member limited liability companies (including, without
limitation,




22









 






	 	 	 	the inclusion of a “springing member” and delivery of
Delaware single member liability company opinions acceptable in all
respects to Lender and to the Rating Agencies); and (B) such entity
shall have at least one (1) Independent Director/Manager on its board
of directors/managers; provided however if this Loan becomes part of a
securitization and any Rating Agency’s criteria at such time require at
least two (2) Independent Directors/Managers, Borrower shall appoint,
or cause the appointment of, a second Independent Director/Manager;
	 
	 	(v)	 	if such entity is a corporation, has had and
shall have at least one (1) Independent Director on its board of
directors, provided, however, if this Loan becomes part of a
Securitization and any Rating Agency’s criteria at such time require at
least two (2) Independent Directors, Borrower shall appoint, or cause
the appointment of, a second Independent Director;
	 
	 	(vi)	 	has preserved and shall preserve its existence
as an entity duly organized, validly existing and in good standing (if
applicable) under the laws of the jurisdiction of its formation or
organization;
	 
	 	(vii)	 	has not merged or consolidated and shall not
merge or consolidate with any other Person;
	 
	 	(viii)	 	has not taken, and shall not take any action to dissolve, wind-up,
terminate or liquidate in whole or in part; to sell, transfer or
otherwise dispose of all or substantially all of its assets; to change
its legal structure; transfer or permit the direct or indirect transfer
of any partnership, membership or other Equity Interests, as
applicable, other than Permitted Transfers; issue additional
partnership, membership or other Equity Interests, as applicable; or
seek to accomplish any of the foregoing;
	 
	 	(ix)	 	shall not, without the unanimous written
consent of all Borrower’s partners, members, or shareholders, as
applicable, and the written consent of one hundred percent (100%) of
the members of the board of directors of the Equity Owner or board of
managers in the case of a single member limited liability company,
including without limitation the Independent Director(s)/Manager(s):
(A) file or consent to the filing of any petition, either voluntary or
involuntary, to take advantage of any applicable insolvency,
bankruptcy, liquidation or reorganization statute; (B) seek or
consent to the appointment of a receiver, liquidator or any similar
official; or (C) make an assignment for the benefit of creditors;




23









 






	 	(x)	 	shall not amend or restate its organizational
documents if such change would adversely impact the requirements set
forth in this Section 7.02;
	 
	 	(xi)	 	shall not own any subsidiary or make any
investment in, any other Person;
	 
	 	(xii)	 	shall not commingle its assets with the assets
of any other Person;
	 
	 	(xiii)	 	shall not incur any debt, secured or unsecured, direct or contingent
(including, without limitation, guaranteeing any obligation), other
than (A) the Loan and (B) customary unsecured trade payable incurred in
the ordinary course of owning and operating the Property, or capital
leases or installment financing contracts for shuttle buses, provided
the same do not exceed, in the aggregate, at any time a maximum amount
of four percent (4%) of the outstanding principal balance of the Loan,
and are paid within ninety (90) days of the date incurred (other than
the capital leases or installment financing contracts which shall be
paid in accordance with their terms);
	 
	 	(xiv)	 	shall maintain its records, books of account,
financial statements, accounting records and other entity documents
separate and apart from those of any other Person and maintain its bank
accounts separate and apart from those of any other Person who is not a
Borrower. Borrower agrees, if requested by Lender, to establish
separate bank accounts for all operating and collection accounts, all
such accounts to be in accordance with the terms and conditions of the
Lockbox Agreement;
	 
	 	(xv)	 	shall only enter into any contract or agreement
with any general partner, member, shareholder, principal or Affiliate
of Borrower or Guarantor, or any general partner, member, principal or
Affiliate thereof, upon terms and conditions that are intrinsically
fair and substantially similar to those that would be available on an
arms-length basis with third parties;
	 
	 	(xvi)	 	shall not maintain its assets in such a manner
that it will be costly or difficult to segregate, ascertain or identify
its individual assets from those of any other Person;
	 
	 	(xvii)	 	shall not assume or guaranty the debts of any other Person, hold
itself out to be responsible for the debts of another Person, or
otherwise pledge its assets for the benefit of any other Person or hold
out its credit as being available to satisfy the obligations of any
other Person;
	 
	 	(xviii)	 	shall not make any loans or advances to any other Person;




24









 






	 	(xix)	 	shall file its own tax returns as required
under federal and state law;
	 
	 	(xx)	 	shall hold itself out to the public as a legal
entity separate and distinct from any other Person and conduct its
business solely in its own name and shall correct any known
misunderstanding regarding its separate identity;
	 
	 	(xxi)	 	shall maintain adequate capital for the normal
obligations reasonably foreseeable in a business of its size and
character and in light of its contemplated business operations;
	 
	 	(xxii)	 	shall allocate shared expenses (including, without limitation, shared
office space) and to use separate stationery, invoices and checks;
	 
	 	(xxiii)	 	shall pay (or cause the Property Manager, if any, to pay on behalf
of Borrower from Borrower’s funds) its own liabilities (including,
without limitation, salaries of its own employees) from its own funds;
and
	 
	 	(xxiv)	 	shall not acquire obligations or securities of its partners, members
or shareholders, as applicable.





          (b) Equity Owner Criteria. With respect to Equity Owner, a “Single Purpose
Entity” means a corporation or a Delaware single member limited liability company which, at all
times since its formation and thereafter complies in its own right with each of the requirements
contained in Section 7.02(a)(i) – (xxiv), except that:





	 	(i)	 	with respect to Section 7.02(a)(i) the Equity
Owner shall not engage in any business or activity other than being the
sole managing member or general partner, as the case may be, of the
Borrower and owning its Equity Interest in Borrower;
	 
	 	(ii)	 	with respect to Section 7.02(a)(ii), the Equity
Owner has not and shall not acquire or own any assets other than its
Equity Interest in Borrower; and
	 
	 	(iii)	 	with respect to Section 7.02(a)(xiii) the
Equity Owner has not and shall not incur any debt, secured or
unsecured, direct or contingent (including, without limitation,
guaranteeing any obligation).





          (c) Equity Owner Criteria. So long as Borrower shall remain a single member limited
liability company formed and organized under Delaware law and otherwise complies with all other
Rating Agency criteria for single member limited liability companies (including, without
limitation, the inclusion of a “springing member”) and delivery of Delaware single member liability
company opinions acceptable in all respects to Lender and to the Rating




25









 







Agencies and Independent
Director or equivalent, Equity Owner, its single member, need not comply with the provisions of
Sections 7.02(a) or (b).




ARTICLE 8




REPRESENTATIONS AND WARRANTIES




Borrower represents and warrants to Lender that, as of the Closing Date:




     8.01. Organization; Legal Status. Borrower and each Equity Owner are duly organized,
validly existing and in good standing under the laws of its state of formation and Borrower; (a) is
duly qualified to transact business and is in good standing in each state where the Property is
located; and (b) other than as set forth on Schedule 8.01 attached hereto, has all necessary
approvals, governmental and otherwise, and full power and authority to own, operate and lease the
Property and otherwise carry on its business as now conducted and proposed to be conducted.
Borrower’s correct legal name is set forth on the first page of this Loan Agreement. Borrower is a
“registered organization” within the meaning of the UCC and Borrower’s organization identification
number issued by its state of organization is correctly stated on the signature page to this Loan
Agreement.



     8.02. Power; Authorization; Enforceable Obligations. Borrower has full power,
authority and legal right to execute, deliver and perform its obligations under the Loan Documents.
Borrower has taken all necessary action to authorize the borrowing of the Loan on the terms and
conditions of this Loan Agreement and the other Loan Documents, and Borrower has taken all
necessary action to authorize the execution and delivery of its performance under the Loan
Documents. The officer or representative of Borrower signing the Loan Documents has been duly
authorized and empowered to do so. The Loan Documents constitute legal, valid and binding
obligations of Borrower, enforceable against Borrower in accordance with their terms.



     8.03. No Legal Conflicts. The borrowing of the Loan and Borrower’s execution,
delivery and performance of its obligations under the Loan Documents will not: (a) violate,
conflict with or result in a material default (following notice and/or expiration of the related
grace/cure period without cure or both, as applicable) under any agreement or other instrument to
which Borrower is a party or by which the Property may be bound or affected, or any
Requirements of Law (including, without limitation, usury laws); (b) result in the creation or
imposition of any Lien whatsoever upon any of its assets, except the Liens created by the Loan
Documents; or (c) require any authorization or consent from, or any filing with, any Governmental
Authority (except for the recordation of the Security Instrument in the appropriate land records in
each state where the Property is located and UCC filings relating to the security interest created
hereby and by the Security Instrument which are necessary to perfect Lender’s security interest in
the Property).



     8.04. No Litigation. Except as set forth on Schedule 8.04 attached hereto, no action,
suit, or proceeding or investigation, judicial, administrative or otherwise (including, without
limitation, any reorganization, bankruptcy, insolvency or similar proceeding) currently is



26









 




pending
or, to the best of Borrower’s knowledge, threatened or contemplated against or affecting Borrower,
Equity Owner, any Guarantor or the Property that has not been disclosed by Borrower in writing to
Lender and which, if adversely determined, could reasonably be expected to have a Material Adverse
Effect.




     8.05. Business Purpose of Loan. Borrower will use the proceeds of the Loan solely for
the purpose of carrying on a business or commercial enterprise and not for personal, family or
household purposes.



     8.06. Warranty of Title. Borrower has good, marketable and insurable fee simple or
leasehold title of record to the Property, as applicable, free and clear of all Liens whatsoever
except for the Permitted Encumbrances. The Security Instrument and Assignment of Leases and Rents,
when properly recorded in the appropriate recording office, together with the UCC financing
statements required to be filed in connection therewith, will create (a) a valid, first priority,
perfected lien on the Property subject only to Permitted Encumbrances; and (b) perfected security
interests in and to, and perfected assignments as collateral of, all Personal Property (including,
without limitation, the Leases), all in accordance with the terms thereof, in each case subject
only to any Permitted Encumbrances. None of the Permitted Encumbrances, individually or in the
aggregate: (a) materially interferes with the benefits of the security intended to be provided by
the Security Instrument, (b) materially and adversely affects the value of the Property, or (c)
materially and adversely impair the use and operations of the Property. Borrower owns or has
rights in all collateral given as security for the Loan, free and clear of any and all Liens except
for Permitted Encumbrances and the Liens created in favor of Lender in connection with the Loan.
Borrower shall forever warrant, defend and preserve the title and the validity and priority of the
Liens created in favor of Lender in connection with the Loan and shall forever warrant and defend
the same to Lender against the claims of all persons except the holders of Permitted Encumbrances.



     8.07. Condition of the Property. The Improvements are fit for the purpose for which
they are used, are structurally sound, in good repair and free of material defects in materials and
workmanship. All major building systems located within the Improvements (including, without
limitation, the heating and air conditioning systems, the electrical systems, plumbing systems, and
all liquid and solid waste disposal, septic and sewer systems), if any, are in good working
order and condition and in compliance with all Requirements of Law. The Property is free from
damage caused by fire or other casualty.



     8.08. No Condemnation. Except as set forth on Schedule 8.08 attached hereto, no
Condemnation proceeding has been commenced or, to the best of Borrower’s knowledge, is contemplated
with respect to all or any portion of the Property or for the relocation of roadways providing
access to the Property.



     8.09. Requirements of Law. Except as set forth on Schedule 8.09 attached hereto, the
Property and its present and contemplated use and occupancy are in compliance in all material
respects with all Requirements of Law.



     8.10. Operating Permits. To the best of Borrower’s knowledge upon due inquiry, except
as set forth on Schedule 8.10 attached hereto, Borrower has obtained all licenses, permits,



27









 




registrations, certificates and other approvals, governmental and otherwise (including, without
limitation, zoning, building code, land use and environmental), necessary for the use, occupancy
and operation of the Property and the conduct of its business thereat, all of which are in full
force and effect as of the date hereof. No event or condition currently exists which could result
in the revocation, suspension, or forfeiture thereof. If Borrower determines that any additional
Operating Permits are required for the full use, occupancy and/or operation of the Property and the
conduct of its business thereat (collectively, the “Operating Permits”), Borrower shall
obtain such Operating Permits within thirty (30) days of the date hereof. If Borrower determines
that any of its activities on the Property require any additional Operating Permits, Borrower shall
immediately terminate such activities until it has obtained the necessary Operating Permits.




     8.11. Separate Tax Lot. Except as set forth on Schedule 8.11 attached hereto, the
Property is assessed for real estate tax purposes as one or more wholly independent tax lot or
lots, separate from any adjoining land or improvements not constituting a part of the Property.



     8.12. Flood Zone. Except as otherwise disclosed on the surveys of the Property
provided to Lender in connection with the Loan, no portion of the Improvements is located in an
area identified by the Federal Emergency Management Agency or any successor thereto, as an area
having special flood hazards.



     8.13. Adequate Utilities. The Property is adequately served by all utilities required
for the current or contemplated use thereof. All water and sewer systems are provided to the
Property by public utilities, and the Property has accepted or is equipped to accept such utility
services.



     8.14. Public Access. All public roads and streets necessary for access to the
Property for the current or contemplated use thereof have been completed, are serviceable and
all-weather, and are physically and legally open for use by the public.



     8.15. Boundaries. Except as set forth on Schedule 8.15 attached hereto, all of the
Improvements lie wholly within the boundaries and building restriction lines of the Property, and
no easements or other encumbrances affecting the Property (including, without limitation, the
Permitted Encumbrances) encroach upon any of the Improvements. No improvements on adjacent
properties encroach upon the Property.



     8.16. Mechanic Liens. No mechanics’, materialmens’ or similar liens or claims have
been, or may be, filed for work, labor or materials affecting the Property which are or may be
Liens prior, equal or subordinate to the Security Instrument.



     8.17. Assessments. No unpaid assessments for public improvements or assessments
otherwise affecting the Property currently exist or, to the best of Borrower’s knowledge, are
pending, nor are improvements contemplated to the Property that may result in any such assessments.



     8.18. Insurance. Borrower has obtained and delivered to Lender all insurance policies
Lender has required pursuant to Section 9.03 of this Loan Agreement, reflecting the insurance
coverages, amounts and other requirements set forth in this Loan Agreement. No claims have



28









 




been
made under any of such insurance policies, and no party, including Borrower, has done, by act or
omission, anything which would impair the coverage of any of such insurance policies.




     8.19. Leases. With respect to the Leases: (a) except as disclosed on Schedule
8.19(a), the Property is not subject to any Leases; (b) Borrower has delivered to Lender complete
and accurate copies of all Leases and no verbal or written agreements exist which terminate, modify
or supplement the Leases, except as otherwise disclosed to Lender in writing and acknowledged by
Lender; (c) Borrower is the sole owner of the entire lessor’s interest in the Leases and has not
assigned, pledged or otherwise transferred the Rents reserved in the Leases (except to Lender); (d)
except as disclosed on Schedule 8.19(d), all of the Leases are bona fide, arms-length agreements
with tenants unrelated to Borrower; (e) none of the Rents have been collected for more than one (1)
month in advance (and for such purpose, a security deposit shall not be deemed rent collected in
advance); (f) all security deposits, if any, have been collected and are being held by Borrower in
the full amount; (g) all work to be performed by Borrower, if any, under each Lease has been
performed as required and has been accepted unconditionally by the applicable tenant; (h) no
offsets or defenses exist in favor of any tenant under any Lease to the payment of any portion of
the Rents and Borrower has no monetary obligation to any tenant under any Lease; (i) Borrower has
not received notice from any tenant under any Lease challenging the validity or enforceability of
the applicable Lease; (j) all payments due from tenants under the Leases are current; (k) no tenant
under any Lease is in default thereunder, or is a debtor in any bankruptcy, reorganization,
insolvency or similar proceeding, or has demonstrated a history of payment problems which suggest
financial difficulty; (l) no Lease contains an option to purchase, right of first refusal to
purchase, or any other similar provision; and (m) no brokerage commissions, finders fees or similar
payment obligations are due and unpaid by Borrower or any Affiliate of Borrower regarding any
Lease.



     8.20. Management Agreement. No change in the employment agreements with the Key
Management Personnel has occurred since the date of the most recent information submitted to Lender
with respect thereto, other than any change that has been disclosed in writing to Lender.



     8.21. Financial Condition. Borrower currently is solvent and has received reasonably
equivalent value for its granting of the Liens in favor of Lender in connection with the Loan. No
change has occurred in the financial condition of Borrower, Equity Owner, Guarantor, or any of
their respective constituent equity owners, general partners or managing members which would have a
Material Adverse Effect, since the date of the most recent financial statements submitted to Lender
with respect to each such party, other than has been disclosed in writing to Lender and
acknowledged by Lender in writing.



     8.22. Taxes. Borrower and Equity Owner have filed all federal, state, county,
municipal, and city income tax returns required to have been filed by them and have paid all taxes
and related liabilities which have become due pursuant to such returns or pursuant to any
assessments received by them. Borrower does not know of any basis for any additional assessment in
respect of any such taxes and related liabilities for prior years.



     8.23. No Foreign Person. Borrower is not a “foreign person” within the meaning of
§1445(f)(3) of the Tax Code.



29









 





     8.24. Federal Regulations. Borrower is not engaged nor will it engage, principally,
or as one of its important activities, in the business of extending credit for the purpose of
“purchasing” or “carrying” any “margin stock” within the respective meanings of each of the quoted
terms under Regulation U or Regulation G.



     8.25. Investment Company Act; Other Regulations. Borrower is not an “investment
company” or a company “controlled” by an “investment company” within the meaning of the Investment
Company Act of 1940 and the regulations issued thereunder, each as amended. Borrower is not
subject to regulations under any federal or state statute or regulation which limits its ability to
incur indebtedness.



     8.26. ERISA. (a) Borrower is not, and does not maintain, contribute to, or have any
obligation to contribute to, an “employee benefit plan,” as defined in §3(3) of ERISA, subject to
Title I of ERISA, a “plan” as defined in an subject to Section 4975 of the Code, and subject
thereto, or a “governmental plan” within the meaning of Section 3(3) of ERISA; (b) none of the
assets of Borrower constitute “plan assets” of one or more such plans within the meaning of 29
C.F.R. §2510.3; and (c) Borrower is not subject to state statutes regulating investments and
fiduciary obligations with respect to governmental plans.



     8.27. No Illegal Activity as Source of Funds. No portion of the Property has been or
will be purchased, improved, equipped or furnished with proceeds of any illegal activity.



     8.28. Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering
Laws. Borrower, Equity Owner, Guarantor, the Property Manager, and to the best of Borrower’s
knowledge, after having made reasonable inquiry (a) each Person owning an interest in Borrower,
Equity Owner, a Guarantor, or the Property Manager (if the Property Manager is an Affiliate of
Borrower) and (b) any tenant whose rent exceeds 20% of the total revenue generated by relevant
Parking Lot Operation: (i) is not currently identified on OFAC List, and (ii) is not a
Person with whom a citizen of the United States is prohibited to engage in transactions by any
trade embargo, economic sanction, or other prohibition of United States law, regulation, or
Executive Order of the President of the United States. As of the Closing Date, Borrower has
implemented procedures, and will consistently apply those procedures throughout the term of the
Loan, to ensure the foregoing representations and warranties remain true and correct during the
term of the Loan.



     8.29. Brokers and Financial Advisors. Borrower has not dealt with any financial
advisor, broker, underwriter, placement agent or finder in connection with the transaction
contemplated by this Loan Agreement who may be owed a commission or other compensation which
Borrower will not have paid in full as of the Closing Date, including but not limited to, a fee to
Macquarie Securities (USA), Inc. for financial advisory services rendered in connection with the
contemplated transaction. To the extent any fee due under this Section 8.29 is not paid at
Closing, Borrower shall deposit a like sum with Lender at Closing to be held in escrow pending the
payment of such obligation.



     8.30. Equity Contribution. As of the Closing Date, Borrower’s cash investment in the
Property is not less than $16,250,000.00.



30









 





     8.31. Complete Disclosure; No Change in Facts or Circumstances. Borrower has
disclosed to Lender all material facts and has not failed to disclose any material fact that could
cause any representation or warranty made herein to be materially inaccurate, incomplete or
misleading. All information provided or supplied in connection with the application for Loan, or
in satisfaction of the terms thereof, remains true, complete and correct in all material respects,
and no adverse change in any condition or fact has occurred that would make any of such information
materially inaccurate, incomplete or misleading.



     8.32. Ground Leases.



          (a) Recording. The Ground Lease or a memorandum thereof has been duly recorded, the
Ground Lease permits the interest of the lessee thereunder to be encumbered by the Security
Instrument, and there has not been a material change in the terms of the Ground Lease since its
recordation.




          (b) No Senior Liens. Except for the Permitted Encumbrances, Borrower’s interest in
the Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority
with, the Security Instrument, other than the related ground lessor’s related fee interest.




          (c) Ground Lease Assignable. Borrower’s interest in the Ground Lease is assignable to
Lender and all required notices to, and/or consents from, the ground lessor thereunder have been
obtained with respect to any such assignment to Lender.




          (d) Default. To the best of Borrower’s knowledge upon due inquiry, the Ground Lease
is in full force and effect and no default has occurred under the Ground Lease and
there is no existing condition which, but for the passage of time or the giving of notice,
would result in a default under the terms of the Ground Lease.




          (e) Notice. The ground lessor under the Ground Lease has agreed in writing to give
notice to Lender of any default by Borrower and that notice of termination given under the Ground
Lease is not effective against Lender unless a copy of the notice has been delivered to Lender in
the manner described in the Ground Lease.




          (f) Cure. Lender is permitted a reasonable opportunity (including, where necessary,
sufficient time to gain possession of the interest of Borrower under the Ground Lease) to cure any
default under the Ground Lease, which is curable after the receipt of notice of the default before
the ground lessor thereunder may terminate the Ground Lease.




          (g) Term. The Ground Lease has a term, inclusive of renewal options, which extends
not less than twenty (20) years beyond the Maturity Date.




          (h) New Lease. The ground lessor under the Ground Lease has agreed in writing to
enter into a new lease with Lender upon termination of the Ground Lease for any reason, including
rejection of the Ground Lease in a bankruptcy proceeding, provided that Lender cures any defaults
which are susceptible to being cured.




          (i) Subleasing. The Ground Lease does not impose commercially unreasonable
restrictions on subletting, but does require the ground lessor’s prior consent.




31









 








     8.33. Survival. The representations and warranties contained in this Article 8
survive for so long as the Loan remains payable and any Obligation remains to be performed.



     8.34. Philadelphia Joint Operation. Lender and Borrower acknowledge that an affiliate
of Borrower, Parking Company of America Airports, LLC (“PCAA”) owns and operates a parking facility
(“PCAA Property”) adjacent to the Property owned by Borrower and located in Philadelphia,
Pennsylvania (“SunPark Property”). To minimize administrative costs and expenses, Borrower and
PCAA have agreed to operate such properties as a single operating unit. Accordingly, Cash Flow
Available for Debt Service calculated for the combined PCAA Property and SunPark Property shall be
allocated 85% to Borrower and 15% to PCAA.



     Under certain circumstances, Borrower has the right to exercise an option to lease from PCAA,
and PCAA has an obligation to lease to Borrower, one hundred fifty (150) parking spaces located on
the PCAA Property. In the event Borrower exercises this option, if (i) PCAA is able to replace the
loss of such spaces by acquiring approximately 1 acre of adjoining land (by acquisition or by
lease) from a third party, the ratio of Cash Flow Available for Debt Service shall remain
unchanged, or (ii) PCAA is unable to secure additional replacement land from adjoining third
parties, the ratio of Cash Flow Available for Debt Service shall become 95% to Borrower and 5% to
PCAA.



ARTICLE 9




BORROWER COVENANTS




     9.01. Payment of Debt and Performance of Obligations. Borrower shall fully and
punctually pay the Loan and perform the Obligations when and as required by the Loan Documents.
Borrower may not prepay the Loan except in strict accordance with this Loan Agreement.



     9.02. Payment of Taxes and Other Lienable Charges.



          (a) Payment Obligation. Except to the extent sums sufficient to pay Taxes or Other
Charges have been deposited with Lender in accordance with this Loan Agreement, Borrower shall
promptly and fully pay by their due date all Taxes and Other Charges now or hereafter assessed or
charged against the Property as they become due and payable. Subject to Section 9.02(b) below,
Borrower shall promptly cause to be paid and discharged any Lien which may be or become a Lien
against the Property (including, without limitation, mechanics’ or materialmens’ liens). Except to
the extent sums sufficient to pay Taxes or Other Charges have been deposited with Lender in
accordance with this Loan Agreement, Borrower shall furnish to Lender, upon request, evidence
reasonably satisfactory to Lender that all Taxes and Other Charges have been paid and are not
delinquent. Provided (i) the Tax Escrow Account has sufficient funds to pay Taxes and Other
Charges, and (ii) no Event of Default has occurred and is then continuing, Lender shall pay such
Taxes and Other Charges on Borrower’s behalf from funds in the Tax Escrow Account.




          (b) Right to Contest. After prior written notice to Lender, Borrower, at its own
expense, may contest by appropriate legal proceedings, promptly initiated and conducted in




32









 







good
faith with due diligence, the amount or validity or application in whole or in part of any of the
Taxes or Other Charges, provided that: (i) no Event of Default exists; (ii) such proceedings
suspend the collection of such Taxes or Other Charges and the Property will not be in danger of
being sold for such unpaid Taxes or Other Charges, or Borrower has paid all of such Taxes or Other
Charges under protest; (iii) such proceeding is permitted under and is conducted in accordance with
the provisions of any other instrument to which Borrower or the Property is subject and does not
constitute a default thereunder; (iv) if Borrower has not paid the disputed amounts in full under
protest, Borrower shall deposit with Lender cash (or other security as may be approved, in writing,
by Lender) in an amount which Lender deems (together with all funds then existing in the Tax Escrow
Account) sufficient to insure the payment of any such Taxes or Other Charges together with interest
and penalties thereon, if any, provided that after a Securitization, one hundred twenty-five
percent (125%) of the contested amount (plus anticipated penalty and interest) shall be deposited
with Lender (after crediting all amounts then existing in the Tax Escrow Account which are not
otherwise reserved for other known Taxes or Other Charges due or to become due); (v) Borrower
furnishes to Lender all other items reasonably requested by Lender; and (vi) upon a final
determination thereof, Borrower, subject to the provisions of the following sentence, promptly pays
the amount of any such Taxes or Other Charges, together with all costs, interest and penalties
which may be payable in connection
therewith. Lender shall pay over any security held by Lender pursuant to this Section to the
claimant entitled thereto at any time when, in Lender’s reasonable judgment, the entitlement of
such claimant is established, and, to the extent the security posted by Borrower with Lender is
insufficient to pay the full amount due (including, without limitation, any penalties or interest
thereon), Borrower shall be liable for the deficiency. If Lender pays the deficiency (which Lender
shall not be obligated to do), the amount paid by Lender shall be added to principal, shall bear
interest at the Default Rate until paid in full and payment of such amounts shall be secured by the
Security Instrument and other collateral given to secure the Loan.




     9.03. Insurance.



          (a) Insurance Required During the Loan Term. Borrower, at Borrower’s expense, shall
obtain and maintain during the term of the Loan such insurance coverage (including, without
limitation, type, minimum coverage amount, maximum deductible and acceptable exclusions) for
Borrower and the Property as Lender deems reasonably necessary considering, among other things, the
location and occupancy of the Property and all uses of the Property. Lender reserves the right to
periodically review the insurance coverage Lender has required (types, minimum coverage amounts and
maximum deductibles) and to increase or otherwise change the required coverage should Lender deem
an increase or change to be reasonably necessary under then existing circumstances. Without
limiting Lender’s rights hereunder in any respect, it shall be deemed reasonable for Lender to
require no less coverage than the coverage in place on the Closing Date. Subject to the foregoing,
Lender shall require the following insurance coverage to be effective during the term of the Loan,
coverage amounts and deductibles to be acceptable to Lender:





	 	(i)	 	Property Insurance. Casualty insurance
must be maintained for the Improvements and all Personal Property
insuring against any peril now or hereafter included within the
classification “all risks of physical loss” and in an amount at all
times equal to the full




33









 






	 	 	 	replacement cost (as reasonably determined and
adjusted from time to time by Lender) of the Improvements and Personal
Property (without taking into account any depreciation and exclusive of
excavations, footings and foundations, landscaping and paving), without
any exclusions for windstorms. In all cases where (A) the outstanding
principal balance on the Note exceeds $5,000,000.00, or (B) any part of
the Improvements constitutes a legal non-conforming use under the
Requirements of Law, such insurance must include “Ordinance of Law
Coverage,” with “Time Element,” “Loss to the Undamaged Portion of the
Building,” “Demolition Cost” and “Increased Cost of Construction”
endorsements, in the amount of coverage requested by Lender. The
policy must name Lender as an insured mortgagee under a standard
mortgagee clause. The deductible shall not exceed $10,000.00 for each
Individual Property.
	 
	 	(ii)	 	Insurance against Acts of Terrorism.
The insurance coverage provided under Section 9.03(a) in effect as of
the Closing Date and during the Loan Term must also insure against loss
or damage resulting from acts of terrorism or comparable coverage
acceptable to Lender in its discretion. The deductible shall not exceed
$10,000.00 for each Individual Property.
	 
	 	(iii)	 	Boiler and Machinery Insurance. Broad
form boiler and machinery insurance (without exclusion for explosion)
and systems breakdown coverage must be maintained, covering all steam
boilers, pipes, turbines, engines or other pressure vessels, electrical
machinery, HVAC equipment, refrigeration equipment and other similar
mechanical equipment located in, on or about the Property in such
amount per accident equal to the full replacement cost thereof (as
reasonably determined and adjusted from time to time by Lender) and
also providing coverage against loss of occupancy or use arising from
any breakdown thereof. The policy must name Lender as an insured under
a standard joint loss clause and provide that all proceeds are to be
paid to Lender.
	 
	 	(iv)	 	Flood Insurance. Flood insurance must
be maintained if any portion of the Improvements is located in an area
identified by the Federal Emergency Management Agency or any successor
thereto as a 100-year flood zone or special hazard area. The required
coverage amount shall be equal to the full replacement cost of the
Improvements and Personal Property (without taking into account any
depreciation and exclusive of excavations, footings and foundations,
landscaping and paving). Such coverage may need to be purchased
through excess carriers if the required coverage exceeds the maximum
insurance available for the Property under the then-current guidelines
published by the Federal Emergency




34









 






	 	 	 	Management Agency or any successor
thereto. The policy must name Lender as an insured mortgagee under a
standard mortgagee clause.
	 
	 	(v)	 	Business Interruption. Business
interruption insurance must be maintained in an amount sufficient to
provide the lost Operating Income for the Property for a period of not
less than one (1) year from the date of Casualty, with a six (6) month
extended period of indemnity (but a minimum of eighteen (18) months
with a six (6) month extended period of indemnity at all times during
which the outstanding principal balance of the Note is greater than
$25,000,000 and a minimum of eighteen (18) months with a twelve (12)
month extended period of indemnity at all times during which the
outstanding principal balance of the Note is greater than
$50,000,000). The policy must name Lender as a loss payee and
provide that all proceeds are to be paid to Lender.
	 
	 	(vi)	 	Liability Insurance. Commercial
general liability insurance coverage must be maintained, covering
bodily injury or death and property damage, including all legal
liability to the extent insurable and all court costs, legal fees and
expenses, arising out of, or connected with, the possession, use,
leasing, operation, maintenance or condition of the Property in such
amounts generally required by institutional lenders for properties
comparable to the Property but in no event for a combined single limit
of less than $2,000,000 aggregate and $1,000,000 per occurrence. The
required coverage must provide for claims to be made on an occurrence
basis. The policy must name Lender as an additional insured. The
insurance coverage required under this subsection (vi) may be satisfied
by a layering of Commercial General Liability, Umbrella and Excess
Liability Policies, but in no event will the Commercial General
Liability policy be written for an amount less than $1,000,000 per
occurrence and $2,000,000 aggregate for bodily injury and property
damage liability, Lender may require umbrella coverage which will be
evaluated on a case-by-case basis, but in no event less than
$25,000,000.
	 
	 	(vii)	 	Workers’ Compensation Insurance.
Workers’ compensation insurance must be maintained with respect to all
employees employed at the Property, in compliance with the laws of the
state in which the Property is located.
	 
	 	(viii)	 	Earthquake Insurance. If the Property is located in a high
earthquake hazard area, earthquake insurance must be maintained in an
amount equal to the full replacement value of the Property and for loss
of revenues and be in form, amount and with




35









 






	 	 	 	deductibles satisfactory to
Lender but in no event greater than 10% of the Allocated Loan Amount.
	 
	 	(ix)	 	Garage Keeper’s Insurance. Garage
keeper’s insurance in form and substance acceptable to Lender must be
maintained in the amount of $2,500,000 for each Individual Property and
must name Lender as an insured mortgagee under a standard mortgage
clause.
	 
	 	(x)	 	Automobile Insurance. Comprehensive
automobile liability insurance must be maintained for all owned and
non-owned vehicles used in connection with the operation, maintenance,
or management of the Property and in an amount of not less than
$1,000,000 per occurrence.
	 
	 	(xi)	 	Other Coverage. Without limiting
Lender’s rights under this Section 9.03(a), Lender may also require
Borrower to maintain builder’s risk insurance during any period of
construction, renovation or alteration of the Improvements, “dram shop”
or similar coverage if alcoholic beverages are sold at the Property,
fidelity bond coverage for employees handling Rents and other income
from the Property, environmental insurance, sinkhole coverage and other
insurance with respect to the Property or on any replacements or
substitutions thereof or additions thereto against other insurable
hazards or casualties which at the time are commonly insured against in
the case of property similarly situated, due regard being given to the
height and type of buildings, their construction, location, use and
occupancy.





          (b) Qualified Insurers; Lender’s Consent. All insurance must be issued under valid
and enforceable policies of insurance acceptable to Lender and issued by one or more domestic
primary insurers authorized to issue insurance in the state in which the Property is located. Each
insurer must have a minimum investment grade rating of “A” or better (but a minimum rating of “AA”
at all times during which the outstanding principal balance of the Note is $25,000,000 or more
unless Borrower obtains an acceptable “cut through” endorsement from a properly-rated reinsurer)
from S & P or equivalent ratings from one or more Rating Agencies acceptable to Lender. Lender’s
approval of insurance coverage at any time is not a representation or warranty concerning the
sufficiency of any coverage or the solvency of any insurer, and Lender shall not be responsible
for, nor incur any liability for, the insolvency of the insurer or other failure of the insurer to
perform.




          (c) Policy Requirements. All policies must be for a term of not less than a year and
name Lender as a beneficiary of such coverage as provided in this Section 9.03 or otherwise
identified by Lender. Each policy must also contain: (i) an endorsement or provision that permits
recovery by Lender notwithstanding the negligent or willful acts or omission of Borrower; (ii) a
waiver of subrogation endorsement as to Lender to the extent available at commercially reasonable
rates; (iii) a provision that prohibits cancellation or termination before the expiration date,
denial of coverage upon renewal, or material modification without at least




36









 







thirty (30) days prior
written notice to Lender in each instance; and (iv) effective waivers by the insurer of all claims
for Insurance Premiums against Lender. If the required insurance coverage is to be provided under
a blanket policy covering the Property and other properties and assets not part of the Property,
such blanket policy must specify the portion of the total coverage that is allocated to the
Property and any sublimit in such blanket policy which is applicable to the Property and shall
otherwise comply in all respects with the requirements of this Section 9.03.




          (d) Evidence of Insurance.



Borrower must deliver to Lender on or before the Closing Date either (i) the original of each
insurance policy required hereunder, (ii) a copy of each original policy certified by the insurance
agent to be a true, correct and complete copy of the original; (iii) the insurance binder (Acord
Form 25S provided by the insurance carrier) (as well as satisfactory proof of payment); (iv) a
certificate of insurance (Acord Form 28 provided by the insurance agent or, where form Acord Form
28 is not available, a certificate of insurance confirms the same rights as are confirmed by form
Acord Form 28), (v) an original letter from the insurance carrier on the primary layer, signed by
an officer of such carrier, attaching the form of insurance policy pursuant to which coverage will
be provided (and, if applicable, an original letter from each insurance carrier on the excess
layers, signed by an officer of each such carrier, agreeing that it is bound to the form of
insurance policy delivered by the primary carrier (i.e., agreeing to “follow form” to the primary
carrier); and (A) each such letter must set forth the date by which the policy will be delivered to
the Lender, which must not be more than sixty (60) days following the Closing Date and (B) include
as attachments all mortgagee/loss payee/additional insured endorsements. Evidence of the required
coverage for the first year of the Loan (as well as satisfactory proof of payment ) must be
delivered to Lender on or before the Closing Date and thereafter not less than thirty (30) days
prior to the expiration date of each policy.




     (e) Lender’s Right to Obtain Insurance for Borrower. If Borrower fails to deliver to
Lender the evidence of insurance coverage required by this Loan Agreement and does not cure such
deficiency within ten (10) days after Lender’s notice of nondelivery, an Event of Default shall be
deemed to have occurred (without further cure period or notice) and Lender may procure such
insurance at Borrower’s expense, without prejudice to Lender’s rights upon an Event of Default.
All amounts advanced by Lender to procure the required insurance shall be added to principal,
secured by the Security Instrument and bear interest at the Default Rate. Lender shall not be
responsible for, nor incur any liability for the insolvency of the insurer or other failure of the
insurer to perform, even though Lender has caused the insurance to be placed with the insurer after
Borrower’s failure to furnish such insurance.



     (f) Additional Insurance. Borrower shall not obtain insurance for the Property in
addition to that required by Lender without Lender’s prior written consent, which consent will not
be unreasonably withheld provided that (i) Lender is named insured on such insurance, (ii) Lender
receives evidence of such insurance as required by subsection (d) above, and (iii) such insurance
will not breach any requirements set forth in this Loan Agreement.



37









 





     9.04. Obligations upon Condemnation or Casualty. If the Property, or any portion
thereof, shall be damaged or destroyed by a Casualty or become subject to any Condemnation, the
following shall apply:



          (a) Generally. Borrower shall promptly notify Lender, in writing, of any actual or
threatened Condemnation or of any Casualty that damages or renders unusable the Property or any
part thereof and, except as otherwise provided below, shall promptly and diligently pursue
Borrower’s claim for a Condemnation award or insurance proceeds, as applicable. Borrower shall not
make any agreement in lieu of Condemnation or accept any Condemnation award without Lender’s prior
written consent (which Lender agrees not to unreasonably withhold or delay). Borrower shall not
accept any settlement of insurance proceeds with respect to a Casualty without Lender’s prior
written consent (which Lender agrees not to unreasonably withhold or delay). If requested by
Lender, Borrower agrees to provide
copies to Lender of all notices or filings made or received by Borrower in connection with the
Casualty or Condemnation or with respect to collection of the insurance proceeds or Condemnation
award, as applicable. Notwithstanding that a Casualty or Condemnation has occurred, or that rights
to a Condemnation award or insurance proceeds are pending, Borrower shall continue to pay the Loan
at the time and in the manner provided in this Loan Agreement.




          (b) Lender Right to Pursue Claim. If the amount of any claim arising with respect to
Casualty or Condemnation exceeds $250,000, Lender may elect, at Lender’s option, either: (i) to
settle and adjust any claim arising with respect to the Casualty or Condemnation without Borrower’s
consent, or (ii) to allow Borrower to settle and adjust such claim; provided that, in either case,
the insurance proceeds or Condemnation award, as applicable, is paid directly to Lender. Borrower
hereby appoints Lender its attorney-in-fact with full power of substitution (and which shall be
deemed to be coupled with an interest and irrevocable until the Loan is paid and the Security
Instrument is discharged of record, with Borrower hereby ratifying all that its said attorney shall
do by virtue thereof) to endorse any agreements, instruments or drafts received in connection with
a Casualty or Condemnation. If any portion of the insurance proceeds or Condemnation award, as
applicable, should be paid directly to Borrower, Borrower shall be deemed to hold such amounts in
trust for Lender and shall promptly remit such amounts to Lender. If the Property is sold, through
foreclosure or otherwise, prior to the receipt of the Condemnation award, Lender shall have the
right, whether or not a deficiency judgment on the Note shall have been sought, recovered or
denied, to receive the proceeds of such sale in an amount sufficient to pay the Loan in full. All
expenses reasonably incurred by Lender in the settlement and collection of amounts paid with
respect to a Casualty or Condemnation (including, without limitation, reasonable legal fees and
expenses) shall be deducted and reimbursed to Lender from the insurance proceeds or Condemnation
award, as applicable, prior to any other application thereof. The insurance proceeds or
Condemnation award paid or payable on account of a Casualty or Condemnation, as applicable
(including all business interruption insurance proceeds paid as a result of such Casualty or
Condemnation), less expenses to be reimbursed to Lender hereunder, is referred to herein as the
“Restoration Proceeds.”




          (c) Application of Restoration Proceeds; Restoration Obligations. Except as
specifically hereafter provided in subsection (d) below, Lender may, in its sole discretion,
either (i) apply the Restoration Proceeds to payment of the Loan, whether or not then due and
payable,




38









 







or (ii) hold and release the Restoration Proceeds to Borrower (A) for the costs of
Restoration undertaken by Borrower in accordance with this Loan Agreement and (B) to cover any
shortfall in Operating Income as a result of such Casualty or Condemnation that is necessary to pay
in full the debt service payments due from Borrower on each Payment Due Date and other Operating
Expenses falling due during the period until Restoration is completed; provided, however, that
Lender shall have no obligation to release Restoration Proceeds to fund amounts contemplated by
clause (B) unless (1) Lender is satisfied that Restoration Proceeds are sufficient to pay in full
the estimated cost to complete Restoration and (2) all Operating Expenses to be funded with
Restoration Proceeds are approved by Lender. If Lender applies Restoration Proceeds to payment of
the Loan and the Loan is still outstanding, interest will continue to accrue and be due on the
unpaid principal at the Applicable Interest Rate. If Lender makes the Restoration
Proceeds available to Borrower for Restoration, Borrower shall diligently pursue Restoration
so as to restore the Property to at least equal value and substantially the same character as
existed immediately prior to such Casualty or Condemnation. Provided the cost of Restoration
exceeds $250,000, all plans and specifications for the Restoration and all contractors,
subcontractors and materialmen to be engaged in the Restoration, as well as the contracts under
which they have been engaged, shall be subject to Lender’s prior review and approval, which Lender
agrees not to unreasonably withhold or delay. Lender may engage, at Borrower’s expense, an
independent engineer or inspector to assist Lender in its review of the approvals requested of
Lender in connection with the Restoration and to periodically inspect the Restoration in progress
and upon substantial completion.




          (d) Condition to Release of Restoration Proceeds for Restoration. Lender agrees to
make the Restoration Proceeds available to Borrower for Restoration as long as:





	 	(i)	 	The Restoration Proceeds recovered are less
than the outstanding principal balance of the Loan.
	 
	 	(ii)	 	No Event of Default exists.
	 
	 	(iii)	 	Borrower demonstrates to Lender’s satisfaction
that the Restoration Proceeds are sufficient to pay in full the
estimated cost to complete Restoration and any shortfalls in Operating
Income as a result of such Casualty or Condemnation that are
anticipated until Restoration is substantially completed, or, if the
Restoration Proceeds are determined by Lender to be insufficient to pay
such costs in full, Borrower deposits with Lender, in cash or by a cash
equivalent acceptable to Lender, the additional amount estimated by
Lender to be necessary to pay the full cost of Restoration
(“Restoration Deficiency Deposit”).
	 
	 	(iv)	 	Intentionally Omitted.
	 
	 	(v)	 	Restoration can be completed not later than the
earlier of (A) twelve (12) months from the date the Casualty or
Condemnation occurred, (B) the earliest date by which completion is
required under the Requirements of Law to preserve the right to rebuild
the




39









 






	 	 	 	Improvements as they existed prior to the Casualty or Condemnation, (C)
the expiration of Borrower’s business interruption insurance, or (D)
six (6) months prior to the Maturity Date (without taking into
consideration any unexercised extension).
	 
	 	(vi)	 	If a Condemnation has occurred, (A) less than
ten percent (10%) of the Land is taken and the land taken is along the
perimeter or periphery of the Land, and (B) no portion of any
structural
Improvements are taken which would have a Material Adverse Effect.
	 
	 	(vii)	 	If a Casualty has occurred, (A) less than 10%
of the paved parking area of the Individual Property is damaged or
rendered unusable by the Casualty, and (B) no portion of any structural
Improvements are damaged or rendered unusable which would have a
Material Adverse Effect.
	 
	 	(viii)	 	Intentionally Omitted.
	 
	 	(ix)	 	The Property and its use after completion of
Restoration will be in compliance in all material respects with, and
permitted under, all Requirements of Law.





          (e) Disbursement Procedure; Holdback. If the Restoration Proceeds will be made
available by Lender to Borrower for Restoration and the estimated cost of Restoration approved by
Lender (together with all other amounts then held by Borrower pursuant to this subsection (e)) is
less than $250,000, Lender shall disburse the entire amount of the Restoration Proceeds to
Borrower, and Borrower hereby covenants and agrees to use the Restoration Proceeds solely for
Restoration performed in accordance with this Loan Agreement. If, however, the estimated cost of
Restoration approved by Lender (together with all other amounts then held by Borrower pursuant to
this subsection (e)) is $250,000 or more than $250,000, Lender may retain the Restoration Proceeds
in an interest bearing escrow account and make periodic disbursements to Borrower as follows:





	 	(i)	 	Disbursements for Restoration.





                              (A) Lender will disburse Restoration Proceeds for the costs of Restoration to, or as directed
by, Borrower from time to time during the course of the Restoration, upon receipt of evidence
reasonably satisfactory to Lender that (1) all materials installed and work and labor performed in
connection with the Restoration have been paid in full (except to the extent that they are to be
paid out of the requested disbursement), and (2) there exist no notices of pendency, stop orders,
mechanic’s or materialmens’ liens or notices of intention to file same, or any other Liens of any
nature whatsoever on the Property arising out of the Restoration which have not either been fully
bonded and discharged of record or, in the alternative, fully insured to Lender’s reasonable
satisfaction by the title company insuring the Lien of the Security Instrument.



40









 





                              (B) Lender may limit disbursements to not more than one (1) per month.



                              (C) Lender may hold-back from each requested disbursement an amount equal to the greater of
(1) ten percent (10%) of the requested disbursement or (2) the amount which Borrower is permitted
to withhold under its contract with the contractor or
supplier to be paid with the proceeds of such disbursement (either, a “Restoration
Holdback”). Amounts held as the Restoration Holdback shall be disbursed once: (1) Lender
receives satisfactory evidence that Restoration has been fully completed in accordance with all
Requirements of Law; (2) Lender receives satisfactory evidence that all Restoration costs have been
paid in full or will be fully paid from the remaining Restoration Proceeds and the Restoration
Holdback; and (3) Lender receives, at Lender’s option, a search of title to the Property, effective
as of the date on which the Restoration Holdback is to be disbursed, showing no Liens other than
the Permitted Encumbrances or an endorsement to its Title Insurance Policy which updates the
effective date of such policy to the date on which the Restoration Holdback is to be disbursed and
which shows no Liens since the date of recordation of the Security Instrument (other than the
Permitted Encumbrances).



                              (D) Notwithstanding subsection I above, Lender may release from the Restoration Holdback
payments to a contractor or supplier if: (1) Lender receives satisfactory evidence that such
contractor has satisfactorily completed its contract with Borrower; (2) such contractor or supplier
delivers to Lender an acceptable written waiver of its mechanic’s lien, in recordable form; and (3)
Borrower provides written consent from the surety company, if any, which has issued a payment or
performance bond with respect to such contractor or supplier.




	 	(ii)	 	Disbursements for Shortfalls in Operating
Income. Provided that Lender determines that the Restoration
Proceeds are sufficient to pay in full the estimated cost to complete
Restoration, Lender will disburse Restoration Proceeds not reserved for
Restoration to pay the shortfall in Operating Income necessary to pay
(A) first, the debt service payments due from Borrower on each Payment
Due Date falling due from the date of the Casualty or Condemnation
through the date on which Restoration is substantially completed and
(B) then, any Operating Expenses approved by Lender. Lender may
require satisfactory evidence that Operating Expenses to be paid have
been incurred and may issue payments directly to the Person entitled to
the payment claimed as an Operating Expense.
	 
	 	(iii)	 	Restoration Proceeds Deemed
Insufficient. If, in Lender’s judgment, at any time during
Restoration, the undisbursed portion of the Restoration Proceeds shall
not be sufficient to pay the costs remaining for Restoration to be
completed or to pay any shortfall in Operating Income needed to pay in
full Borrower’s debt service payments on the Loan and Operating
Expenses anticipated to be incurred during the period of Restoration,
Borrower shall deposit




41









 






	 	 	 	the deficiency with Lender, in cash or by a cash
equivalent acceptable to Lender (also called a “Restoration
Deficiency Deposit”), within ten (10) days after Lender’s notice of
such deficiency, and no further disbursement of the Restoration
Proceeds will be made until such funds are deposited. Amounts held
by Lender as the Restoration Deficiency Deposit shall be disbursed in
accordance with this Section 9.04.
	 
	 	(iv)	 	Consequence of Event of Default.
Lender shall not be obligated to disburse Restoration Proceeds or
amounts from the Restoration Holdback when an Event of Default exists,
and upon the occurrence of an Event of Default, any undisbursed portion
of the Restoration Proceeds (including the Restoration Deficiency
Deposit and the Restoration Holdback) may, at Lender’s option, be
applied against the Loan, whether or not then due or accelerated, in
such order and manner as Lender determines.
	 
	 	(v)	 	Surplus Restoration Proceeds After
Restoration Completion. Any Restoration Proceeds remaining after
full payment of Restoration costs and unpaid expenses due to Lender for
which Lender is permitted reimbursement under this Section 9.04 shall
be released to Borrower provided no Event of Default exists, and
Borrower delivers evidence satisfactory to Lender that (i) Restoration
has been fully completed in accordance with all Requirements of Law and
(ii) the Property is free and clear of all Liens which may be asserted
with respect to the Restoration.





     9.05. Inspections and Right of Entry. Lender and its agents may enter the Property
upon prior notice to Borrower (notice to be given not less than two (2) business days prior to
entry by Lender or its agents unless an Event of Default or an emergency exists, as determined by
Lender in good faith) to inspect the Property and Borrower’s books and records relating to the
Property. In making such entry and inspection, Lender agrees to use reasonable efforts to minimize
disturbance to Borrower and tenants of the Property. Lender and its agents shall have access, at
all reasonable times, to the Property, including, without limitation, all contracts, plans and
specifications, permits, licenses and approvals required or obtained in connection with the
Property.



     9.06. Leases and Rents.



          (a) Right to Enter into New Leases. Borrower may enter into new Leases for space at
the Property and renew or extend existing Leases only with Lender’s prior written consent, which
shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Lender’s approval
shall not be required for leases (“Permitted Leases”) which (i) are for non-parking related
uses, (ii) have a term of three (3) years or less, (iii) together with all other Leases affecting
the operation of the Individual Property in question, do not generate in excess of five percent
(5%) of the gross revenue attributable to such operation of the Individual Property, and (iv) do
not contain provisions permitting tenant mortgages, options, rights of first refusal or




42









 







offer,
exclusivity, or extension options in favor of the tenant thereunder. Borrower shall
promptly deliver to Lender a copy of each executed Lease. All subleases shall be in
accordance with the terms and conditions of the applicable existing Leases.




          (b) Leasing Decisions. Other than Permitted Leases, Borrower may not, without
Lender’s prior written consent: (i) amend or supplement any Lease or waive any term thereof
(including, without limitation, shortening the Lease term, reducing Rents, granting Rent
abatements, or accepting a surrender of all or any portion of the leased space); (ii) cancel or
terminate any Lease; (iii) consent to a tenant’s assignment of its Lease or subleasing of space; or
(iv) amend, supplement, waive or terminate any Lease Guaranty; provided that none of the foregoing
actions (taking into account the planned alternative use of the affected space in the case of
termination, rent reduction, surrender of space or shortening of term) will have a Material Adverse
Effect on the value of the Property taken as a whole and such Lease, as amended, supplemented or
waived, is otherwise in compliance with the requirements of Section 9.06(a) hereof. Termination of
a Lease with a tenant who is in default beyond applicable notice and grace/cure periods shall not
be considered an action which has a Material Adverse Effect on the value of the Property taken as a
whole. Any action with respect to any Lease that does not satisfy the requirements set forth in
this Section 9.06 requires Lender’s prior written approval, which may not be unreasonably withheld
or delayed, at Borrower’s expense (including reasonable legal fees). Borrower shall promptly
deliver to Lender a copy of all instruments documenting the action taken, together with written
certification from a Responsible Officer that (x) the copies delivered are true, complete and
correct copies of the materials represented thereby and (y) Borrower has satisfied all conditions
of this Section 9.06. Lender’s acceptance of Borrower’s certification or a copy of such Lease
materials shall not be deemed a waiver of the requirements of this Section 9.06 if the action taken
is not in compliance herewith.




          (c) Observance of Lessor Obligations. Borrower (i) shall observe and perform all
obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything
to impair the value of any of the Leases as security for the Loan; (ii) upon Lender’s request,
shall promptly send copies to Lender of all notices of default which Borrower shall send or receive
(or may have sent or received) under any non-residential Lease; (iii) shall enforce in a
commercially reasonable manner all of the material terms, covenants and conditions contained in the
Leases to be observed or performed by the tenant; (iv) shall not collect any Rents more than one
(1) month in advance which, in the aggregate, exceed $50,000 (and for this purpose a security
deposit shall not be deemed Rent collected in advance); and (v) shall not execute any assignment or
pledge of the lessor’s interest in any of the Leases or the Rents (other than in connection with
the Loan).




     9.07. Use of Property. Borrower shall not allow changes in the use of the Property
without Lender’s prior written consent, which shall not be unreasonably withheld, conditioned or
delayed. Borrower shall not initiate, join in, or consent to any change in any private restrictive
covenant or zoning or land use ordinance limiting or defining the uses which may be made of the
Property as of the Closing Date. If use of all or any portion of the Property is or shall become a
nonconforming use, Borrower will not cause or permit the nonconforming use to be discontinued or
the nonconforming portion of the Property to be abandoned without Lender’s prior written consent.



43









 





     9.08. Maintenance of Property. Borrower shall maintain the Property in a good and
safe condition and repair. No portion of the Property shall be removed, demolished or materially
altered (except for normal repair or replacement) without Lender’s prior written consent. Borrower
shall promptly repair or replace any portion of the Property which may become damaged, worn or
dilapidated. Borrower shall obtain and maintain all licenses, permits, registrations, certificates
and other approvals, governmental and otherwise (including, without limitation, zoning, building
code, land use and environmental), necessary for the use, occupancy and operation of the Property
and the conduct of its business thereat.



     9.09. Waste. Borrower shall not commit or suffer any waste of the Property or do or
permit to be done thereon anything that may in any way impair the value of the Property or
invalidate the insurance coverage required hereunder to be maintained by Borrower. Borrower will
not, without Lender’s prior written consent, permit any drilling or exploration for or extraction,
removal, or production of any minerals from the surface or the subsurface of the Property,
regardless of the depth thereof or the method of mining or extraction thereof.



     9.10. Compliance with Laws.



          (a) Obligation to Perform. Borrower shall promptly and fully comply with all
Requirements of Law now or hereafter affecting the Property. Borrower shall notify Lender promptly
of Borrower’s knowledge or receipt of any notice related to a violation of any Requirements of Law
or of the commencement of any proceedings or investigations which relate to compliance with
Requirements of Law. At Lender’s request, Borrower shall provide Lender with copies of all
notices, reports or other documents relating to any litigation or governmental investigation
relating to Borrower or the Property.




          (b) Right to Contest. After prior written notice to Lender, Borrower, at its own
expense, may contest by appropriate legal proceedings, promptly initiated and conducted in good
faith and with due diligence, the Requirements of Law affecting the Property or alleged violation
thereof, provided that: (i) no Event of Default exists; (ii) such proceeding shall not otherwise be
prohibited by any, and shall be conducted in accordance with all Requirements of Law; (iii) the
Property will not be in danger of being sold, forfeited, terminated, cancelled or lost; (iv)
non-compliance with such Requirement of Law shall not impose any civil liability on Lender or
Borrower which has not otherwise been accounted for by the reserve created under clause (v) below,
or any criminal or environmental liability on Lender or Borrower; (v) Borrower deposits with Lender
cash (or other security reasonably acceptable to Lender) in such amount as Lender deems sufficient
to cover loss or damage that may result from Borrower’s failure to prevail in such contest,
provided that after a Securitization, one hundred twenty-five percent (125%) of the amount
estimated by Lender is deposited; (vi) Borrower furnishes to Lender all other items reasonably
requested by Lender; and (vii) upon a final determination thereof, Borrower promptly complies with
the obligations, if any, determined to be applicable.




     9.11. Financial Reports, Books and Records.



          (a) Delivery of Financial Statements. Borrower shall keep adequate books and records
of account with respect to its financial condition and the operation of the Property, in accordance
with GAAP consistently applied (or such other method which is reasonably




44









 







acceptable to Lender), and
shall furnish the following to Lender, each prepared in such detail as reasonably required by
Lender and certified by a Responsible Officer to be true, complete and correct:





	 	(i)	 	if requested by Lender (but not more often than
once per calendar quarter), a Rent Roll;
	 
	 	(ii)	 	as soon as available, but in any event within
sixty (60) days after the end of each fiscal quarter, a quarterly
operating statement for Borrower detailing the Operating Income
received, Operating Expenses incurred, the cost of all Capital
Improvements and Replacements performed or paid during such quarter,
and the Debt Service Coverage Ratio as of the end of such fiscal
quarter;
	 
	 	(iii)	 	within sixty (60) days after the end of each
fiscal quarter, a quarterly, Compliance Certificate;
	 
	 	(iv)	 	as soon as available, but in any event within
one hundred twenty (120) days after the close of Borrower’s fiscal
year, (A) an annual operating statement for each Property presented on
a basis consistent with the quarterly operating statements described
above and audited by an independent certified public accountant; (B) an
annual balance sheet and profit and loss statement for Borrower audited
by an independent certified public accountant; and (C) a statement of
change of financial position of Borrower, setting forth in comparative
form the figures for the previous fiscal year;
	 
	 	(v)	 	if requested by Lender, an annual operating
budget for Borrower presented on a monthly basis consistent with the
information required in the quarterly operating statement described
above which budget shall be subject to Lender’s approval; and
	 
	 	(vi)	 	such other financial information or property
management information (including, without limitation, copies of
Borrower’s state and federal tax returns, information on tenants under
Leases to the extent such information is available to Borrower, and an
accounting of security deposits) as may reasonably be required by
Lender from time to time.




Notwithstanding the foregoing, (i) upon the request of Lender prior to a Securitization, or (ii)
following an Event of Default. Borrower shall promptly provide monthly statements in connection
with subsections (ii) and (iii) above, within twenty (20) days following the end of each calendar
month.




          (b) Lender Audit Rights. Lender and its agents have the right, upon prior written
notice to Borrower (notice to be given at least two (2) business days prior to such inspection
unless an Event of Default exists), to examine the records, books and other papers which reflect
upon Borrower’s financial condition or pertain to the income, expense and




45









 







management of the
Property and to make copies and abstracts from such materials. Lender also shall have the right,
from time to time (but, in the absence of an Event of Default existing, not more than annually) and
upon prior notice to Borrower (notice to be given unless an Event of Default exists), to have an
independent audit conducted of any of Borrower’s financial information. Lender shall pay the cost
of such audit unless Lender performed the audit following the occurrence of an Event of Default or
if the results of Lender’s audit disclose an error in the categories of total income, total
expenses, total assets or total liabilities by more than ten percent (10%), in which case (and in
addition to Lender’s other remedies) Borrower shall pay the cost incurred by Lender with respect to
such audit upon Lender’s demand. Upon Borrower’s failure to pay such amounts, and in addition to
Lender’s remedies for Borrower’s failure to perform, the unpaid amounts shall be added to
principal, shall bear interest at the Default Rate until paid in full, and payment of such amounts
shall be secured by the Security Instrument and other collateral given to secure the Loan.




          (c) Financial Reports From Guarantors and Equity Owner. Borrower shall cause each
Guarantor and, at Lender’s request, the Equity Owner, to provide to Lender (i) within ninety (90)
days after the close of such party’s fiscal year, such party’s balance sheet and profit and loss
statement (or if such party is an individual, within ninety (90) days after the close of each
calendar year, such party’s personal financial statements) in form reasonably satisfactory to
Lender and certified by such party to be accurate and complete; and (ii) such additional financial
information (including, without limitation, copies of state and federal tax returns) as Lender may
reasonably require from time to time and in such detail as reasonably required by Lender.




          (d) Data Delivery Failure. If a Data Delivery Failure occurs, Borrower shall pay
Lender, without demand, the applicable Data Delivery Failure Fee on the first Business Day
following each occurrence of a Data Delivery Failure. If a Data Delivery Failure occurs on more
than two (2) separate occasions during any twelve month period or on more than five (5) occasions
while the Loan is outstanding, it shall be an immediate Event of Default hereunder. The collection
of the Data Delivery Failure Fee shall be in addition to Lender’s other rights and remedies under
the Loan Documents and, until paid, shall be deemed added to the Debt, secured by the Security
Instrument and shall bear interest at the Default Rate.




     9.12. Performance of Other Agreements. Borrower shall observe and perform in a timely
manner each and every obligation to be observed or performed by Borrower pursuant to the terms of
any agreement or recorded instrument affecting or pertaining to the Property or used in connection
with the operation of the Property (including, without limitation, the Operating
Agreements and the Ground Lease). Without limiting the foregoing, Borrower shall (a) give
prompt notice to Lender of any notice received by Borrower with respect to any of the Operating
Agreements and the Ground Lease which alleges a default or nonperformance by Borrower thereunder,
together with a complete copy of any such notice; (b) enforce, short of termination, performance of
the Operating Agreements and the Ground Lease to be performed or observed, and (c) not terminate or
amend, or waive compliance with, any of the Operating Agreements and the Ground Lease without
Lender’s prior written consent, except as may be (i) permitted pursuant to the respective terms
thereof or (ii) absent the existence of an Event of Default, done in the ordinary course of
business. If the absence of an Operating Agreement that has terminated will have a Material
Adverse Effect on the value of the Property, Borrower agrees to use commercially reasonable efforts
to enter into a new Operating Agreement in replacement of the



46









 




terminated Operating Agreement,
containing terms and conditions no less favorable to Borrower than the terminated Operating
Agreement. Borrower shall notify Lender if Borrower does not replace any terminated Operating
Agreement, the absence of which is likely to have a Material Adverse Effect.




     9.13. Existence; Change of Name; Location as a Registered Organization. Borrower
shall continuously maintain (a) its existence and shall not dissolve or permit its dissolution, and
(b) its rights and franchises to do business in each state where the Property is located. Borrower
shall not change Borrower’s name, legal entity, or its location as a registered organization within
the meaning of the UCC, without notifying Lender of such change in writing at least thirty (30)
days prior to its effective date. The notification requirements set forth in this Section are in
addition to, and not in limitation of, the requirements of Article 7. Borrower shall pay all costs
and expenses incurred by Lender (including, without limitation, reasonable legal fees) in
connection with any change described herein.



     9.14. Property Management.



          (a) Borrower shall cause the Property Manager to manage the Property in a first class manner.
Borrower shall not remove or replace the Property Manager (which, with respect to a Property
Manager which is an Affiliate of Borrower, shall be deemed to occur upon a change of Control of the
Property Manager) or modify or waive any material terms of the Property Management Contract without
Lender’s prior written consent and, if requested by Lender, a Rating Confirmation. Upon
replacement of the Property Manager, Borrower shall, and shall cause the new manager of the
Property to, execute an Assignment of Property Management Contract in form and substance similar to
the Assignment of Property Management Contract executed by the Property Manager. Borrower shall
comply with all obligations of Borrower under the Assignment of Property Management Contract. The
property management fee and all other fees payable under the Property Management Contract shall not
exceed 3.5% of Operating Income.




          (b) Termination of Property Manager. Borrower agrees, that, if (i) irrespective of whether an
Event of Default exists, Lender, in its reasonable discretion, determines that the Property is not
being properly managed in accordance with management practices customarily employed for properties
similar to the Property, (ii) an Event of Default
exists, (iii) a default or event of default exists under the Property Management Contract, or
(iv) Property Manager becomes insolvent, Lender may direct Borrower to terminate the Property
Management Contract and to replace Property Manager with a management company acceptable to Lender,
provided that, with respect to Section 9.14(b)(i) only, prior to requiring the termination of the
Property Management Contract, Lender shall deliver written notice to Borrower and Property Manager,
which notice shall specify in reasonable detail the grounds for Lender’s determination. If Lender
reasonably determines that the conditions specified in Lender’s notice are not remedied to Lender’s
reasonable satisfaction by Borrower or Property Manager within thirty (30) days from receipt of
such notice or if Borrower or Property Manager have failed to diligently undertake correcting such
conditions within such thirty (30) day period, Lender may direct Borrower to terminate the Property
Management Contract and to replace Property Manager with a management company acceptable to Lender.




47









 








     9.15. ERISA. Borrower shall not engage in any transaction which would cause any
obligation or action taken or to be taken hereunder by Borrower (or the exercise by Lender of any
of its rights under any of the Loan Documents) to be a non-exempt (under a statutory or
administrative class exemption) prohibited transaction under ERISA. Borrower agrees to deliver to
Lender such certifications or other evidence throughout the term of the Loan as requested by Lender
in its sole discretion to confirm compliance with Borrower’s obligations under this Section 9.15 or
to confirm that Borrower’s representations and warranties regarding ERISA remain true.



     9.16. Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering
Laws. Borrower shall comply in all material respects with all Requirements of Law relating to
money laundering, anti-terrorism, trade embargos and economic sanctions, now or hereafter in
effect. Upon Lender’s request from time to time during the term of the Loan, Borrower shall
certify in writing to Lender that Borrower’s representations, warranties and obligations under
Section 8.28 and this Section 9.16 remain true and correct in all material respects and have not
been breached. Borrower shall immediately notify Lender in writing if any of such representations,
warranties or covenants are no longer true or have been breached or if Borrower has a reasonable
basis to believe that they may no longer be true or have been breached in any material respect. In
connection with such an event, Borrower shall comply in all material respects with all Requirements
of Law and directives of Governmental Authorities and, at Lender’s request, provide to Lender
copies of all notices, reports and other communications exchanged with, or received from,
Governmental Authorities relating to such an event. Borrower shall also reimburse Lender any
reasonable expense incurred by Lender in evaluating the effect of such an event on the Loan and
Lender’s interest in the collateral for the Loan, in obtaining any necessary license from
Governmental Authorities as may be necessary for Lender to enforce its rights under the Loan
Documents, and in complying with all Requirements of Law applicable to Lender as the result of the
existence of such an event and for any penalties or fines imposed upon Lender as a result thereof



     9.17. Equity Contribution. On the Closing Date, the equity owners of Borrower shall
provide satisfactory evidence to Lender that they have, as of the Closing Date, an aggregate
equity investment in Borrower in an amount not less than $16,250,000 in a manner which is
satisfactory to Lender.



     9.18. Net Worth Covenant. Until the Loan is paid in full, Guarantor shall maintain at
all times a Net Worth (exclusive of any direct or indirect interest in the Property) at least equal
to $20,000,000, and, within ten (10) Business Days of Lender’s request, Borrower shall demonstrate
in writing and to Lender’s reasonable satisfaction, compliance with this Section.



     9.19. Liquidity Covenant. Until the Loan is paid in full, Guarantor shall maintain at
all times a Liquidity (exclusive of any direct or indirect interest in the Property) at least equal
to $1,000,000, and, within ten (10) Business Days of Lender’s request, Borrower shall demonstrate
in writing and to Lender’s reasonable satisfaction, compliance with this Section.



     9.20. Ground Lease Covenants.



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          (a) Borrower covenants and agrees as follows: (i) promptly and faithfully to observe, perform
and comply in all material respects with all of the terms, covenants and provisions of each Ground
Lease; (ii) to refrain from doing anything and not do or permit any act, event or omission, as a
result of which, there is likely to occur a default or breach under any Ground Lease; (iii) to
promptly give Lender notice of any default under the Ground Lease upon learning of such default and
immediately deliver to Lender a copy of each notice of default and all responses to such notice of
default and all other material instruments, notices or demands received or delivered by Borrower
under or in connection with the Ground Lease; (iv) to promptly notify Lender in writing in the
event of the initiation of any litigation or arbitration proceeding affecting Borrower or the
Property under or in connection with the Ground Lease; (v) within ten (10) Business Days of each
request by Lender to furnish to Lender an estoppel certificate from Borrower in such form as Lender
may reasonably request from time to time concerning Borrower’s due observance, performance and
compliance in all material respects with the terms, covenants and provisions of the Ground Lease;
(vi) it will not voluntarily or involuntarily, directly or indirectly, assign, transfer or convey
the Property or the Leasehold Estate, nor surrender, terminate or cancel the Ground Lease nor,
without the prior written consent of Lender, fail to exercise in a timely manner any purchase
option(s) or renewal option(s) contained in the Ground Lease, if applicable, nor, without the prior
written consent of Lender; and (vii) modify, alter or amend the Ground Lease, either orally or in
writing. Any assignment, transfer, conveyance, surrender, termination, cancellation, modification,
alteration or amendment of the Ground Lease in contravention of the foregoing shall be void and of
no force and effect.




          (b) Additional Covenants. Borrower further covenants and agrees that it will not fail
to exercise in a timely manner any renewal option(s) contained in each Ground Lease, if reasonably
required by Lender, nor, without the prior written consent of Lender, modify, alter or amend any
Ground Lease, either orally or in writing, which consent (a) with respect to monetary or material
non-monetary provisions, may be granted, conditioned or withheld in Lender’s sole discretion and
(b) with respect to non-monetary, non-material provisions, may not be unreasonably withheld,
conditioned or delayed. Any assignment, transfer, conveyance,
surrender, termination, cancellation, modification, alteration or amendment of any Ground
Lease in contravention of the foregoing sentence shall be void and of no force and effect. For the
purposes of this Section 9.20(b), the phrase “material non-monetary” shall mean provisions
with respect to any of the following: (i) the term of any Ground Lease, (ii) any economic matter
(including costs passed through to Borrower) that would affect the rent or any other charge
thereunder, (iii) any security deposit, if any, (iv) defaults, events of default and remedies, (v)
termination or cancellation, (vi) disposition of casualty or condemnation proceeds, (vii) transfer
of the leased premises, (viii) tenant mortgages, (ix) assignment and subletting (other than as
otherwise permitted in such lease and this Loan Agreement) or (x) options, rights of first refusal
or offer and extension options.




          (c) Default. In the event of a default by Borrower under the Ground Lease, then, in
each and every such case, Lender may (but shall not be obligated to), in its sole discretion and
without notice to Borrower, cause such default or defaults by Borrower to be remedied and otherwise
take or perform such other actions as Lender may reasonably deem necessary or desirable as a result
thereof or in connection therewith. Borrower shall, on demand, reimburse Lender for all advances
reasonably made and expenses reasonably incurred by Lender




49









 







in curing any such default(s)
(including, without limitation, reasonable attorneys’ fees), together with interest thereon from
the date if different until the same is paid in full to Lender and all such sums so advanced shall
be secured hereby. The provisions of this subsection are in addition to any other right or remedy
given to or allowed Lender under the Ground Lease or otherwise.




          (d) Cancellation or Termination. If the Ground Lease is cancelled or terminated,
Lender or its nominee shall acquire an interest in any new lease of the Leasehold Estate by
Borrower.




          (e) Ground Lease Estoppel Certificate. Borrower shall from time to time within ten
(10) Business Days of Lender’s request to obtain and deliver (or cause to be delivered) to Lender,
an estoppel certificate, in a form reasonably acceptable to Lender, from the Ground Lessor.




          (f) No Liability. Notwithstanding anything contained herein or otherwise to the
contrary, Lender shall not have any liability or obligation under the Ground Lease, by virtue of
its acceptance of this Security Instrument. Borrower acknowledges and agrees that Lender shall be
liable for the obligations of the Borrower arising under the Ground Lease, as applicable, for only
that period of time, if any, during which Lender is in possession of the Leasehold Estate, as
applicable, or has acquired, by foreclosure, power of sale or otherwise, and is holding, all of
Borrower’s right, title and interest as tenant in either or both of the Leasehold Estate.




          (g) Bankruptcy. Notwithstanding anything contained herein or otherwise to the
contrary, Borrower hereby assigns, transfers and sets over to Lender any and all rights and
interests that may arise in favor of Borrower in connection with or as a result of the bankruptcy
or insolvency of the Ground Lessor, as applicable, including, without limitation, all of Borrower’s
right, title and interest in, to and under §365 of the Bankruptcy Code (11 U.S.C. §365), as the
same may be amended, supplemented or modified from time to time




          (h) Taxes. In the event that it is claimed by any governmental agency, authority or
subdivision that any tax or governmental charge or imposition is due, unpaid or payable by Borrower
upon or in connection with the Ground Lease, Borrower shall promptly either (i) pay such tax,
charge or imposition when due and deliver to Lender reasonably satisfactory proof of payment
thereof or (ii) contest such tax in accordance with the applicable provisions of this Loan
Agreement. If liability for such tax is asserted against Lender, Lender will give to Borrower
prompt notice of such claim, and Borrower, upon complying with the provisions of this Loan
Agreement shall have full right and authority to contest such claim of taxability.




ARTICLE 10




NO TRANSFERS OR ENCUMBRANCES; DUE ON SALE




     10.01. Prohibition Against Transfers. Borrower shall not permit any Transfer to be
undertaken or cause any Transfer to occur other than a Permitted Transfer. Any Transfer made in
violation of this Loan Agreement shall be void.



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     10.02. Lender Approval. Except as otherwise provided in this Section 10.02, Lender’s
decision to approve any Transfer proposed by Borrower shall be made in Lender’s sole discretion and
Lender shall not be obligated to approve any Transfer. Notwithstanding the foregoing, Lender will
not unreasonably withhold its consent one (1) time during the term of the Loan to a transfer or
sale (but not a pledge, mortgage, assignment, encumbrance or other transfer as security for an
obligation) of the Property and Borrower’s obligations under the Loan Documents to a Qualified
Transferee, provided Borrower satisfies all of the conditions set forth in this Section 10.02.
Borrower agrees to supply all information Lender may request to evaluate a Transfer, including,
without limitation, information regarding the proposed transferee’s ownership structure, financial
condition and management experience for comparable properties. Borrower acknowledges that Lender
may impose conditions to its approval of a Transfer, including, without limitation, (i) no Event of
Default, or an event which with the giving of notice or lapse of time or both could become an Event
of Default, has occurred and is continuing, (ii) approval of the proposed transferee’s ownership
structure, financial condition and management experience for comparable properties, (iii) payment
of an assumption fee equal to one-half of one percent (0.50%) of the outstanding principal balance
of the Loan, (iv) replacing the Guarantors with substitute guarantors reasonably acceptable to
Lender, (v) assumption in writing by the transferee and a guarantor acceptable to Lender in its
sole discretion of all obligations of the transferor and Guarantor under the Loan Documents and
execution and delivery of such other documentation as may be required by Lender and the Rating
Agencies, (vi) delivery of a new substantive nonconsolidation opinion, and other applicable
opinions as required by Lender and the Rating Agencies, (vii) adjusting amounts required for the
Reserve Accounts, and (viii) obtaining Rating Confirmations if a Securitization has occurred.
Borrower agrees to pay all of Lender’s reasonable expenses incurred in connection with reviewing
and documenting a Transfer (including, without limitation, the costs of obtaining Rating
Confirmations if required), which amounts must be paid by Borrower whether or not the proposed
Transfer is approved. Upon
Borrower’s failure to pay such amounts, and in addition to Lender’s remedies for Borrower’s
failure to perform, the unpaid amounts shall be added to principal, shall bear interest at the
Default Rate until paid in full, and payment of such amounts shall be secured by the Security
Instrument and other collateral given to secure the Loan. Lender acknowledges that Macquarie
Infrastructure Company, Inc. (“MIC”), which is the parent of Macquarie Americas Parking
Corporation (“MAPC”), which is the parent of PCAA Parent, LLC, is currently engaged in
negotiations to obtain a credit facility from Credit Suisse, Cayman Islands Branch, Citigroup
Global Markets Inc., Merrill Lynch Capital Corporation and/or Macquarie Bank Limited and/or one or
more comparable lending institutions (“Creditors”) and may in the future seek other credit
facilities from other comparable financial institutions (“Credit Facilities”).
Notwithstanding any provision of this Agreement to the contrary, Lender consents to MIC’s proposed
pledge of its equity interest in MAPC to the Creditors to secure any one or more such Credit
Facilities, which consent does not include any transfer of MIC’s equity interest in MAPC to the
Creditors pursuant to any enforcement of such pledge or otherwise.



     10.03. Borrower Right to Partial Releases for Partial Release Price.



          (a) Right to Release. Borrower shall have the right, from time to time, to obtain a
partial release (“Partial Release”) of a Release Property from the Security Instrument,
Assignment of Leases and Rents and related UCC financing statements. Borrower must provide not
less than forty-five (45) days prior written notice to Lender requesting a Partial Release and




51









 







identifying the Release Property and date upon which Borrower intends to have the Release Property
released (“Partial Release Date”). Lender shall permit a Partial Release, upon
satisfaction to Lender’s reasonable satisfaction of each of the following conditions:





	 	(i)	 	No Event of Default shall exists at the time
Borrower requests a Partial Release or on the Partial Release Date.
	 
	 	(ii)	 	On or before the Partial Release Date, Borrower
shall deliver to Lender 125% of the Allocated Loan Amount (the
“Partial Release Price” allocated to the Release Property under
this Loan Agreement.
	 
	 	(iii)	 	Borrower pays to Lender a release fee equal to
(A) one percent (1.00%) of the Partial Release Price for the applicable
Property during the first twelve (12) months of the term of the Loan;
(B) zero and one-half of one percent (0.50%) of the Partial Release
Price for the applicable Property during the thirteenth
(13th) through the eighteenth (18th) months of
the term of the Loan; or (C) no release fee thereafter. “Such release
fee is in lieu of any prepayment fee that might otherwise be payable in
connection with such Partial Release Price under Section 2.05 of this
Agreement.”
	 
	 	(iv)	 	As of the Partial Release Date, and, after
giving effect to the Partial Release to occur on such date, (A) the
Debt Service Coverage Constant Ratio is at least 1.00:1.00, the Debt
Service Coverage Ratio is at least 1.50:1.00 and (C) the Loan to Value
Ratio is at least 75%; each as determined by Lender.
	 
	 	(v)	 	The Property remaining after the Partial
Release (and all prior Partial Releases) continues to be in material
compliance with all Requirements of Law (including, without limitation,
all zoning and subdivision laws, setback requirements, parking ratio
requirements and use requirements), has direct access to a public right
of way and is subject to no material encroachments from the Release
Property and the applicable requirements of any Leases, and shall be
assessed for real estate tax purposes as one or more wholly independent
tax lot or lots, separate from any other property (including, without
limitation, the Release Property).
	 
	 	(vi)	 	Borrower has delivered to Lender forms of all
documents necessary to release the Release Property from the liens
created by the Security Instrument, Assignment of Rents and Leases and
related UCC financing statements, each in appropriate form required by
the state in which the Release Property is located and otherwise
reasonably satisfactory to Lender in all respects.
	 
	 	(vii)	 	Borrower has obtained a Rating Confirmation.




52









 






	 	(viii)	 	Borrower has delivered a Compliance Certificate along with a
certificate from a Responsible Officer certifying that the requirements
set forth in this Section 10.03 have been satisfied in all material
respects.
	 
	 	(ix)	 	Borrower has paid all amounts then due and
payable under the Loan Documents through (and including) the Release
Date and in connection with the Partial Release.
	 
	 	(x)	 	Lender shall have received a copy of a deed
conveying all of the Borrower’s right, title and interest in and to the
Release Property to a Person and a letter from Borrower countersigned
by a title insurance company acknowledging receipt of such deed and
agreeing to record such deed in the real estate records of the
appropriate recording office in which the Release Property is located.





     Following a Partial Release under this subparagraph (a) or under subparagraph (b), all
references in the Loan Documents shall be deemed to refer to the Property as it existed prior to
the Partial Release less the Release Property. Subject to the provisions of Section 9.24
hereof, any transfer or termination of any Ground Lease (whether by expiration of the stated term
or otherwise), or the loss of any license or permit or zoning designation necessary to operate the
Individual Property as a parking lot (unless Borrower proves to Lender’s reasonable satisfaction
that such license or permit can be obtained within a reasonable period of time, or, in the
alternative, such loss will not have a material adverse impact on Borrower’s Operating Income)
shall be deemed a Partial Release of such Property, and Borrower shall comply with all of the
obligations set forth in this Section 10.03(a) within five (5) days of such transfer or
termination.



          (b) Partial Release of Part of Oklahoma City Parcel. The parties agree that a portion
of the Oklahoma City Property is excess land that is not being used by the Borrower, as shown on
Exhibit H hereto (the “Excess Parcel”) and shall, upon Borrower’s written request, be
released from the liens created by the Security Instrument, Assignment of Rents and Leases and
related UCC financing statements, upon satisfaction to Lender’s reasonable satisfaction of each of
the following conditions:





	 	(i)	 	No Event of Default shall exist at the time
Borrower requests a Partial Release or on the Partial Release Date.
	 
	 	(ii)	 	Borrower has delivered to Lender forms of all
documents necessary to release the Release Property from the liens
created by the Security Instrument, Assignment of Rents and Leases and
related UCC financing statements, each in appropriate form required by
the state in which the Release Property is located and otherwise
reasonably satisfactory to Lender in all respects.





          (c) Reimbursement of Lender Expenses. Borrower agrees to pay all of Lender’s
reasonable, out-of-pocket expenses incurred in connection with reviewing and




53









 







documenting such
Partial Release (including, without limitation, the costs of obtaining Rating Confirmations if
required by Lender), which amounts must be paid by Borrower whether or not the proposed Partial
Release is approved or executed. Upon Borrower’s failure to pay such amounts, and in addition to
Lender’s remedies for Borrower’s failure to perform, the unpaid amounts shall be added to
principal, shall bear interest at the Default Rate until paid in full and payment of such amounts
shall be secured by the Security Instrument and other collateral given to secure the Loan.




          (d) Liens of Security Instrument Otherwise Unaffected. No Partial Release granted by
Lender shall, in any way, impair or affect the lien or priority of the Security Instrument relating
to the portion of the Property not included in the Partial Release (or any prior Partial Release)
or improve the position of any subordinate lienholder with respect thereto, except to the extent
that the obligations hereunder shall have been reduced by the actual monetary consideration, if
any, received by Lender for such Partial Release. This Security Instrument shall continue as a
Lien and security interest on the portion of the Property not included in a Partial Release (or any
prior Partial Releases).




     10.04. Other Releases of the Mortgaged Property. In addition to the rights granted to
Borrower under Section 10.03 with respect to the Release Properties, Lender may release any other
portions of the Property for such consideration and upon such conditions as Lender may require
without, as to the remainder of the Property, in any way impairing or affecting the Lien or
priority of the Security Instrument or improving the position of any subordinate lienholder with
respect thereto, except to the extent that the obligations hereunder shall have been reduced by the
actual monetary consideration, if any, received by Lender for such release, and Lender may accept
by assignment, pledge or otherwise any other property in place thereof as Lender may require
without being accountable for so doing to any other lienholder. Notwithstanding anything to the
contrary herein, Borrower shall have no right to request and Lender shall have no obligation to
grant its consent to any release pursuant this Section 10.04.



     10.05. OFAC Compliance ; Substantive Consolidation Opinion. Notwithstanding anything
to the contrary contained in this Article 10 (but without any Transfers deemed permitted by solely
this Section 10.05), (a) no transfer (whether or not such transfer shall constitute a Transfer)
shall be made to any Person on the OFAC List and (b) in the event any transfer (whether or not such
transfer shall constitute a Transfer) results in any Person owning in excess of forty-nine percent
(49%) of the ownership interest in Borrower or any Equity Owner (if such Person has not owned at
least forty-nine percent (49%) of the ownership interest in Borrower or any Equity Owner, as
applicable, prior to such transfer), Borrower shall, prior to such transfer, deliver a new
substantive consolidation opinion letter (if one was delivered in connection with the closing of
the Loan) with respect to the new equity owners which is acceptable in all respects to Lender and
to the Rating Agencies if a Securitization has occurred.




54










 






ARTICLE 11




EVENTS OF DEFAULT; REMEDIES




     11.01. Events of Default. The occurrence of any one or more of the following events
shall, at Lender’s option, constitute an “Event of Default” hereunder:



          (a) If any payment of interest is not paid in full within five (5) days after the Payment Due
Date on which such payment is due;




          (b) If any monthly payment required to be made to a Reserve Account is not paid within five
(5) days after the Payment Due Date on which such payment is due;




          (c) If unpaid principal, accrued but unpaid interest and all other amounts outstanding under
the Loan Documents are not paid in full on or before the Maturity Date;




          (d) Intentionally Omitted;




          (e) If the Prepayment Fee is not paid in full when required;




          (f) If any representation or warranty made by Borrower, Equity Owner or Guarantor herein, in
the Guaranty, in the Environmental Indemnity or in any other Loan Document, or in any certificate,
report, financial statement or other instrument or document furnished to Lender in connection
herewith or hereafter, or in connection with any request for consent by Lender made during the term
of the Loan shall have been false or misleading in any material respect as of the date made;




          (g) If Borrower, Equity Owner or Guarantor shall (i) make an assignment for the benefit of
creditors; (ii) generally not be paying its debts as they become due; or (iii) admit in writing its
inability to pay its debts as they become due;




          (h) If (i) Borrower, Equity Owner or Guarantor shall commence any case, proceeding or other
action under any existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, conservatorship or relief of debtors (A) seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent,
or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or for all or any
substantial part of its assets; or (ii) there shall be commenced against Borrower, Equity Owner or
Guarantor any case, proceeding or other action of a nature referred to in clause (i) above by any
party other than Lender which (A) results in the entry of an order for relief or any such
adjudication or appointment, or (B) remains undismissed, undischarged or unbonded for a period of
ninety (90) days; or (iii) there shall be commenced against Borrower, Equity Owner or Guarantor any
case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or any substantial part of its assets which results in the entry of
any order for any such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within ninety (90) days from the entry thereof; or (iv) Borrower, Equity Owner or
Guarantor shall take any action in furtherance of, or indicating its





55









 







consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above;




          (i) If Guarantor repudiates or revokes the Guaranty or Environmental Indemnity;




          (j) If any judgment for monetary damages is entered against Borrower, Equity Owner or
Guarantor which, in Lender’s sole judgment, has a Material Adverse Effect or is not covered to
Lender’s satisfaction by collectible insurance proceeds;




          (k) If Borrower or Equity Owner violates or fails to comply in any material respect with any
provision of Article 7 of this Loan Agreement (captioned: Single Purpose Entity Requirements);




          (l) If Borrower violates or fails to comply with any of the provisions of Section 9.03
(captioned: Insurance), Section 9.06 (captioned: Leases and Rents), or Section 9.13 (captioned:
Existence, Change of Name or Location as a Registered Organization);




          (m) If a Transfer (other than a Permitted Transfer) occurs without Lender’s prior written
consent or in violation of the terms of Lender’s consent;




          (n) If Borrower abandons or ceases work on any Capital Improvement or Replacement for a period
of more than twenty (20) days, unless such cessation results from causes beyond the reasonable
control of Borrower and Borrower is diligently pursuing reinstitution of such work or such
cessation occurs in the ordinary course of business and will not have a Material Adverse Effect;




          (o) If a Lien (other than a Permitted Encumbrance or a Lien granted to Lender) is filed
against the Property, unless such Lien is promptly contested in good faith by Borrower as permitted
in accordance with Section 9.02 (b);




          (p) If a Data Delivery Failure occurs as described in Section 9.11(d);




          (q) If any of the material assumptions contained in the substantive nonconsolidation opinion
delivered to Lender in connection with the Loan, or in any update thereof or in any additional
substantive nonconsolidation opinion delivered subsequent to the closing of the Loan, is or shall
become untrue in any material respect;




          (r) If (i) any Rate Cap or Rate Swap Agreement is terminated for any reason by Borrower or the
Rate Cap Provider or Rate Swap Provider, or (ii) the Rate Cap Provider or Rate Swap Provider
defaults in the performance of its monetary obligations under the Rate Cap or Rate Swap or (iii)
the rating of the Rate Cap Provider or Rate Swap Provider is subject to any downgrade, withdrawal
or qualification by a Rating Agency, and Borrower does not within ten (10) days (A) replace such
Rate Cap or Rate Swap Agreement with a replacement Rate Cap or Rate Swap Agreement which satisfies
all of the requirements of Section 2.07 of this Loan Agreement, and is otherwise in the same
notional amount and Strike Rate as the Rate Cap or Rate Swap Agreement it is replacing and (b)
deliver to Lender, in form and substance reasonably satisfactory to Lender (x) an assignment of
such Rate Cap or Rate Swap Agreement from the





56









 







replacement Rate Cap Provider or Rate Swap Provider, (y) an acknowledgment and consent from
such replacement Rate Cap Provider or Rate Swap Provider in substantially the same form as the Rate
Cap Provider Consent or Rate Cap Provider Consent delivered to Lender as of the Closing Date and
(z) any other opinions or documents required pursuant to Section 2.07 of this Loan Agreement;




          (s) If there is an event of default under the Ground Lease that continues beyond any
applicable grace period or if a Ground Lease is amended, modified or terminated without Lender’s
prior written consent; or




          (t) Except for the specific defaults set forth in this Section 11.01, if Borrower fails to
perform fully and timely any obligation hereunder or under any other Loan Document, or any other
default occurs hereunder or under any other Loan Document, in either case, which is not cured (i)
in the case of any failure or default which can be cured by the payment of a sum of money, within
five (5) days after written notice from Lender to Borrower, or (ii) in the case of any other
failure or default, within thirty (30) days after written notice from Lender to Borrower; provided
that if a failure or default under clause (ii) cannot reasonably be cured within such thirty (30)
day period and Borrower has responsibly commenced to cure such failure or default promptly upon
notice thereof from Lender and thereafter diligently proceeds to cure same, such thirty (30) day
period shall be extended for so long as necessary to permit Borrower, in the exercise of due
diligence, to cure such failure or default, but in no event shall the entire cure period be more
than sixty (60) days.




     Notwithstanding the foregoing, a Guarantor’s actions in subsections (f), (g), (h), (i) and (s)
shall not result in an Event of Default hereunder, if (i) Borrower provides a replacement Guarantor
within ninety (90) days of the occurrence of any event described in such subsections who satisfies
Lender’s requirements as to creditworthiness, net worth and liquidity substantially similar to
those imposed by Lender on the existing Guarantor.



     11.02. Remedies. If an Event of Default occurs, Lender may, at its option, and
without prior notice or demand, do and hereby is authorized and empowered by Borrower so to do, any
or all of the following:



          (a) Acceleration. Lender may declare the entire unpaid principal balance of the Loan
to be immediately due and payable.




          (b) Recovery of Unpaid Sums. Lender may, from time to time, take legal action to
recover any sums as the same become due, without regard to whether or not the Loan shall be
accelerated and without prejudice to Lender’s right thereafter to accelerate the Loan or exercise
any other remedy, if such sums remain uncollected.




          (c) Foreclosure. Lender may institute proceedings, judicial or otherwise, for the
complete or partial foreclosure of the Security Instrument or the complete or partial sale of the
Property under power of sale or under any applicable provision of law. In connection with any such
proceeding, Lender may sell the Property as an entirety or in parcels or units and at such times
and place (at one or more sales) and upon such terms as it may deem expedient unless prohibited by
law from so acting.




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          (d) Receiver. Lender may apply for the appointment of a receiver, trustee, liquidator
or conservator of the Property, without regard for the adequacy of the security for the Debt or a
showing of insolvency, fraud or mismanagement on the part of Borrower. Any receiver or other party
so appointed has all powers permitted by law which may be necessary or usual in such cases for the
protection, possession, control, management and operation of the Property. Borrower hereby
consents, to the extent permitted under applicable law, to the appointment of a receiver or trustee
of the Property upon Lender’s request if an Event of Default has occurred. At Lender’s option,
such receiver or trustee shall serve without any requirement of posting a bond.




          (e) Recovery of Possession. Lender may enter into or upon the Property, either
personally or by its agents, and dispossess and exclude Borrower and its agents and servants
therefrom (without liability for trespass, damages or otherwise), and take possession of all books,
records and accounts relating to the Property, and Borrower agrees to surrender possession of the
Property and all Personal Property, including without limitation, all documents, books, records and
accounts relating to the Property, to Lender upon demand. As a mortgagee-in-possession of the
Property, Lender shall have all rights and remedies permitted by law or in equity to a
mortgagee-in-possession, including, without limitation, the right to charge Borrower the fair and
reasonable rental value for Borrower’s use and occupation of any part of the Property that may be
occupied or used by Borrower and the right to exercise all rights and powers of Borrower with
respect to the Property, whether in the name of Borrower or otherwise (including, without
limitation, the right to make, cancel, enforce or modify Leases, obtain and evict tenants, and
demand, sue for, collect and receive all Rents of the Property).




          (f) UCC Remedies. Lender may exercise with respect to the Property, each right, power
or remedy granted to a secured party under the UCC, including, without limitation, (i) the right to
take possession of the Property and to take such other measures as Lender deems necessary for the
care, protection and preservation of the Property, and (ii) the right to require that Borrower, at
its expense, assemble the Property and make it available to Lender at a convenient place acceptable
to Lender. Any notice of sale, disposition or other intended action by Lender with respect to the
Property sent to Borrower in accordance with the provisions hereof at least ten (10) days prior to
such action, shall constitute reasonable notice to Borrower. Lender shall not have any obligation
to clean-up or otherwise prepare the Property for sale.




          (g) Apply Funds in Reserve Accounts. Lender may apply any funds then deposited in any
or all of the Reserve Accounts and or otherwise held in escrow or reserve by Lender under the Loan
Documents (including without limitation Restoration Proceeds) as a credit on to Loan, in such
priority and proportion as Lender deems appropriate.




          (h) Insurance Policies. Lender may surrender any or all insurance policies maintained
as required by this Loan Agreement, collect the unearned Insurance Premiums and apply such sums as
a credit on the Loan, in such priority and proportion as Lender deems appropriate. Borrower hereby
appoints Lender its attorney-in-fact with full power of substitution (and which shall be deemed to
be coupled with an interest and irrevocable until the Loan is paid and the Security Instrument is
discharged of record, with Borrower hereby ratifying all that its said attorney shall do by virtue
thereof) to surrender such insurance policies and collect such Insurance Premiums.




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          (i) Application of Letter of Credit. Lender may draw on the Letter of Credit, without
prior notice to Borrower, and apply such amounts as a credit on the Loan, in such priority and
proportion as Lender deems appropriate.




          (j) Protection of Lender’s Security and Right to Cure. Lender may, without releasing
Borrower from any obligation hereunder or waiving the Event of Default, perform the obligation
which Borrower failed to perform in such manner and to such extent as Lender deems necessary to
protect and preserve the Property and Lender’s interest therein, including without limitation (i)
appearing in, defending or bringing any action or proceeding with respect to the Property, in
Borrower’s name or otherwise; (ii) making repairs to the Property or completing improvements or
repairs in progress; (iii) hiring and paying legal counsel, accountants, inspectors or consultants;
and (iv) paying amounts which Borrower failed to pay. Amounts disbursed by Lender shall be added
to the Loan, shall be immediately due and payable, and shall bear interest at the Default Rate from
the date of disbursement until paid in full.




          (k) Violation of Laws. If the Property is not, in any material respect, in compliance
with all Requirements of Laws, Lender may impose additional requirements upon Borrower in
connection with such Event of Default including, without limitation, monetary reserves or financial
equivalents.




          (l) Purchase of Rate Cap by Lender. If the Loan has been accelerated following an
Event of Default and the Rate Cap obtained by Borrower expires prior to Lender’s receipt of full
payment of the Loan or completion of a foreclosure action (or acceptance of a deed-in-lieu of
foreclosure), Lender may purchase, at Borrower’s expense, a Rate Cap upon such terms as Lender
deems necessary to guard against fluctuations of the interest rate of the Loan until the Loan is
paid in full or a foreclosure action (or acceptance of a deed-in-lieu of foreclosure) is completed.




     11.03. Cumulative Remedies; No Waiver; Other Security. Lender’s remedies under this
Loan Agreement are cumulative (whether set forth in this Article 11 or in any other section of this
Loan Agreement) with those in the other Loan Documents and otherwise permitted by law or in equity
and, to the extent permitted by applicable law, may be exercised independently, concurrently or
successively in Lender’s sole discretion and as often as occasion _herefore shall arise. Lender’s
delay or failure to accelerate the Loan or exercise any other remedy upon the occurrence of an
Event of Default shall not be deemed a waiver of such right as remedy. No partial exercise by
Lender of any right or remedy will preclude further exercise thereof. Notice or demand given to
Borrower in any instance will not entitle Borrower to notice or demand in similar or other
circumstances (except where notice is expressly required by this Loan Agreement to be given) nor
constitute Lender’s waiver of its right to take any future action in any circumstance without
notice or demand. Lender may release security for the Loan, may release any party liable _herefore,
may grant extensions, renewals or forbearances with respect thereto, may accept a partial or past
due payment or grant other indulgences, or may apply any other security held by it to payment of
the Loan, in each case without prejudice to its rights under the Loan Documents and without such
action being deemed an accord and satisfaction or a reinstatement of the Loan. Lender will not be
deemed as a consequence of its delay or failure to act, or any forbearance granted, to have waived
or be estopped from exercising any of its rights or remedies.



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     11.04. Enforcement Costs. Borrower shall pay, on written demand by Lender all costs
incurred by Lender in (a) collecting any amount payable under the Loan Documents, or (b) enforcing
its rights under the Loan Documents, in each case whether or not legal proceedings are commenced or
whether legal action is pursued to final judgment. Such fees and expenses include, without
limitation, reasonable fees for attorneys, paralegals, law clerks and other hired professionals, a
reasonable assessment of the cost of services performed by Lender’s default management staff, court
fees, costs incurred in connection with pre-trial, trial and appellate level proceedings, including
discovery, and costs incurred in post-judgment collection efforts or in any bankruptcy proceeding.
Amounts incurred by Lender shall be added to principal, shall be immediately due and payable, shall
bear interest at the Default Rate from the date of disbursement until paid in full, if not paid in
full within five (5) days after Lender’s written demand for payment, and such amounts shall be
secured by the Security Instrument and other collateral given to secure the Loan.



     11.05. Application of Proceeds. The proceeds from disposition of the Property shall
be applied by Lender as a credit to the Loan and to recovery or reimbursement of the costs of
enforcement (contemplated by Section 11.04 above) in such priority and proportion as Lender
determines appropriate.



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



          (a) Borrower acknowledges that Lender has made the Loan to Borrower upon the security of its
collective interest in the Property and in reliance upon the aggregate of the Property taken
together being of greater value as collateral security than the sum of each Individual Property
taken separately. Borrower agrees that the Security Instruments are and will be
cross-collateralized and cross-defaulted with each other so that (i) an Event of Default under any
of the Security Instruments shall constitute an Event of Default under each of the other Security
Instrument which secure the Note; (ii) an Event of Default under the Note or this Agreement shall
constitute an Event of Default under each Security Instrument; (iii) each Security Instrument shall
constitute security for the Note as if a single blanket lien were placed on all of the Properties
as security for the Note; and (iv) such cross-collateralization shall in no event be deemed to
constitute a fraudulent conveyance.




          (b) To the fullest extent permitted by law, Borrower, for itself and its successors and
assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s partners and
others with interests in Borrower, and of the Property, or to a sale in inverse order of alienation
in the event of foreclosure of all or any of the Security Instruments, and agrees not to assert any
right under any laws pertaining to the marshalling of assets, the sale in inverse order of
alienation, homestead exemption, the administration of estates of decedents, or any other matters
whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of
the Property for the collection of the Debt without any prior or different resort for collection or
of the right of Lender to the payment of the Debt out of the net proceeds of the Property in
preference to every other claimant whatsoever. In addition, to the extent permitted by applicable
law. Borrower, for itself and its successors and assigns, waives in the event of foreclosure of
any or all of the Security Instruments, any equitable right otherwise available to Borrower which
would require the separate sale of the Property or require Lender to exhaust its remedies against
any Individual Property or any combination of the Property before proceeding against any other





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Credit Agreement

Macquarie Infrastructure Company Inc.





Individual Property or combination of Property; and further in the event of such foreclosure
Borrower does hereby expressly consents to and authorizes, at the option of Lender, the foreclosure
and sale either separately or together of any combination of the Property.




ARTICLE 12




NONRECOURSE
— LIMITATIONS ON PERSONAL LIABILITY




     12.01. Nonrecourse Obligation. Except as otherwise provided in this Article 12, in
Section 15.05 or as expressly stated in any of the other Loan Documents, Lender shall enforce the
liability of Borrower to perform and observe the obligations contained in this Loan Agreement and
in each other Loan Document only against the Property and other collateral given by Borrower as
security for payment of the Loan and performance of Borrower’s obligations under the Loan Documents
and not against Borrower or any of Borrower’s principals, directors, officers or employees.
Without limiting the foregoing, this Article 12 is not applicable to the Environmental Indemnity or
to any Guaranty executed in connection herewith.



     12.02. Full Personal Liability. Section 12.01 above shall BECOME NULL AND VOID and
the Loan FULLY RECOURSE to Borrower and Guarantor if: (a) the Property or any part thereof becomes
an asset in a voluntary bankruptcy or other voluntary insolvency proceeding; (b) an involuntary
bankruptcy or other involuntary insolvency proceeding is commenced against Borrower or any Equity
Owner (by a party other than Lender) but only if Borrower or such Equity Owner has failed to use
commercially reasonable efforts to cause such proceeding to be dismissed or has consented to such
proceeding; (c) if Borrower, any Equity Owner, Guarantor or any Affiliate or agent of Borrower, any
Equity Owner or any Guarantor has acted in concert with, colluded or conspired with any party to
cause the filing of any involuntary bankruptcy or other involuntary insolvency proceeding; or (d)
Borrower fails to comply with the financial reporting and budget approval covenants of Section
9.11.



     12.03. Personal Liability for Certain Losses. Section 12.01 above SHALL NOT APPLY and
Borrower shall be PERSONALLY LIABLE for all losses, claims, expenses or other liabilities incurred
by Lender arising out of, or attributable to, any of the following:



          (a) Fraud or intentional misrepresentation or failure to disclose a material fact by Borrower
or any other agent or representative of Borrower in connection with (i) the application for the
Loan or the execution and delivery of the Loan Documents or making of the Loan, (ii) any financial
statement or any other material certificate, report or document required to be furnished by
Borrower to Lender herewith or hereafter, or (iii) any request for Lender’s consent made during the
term of the Loan;




          (b) A violation of any provision of Article 10 (captioned: No Transfers or Encumbrances; Due
On Sale);




          (c) Any material breach by Borrower or the Equity Owner of Article 7 (captioned; Single
Purpose Entity Requirements).




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          (d) Failure by Borrower Equity Owner or the Equity Owner to comply with any of the provisions
of Section 9.13 (captioned: Existence, Change of Name or Location as a Registered Organization) of
the Loan Agreement;




          (e) Misapplication or misappropriation of (i) insurance proceeds or condemnation awards
payable to Lender in accordance with the Loan Agreement; (ii) Rent or other Operating Income
received by Borrower, (iii) Rent paid in advance by tenants under the Leases; (iv) tenant security
deposits or other refundable deposits held by or on behalf of Borrower in connection with Leases;
or (v) collateral, including but not limited to (x) removal of all or any portion of the Personal
Property in violation of the Loan Documents and (y) fees or commissions paid by Borrower, after the
occurrence and during the continuance of an Event of Default, to any Guarantor, any Affiliate, or
any principal of Borrower, any Guarantor or Affiliate, in violation of the Loan Documents;




          (f) Damage to or loss of all or any part of the Property as a result of intentional,
affirmative waste by Borrower, its agents or the affiliates of Borrower or its agents;




          (g) Criminal acts or gross negligence of Borrower, any principal of Borrower, or any Affiliate
resulting in the seizure, forfeiture or loss of all or any part of the Property;




          (h) Failure by Borrower to purchase and maintain a Rate Cap or Interest Rate Swap in
accordance with the terms of this Loan Agreement;




          (i) All amounts contemplated under Section 11.04; and any real estate or other transfer tax
incurred to transfer title to the Property in connection with any foreclosure, deed in lieu of
foreclosure or non-judicial sale of the Property following the occurrence of an Event of Default




          (j) All amounts expended by Lender to protect its interest in the Property or other
collateral;




          (k) All amounts expended by Lender for any real estate or other transfer tax incurred to
transfer title to the Property in connection with any foreclosure, deed in lieu of foreclosure or
non-judicial sale of the Property following the occurrence of an Event of Default; and




          (l) any liability arising under the Environmental Indemnity.




     12.04. No Impairment. Nothing contained in this Article 12 shall impair, release or
otherwise adversely affect: (a) any lien, assignment or security interest created by the Loan
Documents; (b) any indemnity, personal guaranty, master lease or similar instrument now or
hereafter made in connection with the Loan (including, without limitation, the Environmental
Indemnity and Guaranty); (c) Lender’s right to have a receiver or trustee appointed for the
Property; (d) Lender’s right to name Borrower as a defendant in any foreclosure action or judicial
sale under the Security Instrument or other Loan Documents or in any action for specific
performance or otherwise to enable Lender to enforce obligations under the Loan Documents or to
realize upon Lender’s interest in any collateral given to Lender as security for the Loan; or (e)
Lender’s right to a judgment on the Note against Borrower if necessary (i) to enforce any



62









 




guaranty or indemnity provided in connection with the Note, (ii) preserve or enforce its
rights or remedies against any Individual Property or (iii) or to obtain any insurance proceeds or
condemnation awards to which Lender would otherwise be entitled under this Loan Agreement;
provided, however, that any judgment obtained against Borrower shall, except to the extent
otherwise expressly provided in this Article 12, be enforceable against Borrower only to the extent
of Borrower’s interest in the Property and other collateral securing payment of the Loan and
performance of Borrower’s obligations under the Loan Documents.




     12.05. No Waiver of Certain Rights. Nothing contained in this Article 12 shall be
deemed a waiver of any right which Lender may have under the Bankruptcy Code or applicable law to
protect and pursue its rights under the Loan Documents including, without limitation, its rights
under Sections 506(a) or any other provision of the Bankruptcy Code to file a claim for the full
amount of the Loan or to require that the collateral continues to secure all of the Obligations of
Borrower to Lender under Loan Documents.



ARTICLE 13




INDEMNIFICATION




     13.01. Indemnification Against Claims. Borrower shall indemnify, defend, release and
hold harmless Lender and each of the other Indemnified Parties from and against any and all Losses
(other than, with respect to any Individual Property, those Losses arising solely from a state of
facts that first came into existence after the date that Lender acquired title to such Individual
Property by foreclosure or deed in lieu of foreclosure) directly or indirectly arising out of, or
in any way relating to, or as a result of (a) accident, injury to or death of Persons, or loss of,
or damage to, property occurring in, on or with respect to the Property or on the adjoining
sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways or otherwise arising
with respect to the use of the Property; (b) failure of the Property to be in compliance with any
Requirements of Law; (c) breach or default of Borrower’s representations or obligations under
Sections 8.27, 8.28 or 9.16 of this Loan Agreement; (d) any and all claims and demands whatsoever
which may be asserted against Lender by reason of any alleged obligations or undertakings on its
part to perform or discharge the lessor’s agreements contained in any Lease; (e) breach or default
under the ERISA obligations set forth in Sections 8.26 and 9.15 of this Loan Agreement (including,
without limitation, legal fees and costs incurred in the investigations, defense and settlement of
Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and
in obtaining any individual prohibited transaction exemption under ERISA that may be required, in
Lender’s sole discretion); or (f) any claim, litigation, investigation or proceeding commenced or
threatened relating to any of the foregoing, whether or not Indemnified Party is a party thereto;
provided, however, any such indemnity shall not apply to any Indemnified Party to the extent any
such Losses arise from Indemnified Party’s gross negligence or willful misconduct (collectively,
“Indemnified Claims”).



     13.02. Duty to Defend. If an Indemnified Party claims indemnification under this Loan
Agreement, the Indemnified Party shall promptly notify Borrower of the Indemnified Claim. After
notice by any Indemnified Party, Borrower shall defend such Indemnified Party against such
Indemnified Claim (if requested by any Indemnified Party, in the name of the Indemnified



63









 




Party) by attorneys and other professionals reasonably approved, in writing, by the
Indemnified Party. Notwithstanding the foregoing, any Indemnified Party may, in its sole
discretion and at the expense of Borrower, engage its own attorneys and other professionals to
defend or assist it if such Indemnified Party reasonably determines that the strategic approach of
the defense proposed or conducted by Borrower is unsatisfactory or that a conflict of interest
exists between any of the parties represented by Borrower’s counsel in such action or proceeding.
Within five (5) Business Days of Indemnified Party’s demand, Borrower shall pay or, in the sole
discretion of the Indemnified Party, reimburse, the Indemnified Party for the payment of
Indemnified Party’s costs and expenses (including, without limitation, reasonable attorney fees,
engineer fees, environmental consultant fees, laboratory fees and the fees of other professionals
in connection therewith) in connection with the Indemnified Claim. Payment not made timely shall
bear interest at the Default Rate until paid in full and payment of such amounts shall be secured
by the Security Instrument and other collateral given to secure the Loan.




ARTICLE 14




SUBROGATION; NO USURY VIOLATIONS




     14.01. Subrogation. If the Loan is used to pay, satisfy, discharge, extend or renew
any indebtedness secured by a pre-existing mortgage, deed of trust or other Lien encumbering the
Property, then to the extent of funds so used, Lender shall automatically, and without further
action on its part, be subrogated to all rights, including lien priority, held by the holder of the
indebtedness secured by such prior Lien, whether or not the prior Lien is released, and such former
rights are not waived but rather are continued in full force and effect in favor of Lender and are
merged with the Liens created in favor of Lender as security for payment of the Loan and
performance of the Obligations.



     14.02. No Usury. At no time is Borrower required to pay interest on the Loan or on
any other payment due hereunder or under any of the other Loan Documents (or to make any other
payment deemed by law or by a court of competent jurisdiction to be interest) at a rate which would
subject Lender either to civil or criminal liability as a result of being in excess of the maximum
interest rate which Borrower is permitted by applicable law to pay. If interest (or such other
amount deemed to be interest) paid or payable by Borrower is deemed to exceed such maximum rate,
then the amount to be paid immediately shall be reduced to such maximum rate and thereafter
computed at such maximum rate. All previous payments in excess of such maximum rate shall be
deemed to have been payments of principal (in inverse order of maturity) and not on account of
interest due hereunder. For purposes of determining whether any applicable usury law has been
violated, all payments deemed by law or a court of competent jurisdiction to be interest shall, to
the extent permitted by applicable law, be deemed to be amortized, prorated, allocated and spread
over the full term of the Loan in such manner so that interest is computed at a rate throughout the
full term of the Loan which does not exceed the maximum lawful rate of interest.



64









 





ARTICLE 15




SALE OR SECURITIZATION OF LOAN




     15.01. Splitting the Note. Lender has the right from time to time to sever the Note
into one or more separate promissory notes in such denominations as Lender determines in its sole
discretion (including the creation of a mezzanine loan secured by a collateral assignment of the
Equity Interests in Borrower and Equity Owner), which promissory notes may be included in separate
sales or securitizations undertaken by Lender. In conjunction with any such action, Lender may
redefine the interest rate; provided, however, that if Lender redefines the interest rate, the
weighted average of the interest rates contained in the severed promissory notes taken in the
aggregate shall equal the Applicable Interest Rate. Subject to the foregoing, each severed
promissory note, and the Loan evidenced thereby, shall be upon all of the terms and provisions
contained in this Loan Agreement and the Loan Documents which continue in full force and effect,
except that Lender may allocate specific collateral given for the Loan as security for performance
of specific promissory notes, in each case with or without cross–default provisions. Borrower, at
Borrower’s expense, agrees to cooperate with all reasonable requests of Lender to accomplish the
foregoing, including, without limitation, execution and prompt delivery to Lender of a severance
agreement and such other documents as Lender shall reasonably require. Borrower hereby appoints
Lender its attorney-in-fact with full power of substitution (and which shall be deemed to be
coupled with an interest and irrevocable until the Loan is paid and the Security Instrument is
discharged of record, with Borrower hereby ratifying all that its said attorney shall do by virtue
thereof) to make and execute all documents necessary or desirable to effect the aforesaid
severance; provided, however, Lender shall not make or execute any such documents under
such power until five (5) days after written notice has been given to Borrower by Lender of
Lender’s intent to exercise its rights under such power. Borrower’s failure to deliver any of the
documents requested by Lender hereunder for a period of ten (10) Business Days after such notice by
Lender shall, at Lender’s option, constitute an Event of Default hereunder. Notwithstanding the
foregoing, any costs or expenses incurred by Lender in connection with Borrower’s cooperation with
any restructuring of the Loan shall be borne solely by Lender, to the extent that such costs exceed
$5,000.



     15.02. Lender’s Rights to Sell or Securitize. Borrower acknowledges that Lender, and
each successor to Lender’s interest, may (without prior notice to Borrower or Borrower’s prior
consent), sell or grant participations in the Loan (or any part thereof), sell or subcontract the
servicing rights related to the Loan, Securitize the Loan or include the Loan as part of a
Securitization and, in connection therewith, assign Lender’s rights hereunder to a securitization
trustee. Borrower, at its expense, agrees to cooperate with all reasonable requests of Lender in
connection with any of the foregoing including, without limitation, (i) providing additional
information regarding the Property, Borrower, or any of its Affiliates (such information to include
additional appraisals, environmental reports, engineering reports and similar due diligence
materials and updates, and verifications and consents with respect to such materials that were
delivered at closing), (ii) delivering additional landlord and/or tenant estoppel letters,
subordination agreements or similar agreements (subject, in all instances, to the terms and
conditions of the applicable leases), (iii) participating in meetings and presentations (including
the senior management of Borrower) to the Rating Agencies and prospective investors (in each



65









 




case as required by the Rating Agencies or prospective investors), (iv) executing any
financing statements or other documents deemed necessary by Lender or its transferee to create,
perfect or preserve the rights and interest to be acquired by such transferee, (v) provide any
updated financial information with appropriate verification through auditors letters, (vi) deliver
revised organizational documents and counsel opinions satisfactory to the Rating Agencies, (viii)
execute amendments to the Loan Documents, and (ix) review information contained in a preliminary or
final private placement memorandum, prospectus, prospectus supplements or other disclosure
document, providing a mortgagor estoppel certificate and such other information about Borrower,
Equity Owner, any Guarantor or the Property as Lender may require for Lender’s offering materials
provided that no such modification, revision, additional documents, or other action in connection
with such cooperation shall materially increase the obligations or materially decrease the rights
of Borrower pursuant to the Loan Documents. At the request of Lender, Borrower shall make such
representations and warranties as of the date of the securitization as are customary in
securitization transactions involving properties of the same nature as the subject properties.
Notwithstanding the foregoing, Borrower’s obligations to obtain landlord estoppel letters with
respect to the Ground Lease shall be limited as follows: Borrower shall not be required to obtain
estoppels for those Individual Properties listed on Schedule 15.02.1, shall be required
only to use commercially reasonable efforts to obtain estoppels for those Individual Properties
listed on Schedule 15.02.2, and for all other Individual Properties shall obtain estoppels
representing at least 80% of the Loan amount allocated to all such Individual Properties.
Notwithstanding the foregoing, any costs or expenses incurred by Lender in connection with
Borrower’s cooperation with any restructuring of the Loan shall be borne solely by Lender, to the
extent that such costs exceed $5,000.




     15.03. Dissemination of Information. Borrower acknowledges that Lender may provide to
third parties with an existing or prospective interest in the servicing, enforcement, evaluation,
performance, ownership, purchase, participation or Securitization of the Loan, including, without
limitation, any Rating Agency and any entity maintaining databases on the underwriting and
performance of commercial mortgage loans, any and all information which Lender now has or may
hereafter acquire relating to the Loan, the Property, Borrower, Equity Owner or any Guarantor, as
Lender determines necessary or desirable and that such information may be included in disclosure
documents in connection with a Securitization or syndication of participation interests, including,
without limitation, a prospectus, prospectus supplement, offering memorandum, private placement
memorandum or similar document (each, a “Disclosure Document”) and also may be included in
any filing with the Securities and Exchange Commission pursuant to the Securities Act or the
Securities Exchange Act. To the fullest extent permitted under applicable law, Borrower
irrevocably waives all rights, if any, to prohibit such disclosure, including, without limitation,
any right of privacy.



     15.04. Reserve Accounts. If the Loan is made a part of a Securitization, Borrower
acknowledges that all funds held by Lender in the Reserve Accounts in accordance with this Loan
Agreement or the other Loan Documents shall be deposited in “eligible accounts” at “eligible
institutions” or invested in “permitted investments” as then defined and required by the Rating
Agencies, and this Loan Agreement will automatically be amended to so provide.



     15.05. Securitization Indemnification. Each of Borrower and Guarantor agrees to
provide in connection with each Disclosure Document provided by Lender to such parties, an



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indemnification certificate: (a) certifying that Borrower and such Guarantor have reviewed
such Disclosure Document, including, without limitation, the sections entitled “Special
Considerations,” and/or “Risk Factors,” and “Certain Legal Aspects of the Mortgage Loan,” or
similar sections, and all sections relating to Borrower, Equity Owner, Guarantors, Property
Manager, if any, their respective Affiliates, the Loan, the Loan Documents and the Property, and
any risks or special considerations relating thereto, and that, to the best of such indemnitor’s
knowledge, such sections (and any other sections reasonably requested) do not contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements made, in the light of the circumstances under which they were made, not misleading; (b)
indemnifying Lender (and for purposes of this Section 15.05, Lender shall include its officers and
directors) and the Affiliate of Lender that (i) has filed the registration statement, if any,
relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a
similar capacity with respect to the Securitization (any Person described in (i) or (ii), an
“Issuer Person”), and each director and officer of any Issuer Person, and each Person or
entity who controls any Issuer Person within the meaning of Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act (collectively, “Issuer Group”), and each Person
which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity
with respect to the Securitization, each of its directors and officers and each Person who controls
any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act which is acting as an underwriter, manager, placement agent, initial
purchaser or similar capacity with respect to the Securitization, each of its directors and
officers and each Person who controls any such Person within the meaning of Section 15 of the
Securities Act and Section 20 of the Securities Exchange Act (collectively, “Underwriter
Group”) for any Losses to which Lender, the Issuer Group or the Underwriter Group may become
subject insofar as the Losses arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in such section or arise out of are based upon the
omission or alleged omission to state therein a material fact required to be stated in such
sections necessary in order to make the statements in such sections or in light of the
circumstances under which they were made, not misleading (collectively, “Securities
Liabilities”); and (c) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group
for any legal or other expenses reasonably incurred by Lender, the Issuer Group and the Underwriter
Group in investigating or defending the Securities Liabilities; provided, however, that indemnitor
will be liable under clauses (b) or (c) above only if and to the extent that (a) such misstatement
or omission is material and (b) Borrower, each Guarantor and their respective Affiliates knew, or
reasonably should have known after due inquiry, at the time that Borrower, each Guarantor and their
respective Affiliates approved the Disclosure Document, that the Disclosure Document contained a
material misstatement or omission.. This indemnity is in addition to any liability which Borrower
may otherwise have and shall be effective whether or not an indemnification certificate described
in (a) above is provided and shall be applicable based on information previously provided by or on
behalf of Borrower or a Guarantor if the indemnification certificate is not provided.




     15.06. Additional Financial Information for Large Loans.



          (a) If required by law in connection with a Securitization, Borrower, at Borrower’s expense,
shall provide Lender with all financial statements and other financial, statistical or operating
information, to the extent required pursuant to Regulation S-X of the Securities Act or any other
Requirements of Law in connection with any Disclosure Document





67









 







or Securities Filing. All financial statements provided by Borrower pursuant to this Section
shall be prepared in accordance with GAAP and shall meet the requirements of Regulation S-X and
other applicable Requirements of Law. All financial statements reporting for a full operating year
(i) shall be audited by independent accountants in accordance with generally accepted auditing
standards, Regulation S-X and all other applicable Requirements of Law, (ii) shall be accompanied
by the manually executed report of the independent accountants thereon, which report shall meet the
requirements of Regulation S-X and all other applicable Requirements of Law, and (iii) shall be
accompanied by a manually executed written consent of the independent accountants, acceptable to
Lender, that authorizes the inclusion of such financial statements in any Disclosure Document or
Securities Filing and permits the use of the name of such independent accountants and reference to
such independent accountants as “experts” in any Disclosure Document and Securities Filing, all of
which shall be provided, at Borrower’s expense, at the same time as the related financial
statements are required to be provided. All other financial statements shall be certified by the
chief financial officer of Borrower, which certification shall state that such financial statements
meet the requirements set forth in the first sentence of this paragraph.




          (b) If requested by Lender, Borrower shall provide Lender, promptly upon request, with any
other or additional financial statements or financial, statistical or operating information as
Lender determines to be required pursuant to Regulation S-X or other legal requirements in
connection with any Disclosure Document or any filing under or pursuant to the Securities Exchange
Act in connection with or relating to a Securitization.




          (c) If Lender determines in connection with a Securitization, that the financial statements
required in order to comply with Regulation S-X or other legal requirements are other than as
provided herein, then notwithstanding the provisions of this Section, Lender may request, and
Borrower shall promptly provide, such combination of Acquired Property Statement and/or Large Loan
Statements or such other financial statements as Lender determines to be necessary or appropriate
for such compliance




ARTICLE 16




BORROW FURTHER ACTS AND ASSURANCES PAYMENT OF SECURITY RECORDING CHARGES




     16.01. Further Acts. Borrower, at Borrower’s expense, agrees to take such further
actions and execute such further documents as Lender reasonably may request to carry out the intent
of the Loan Documents or to establish and protect the rights and remedies created or intended to be
created in favor of Lender under the Loan Documents or to protect the value of the Property and
Lender’s security interest or liens therein. Borrower agrees to pay all filing, registration or
recording fees or taxes, and all expenses incident to the preparation, execution, acknowledgement,
or filing/recording of the Security Instrument, the Assignment of Leases and Rents, financing
statements or any such instrument of further assurance, except where prohibited by law so to do.



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     16.02. Replacement Documents. Upon receipt of an affidavit from an officer of Lender
as to the loss, theft, destruction or mutilation of the Note or any other Loan Document which is
not of public record, and, in the case of any such mutilation, upon surrender and cancellation of
such document, Borrower will issue a replacement original in lieu thereof in the same original
principal amount and otherwise on the same terms and conditions as the original.



     16.03. Borrower Estoppel Certificates.



          (a) Borrower Information. Borrower, within ten (10) days of Lender’s written request,
()but in any event not more than four (4) times annually, except following an Event of Default, in
which case such limitation shall not apply), shall furnish to Lender or Lender’s designee a
statement, duly acknowledged and certified by a Responsible Officer, setting forth: (i) the Loan
Amount and the amount of principal advanced as of the certificate date; (ii) the unpaid principal
amount of the Loan; (iii) the calculation of the rate of interest accruing on the Loan, including
the then Applicable Interest Rate; (iv) the Payment Due Date, the Maturity Date, any unexercised
rights to extend the Maturity Date and any exercised extension of the Maturity Date, if any; (v)
the date installments of interest and/or principal were last paid; (vi) that, except as provided in
such statement, no defaults or events exists which would be an Event of Default with the giving of
any applicable notice or the expiration of any applicable grace or cure period or both; (vii) that
the Loan Documents are valid, legal and binding obligations and have not been modified or, if
modified, giving the particulars of such modification; (viii) whether any offsets or defenses exist
against Borrower’s obligation to pay the Loan and perform the Obligations and, if any are alleged
to exist, a detailed description thereof; (ix) that all Leases are in full force and effect, and
for Leases other than residential Leases, have not been modified or if modified, setting forth all
modifications; (x) if requested, a current Rent Roll for the Property, (xi) the date to which Rents
under the Leases have been paid; (xii) whether or not, to the best knowledge of Borrower, any of
the tenants under the Leases are in default under the Leases, and, if any of the tenants are in
default, setting forth the specific nature of all such defaults; and (xiii) such other matters
reasonably requested by Lender and reasonably related to the Leases or the Property.




          (b) Tenant Estoppels. Subject to the terms and conditions of the applicable leases,
Borrower shall deliver to Lender, promptly upon Lender’s written request (but in any event no later
than fifteen (15) Business Days following Lender’s request, but in any event not more often than
twice annually, except following an Event of Default, in which case such limitation shall not
apply), duly executed estoppel certificates from tenants identified by Lender which are paying
$50,000 or more annually to Borrower under their respective leases, attesting to such facts
regarding a tenant’s non-residential Lease as Lender may require, including, without limitation:
(i) that the Lease is in full force and effect with no defaults thereunder on the part of any
party, and no event exists that would be an event of default thereunder with giving of any
applicable notice or the expiration of any applicable grace or cure period or both; (ii), that none
of the Rents have been paid more than one month in advance, except as a security deposit; and (iii)
that the tenant claims no defense or offset against the full and timely performance of its
obligations under the Lease.




          (c) Lender Statement of Loan Information. After written request by Borrower not more
than twice annually, Lender shall furnish Borrower a statement setting forth: (i) the original Loan
Amount and the amount of principal advanced by Lender as of the certificate date;




69









 







(ii) the unpaid principal amount of the Loan; (iii) the rate of interest accruing on the Loan,
including the then Applicable Interest Rate; and (iv) the balance of amounts held in the Reserve
Accounts, if any.




     16.04. Recording Costs. Except as otherwise required by law, Borrower will pay all
transfer taxes, filing, registration, recording or similar fees, and all expenses incident to the
preparation, execution, acknowledgment, recording, filing and/or release or discharge of the Note,
the Security Instrument and each of the other Loan Documents, and all modifications, extensions,
consolidations, or restatements of the same, except where prohibited by law so to do.



     16.05. Publicity. Borrower acknowledges and agrees that Lender may release publicity
articles concerning the financing or servicing of the Loan, subject, however, to the terms of any
confidentiality agreement between Borrower and Lender.



ARTICLE 17




LENDER CONSENT




     17.01. No Joint Venture; No Third Party Beneficiaries. Borrower and Lender intend
that the relationships created hereunder and under each of the other Loan Documents are solely
those of borrower and lender. Nothing herein or in any of the other Loan Documents is intended to
create, nor shall it be construed as creating anything but a debtor-creditor relationship between
Borrower and Lender nor shall they be deemed to confer on anyone other than Lender, and its
successors and assigns, any right to insist upon or to enforce the performance or observance of any
of the obligations contained herein or therein.



     17.02. Lender Approval. Wherever pursuant to a Loan Document (a) Lender exercises any
right to approve or disapprove or to grant or withhold consent; (b) any arrangement or term is to
be satisfactory to Lender; (c) a waiver is requested from Lender, or (d) any other decision is to
be made by Lender, all shall be made in Lender’s sole discretion, unless expressly provided
otherwise in such Loan Document. By approving or granting consent, accepting performance from
Borrower, or releasing funds from a Reserve Account, Lender shall not be deemed to have warranted
or affirmed the sufficiency, completeness, legality or effectiveness of the subject matter or of
Borrower’s compliance with Requirements of Laws. Notwithstanding any provision under the Loan
Documents which provide Lender the opportunity to approve or disapprove any action or decision by
Borrower, Lender is not undertaking the performance of any obligation of Borrower under any of the
Loan Documents or any of the other documents and agreements in connection with this transaction
(including, without limitation, the Leases).



     17.03. Performance at Borrower’s Expense. Borrower acknowledges and agrees that in
connection with each request by Borrower to: (a) modify or waive any provision of the Loan
Documents; (b) release or substitute Property; (c) obtain Lender’s approval or consent whenever
required by the Loan Documents including, without limitation, review of a Transfer request, matters
affecting a Major Lease, improvements or alterations to the Property, and easements or other
additions to Permitted Encumbrances; or (d) provide a subordination, non-disturbance and attornment
agreement, Lender reserves the right to collect a review or processing fee from



70









 




Borrower based on a reasonable estimate of the administrative costs which Lender will incur to
connection therewith. Borrower agrees to pay such fee along with all reasonable legal fees and
expenses incurred by Lender and the fees required for a Rating Confirmation or approval from the
trustee if the Loan has been Securitized, as applicable, irrespective of whether the matter is
approved, denied or withdrawn (provided, however, that Lender shall only charge review or
processing fees which Lender typically and customarily charges to similarly situated Borrowers).
Any amounts payable by Borrower hereunder, shall be deemed a part of the Loan, shall be secured by
this Loan Agreement and shall bear interest at the Default Rate if not fully paid within ten (10)
days of written demand for payment.




     17.04. Non-Reliance. Borrower agrees that any diligence or investigation performed by
or on behalf of Lender in underwriting or servicing the Loan (including, without limitation,
information obtained about the Property the Borrower or its equity investors or Affiliates) does
not in any respect limit or excuse any of Borrower’s representations, warranties, covenants or
agreements set forth in this Loan Agreement or any of the other Loan Documents. The fact that
Lender has performed diligence does not affect Lender’s ability or right to rely fully upon the
representations, warranties, covenants and agreements made by Borrower in the Loan Documents or to
pursue any available remedy for a breach thereof. If Lender delivers or has delivered to Borrower
(or to Borrower’s agents, equity investors or representatives) any information obtained or
developed by Lender relating to the Loan, the Property or Borrower, Borrower acknowledges and
agrees that such information has been delivered for informational purposes only and Lender has no
liability of responsibility to Borrower with respect to such information, including, without
limitation, the completeness or accuracy of any such information. No due diligence consultant
engaged by Lender is or shall be deemed an agent of Lender.



ARTICLE 18




MISCELLANEOUS PROVISIONS




     18.01. Notices. All notices and other communications under this Loan Agreement are to
be in writing and addressed to each party as set forth below. Default or demand notices shall be
deemed to have been duly given upon the earlier of: (a) actual receipt; (b) one (1) Business Day
after having been timely deposited for overnight delivery, fee prepaid, with a reputable overnight
courier service, having a reliable tracking system; or (c) three (3) Business Days after having
been deposited in any post office or mail depository regularly maintained by the U.S. Postal
Service and sent by certified mail, postage prepaid, return receipt requested, and in the case of
clause (b) and (c) irrespective of whether delivery is accepted. A new address for notice may be
established by written notice to the other; provided, however, that no change of address will be
effective until written notice thereof actually is received by the party to whom such address
change is sent. Notice to outside counsel or parties other than the named Borrower and Lender, now
or hereafter designated by a party as entitled to notice, are for convenience only and are not
required for notice to a party to be effective in accordance with this section. Notice addresses
are as follows:



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	Address for Lender:

	 	GMAC Commercial Mortgage Corporation
	 

	 	200 Witmer Road
	 

	 	Horsham, PA 19044
	 

	 	Attn.: Servicing Accounting — Manager
	 

	 	Fax: 215-328-3478
	 
	 	 
	 

	 	With required copies to:
	 
	 	 
	 

	 	GMAC Commercial Mortgage Corporation
	 

	 	200 Witmer Road
	 

	 	Horsham, PA 19044
	 

	 	Attn.: PLG Asset Manager
	 

	 	Fax: 215-328-1190
	 
	 	 
	and

	 	GMAC Commercial Mortgage Bank
	 

	 	6955 Union Park Center, Suite 330
	 

	 	Midvale, UT 84047
	 

	 	Attn: President
	 

	 	Fax: 801-567-2681
	 
	 	 
	and

	 	Dechert LLP
	 

	 	Bank of America Corporate Center
	 

	 	100 North Tryon Street
	 

	 	Suite 4000
	 

	 	Charlotte, NC 28202
	 

	 	Attn: Timothy J. Boyce
	 

	 	Fax: 704-339-3101
	 
	 	 
	Address for Borrower:

	 	PCAA SP, LLC
	 

	 	8225 Firestone Boulevard, Suite 502
	 

	 	Downey, CA 90241
	 

	 	Attn.: Gregory Andrews
	 

	 	Fax: 562-287-1334
	 
	 	 
	and

	 	PCAA SP, LLC
	 

	 	125 West 55th Street, 22nd Floor
	 

	 	New York, NY 10019
	 

	 	Attention: General Counsel
	 
	 	 
	and

	 	Dykema Gossett PLLC
	 

	 	400 Renaissance Center
	 

	 	Detroit, MI 48243
	 

	 	Attn: Aleks Miziolek
	 

	 	Fax: 313-568-6832






     18.02. Entire Agreement; Modifications; Time of Essence. This Loan Agreement,
together with the other Loan Documents, contain the entire agreement between Borrower and Lender
relating to the Loan and supersede and replace all prior discussions, representations,



72









 




communications and agreements (oral or written). If the terms of any of the Loan Documents are
in conflict, this Loan Agreement shall control over all of the other Loan Documents unless
otherwise expressly provided in such other Loan Document. No Loan Document shall be modified,
supplemented or terminated, nor any provision thereof waived, except by a written instrument signed
by the party against whom enforcement thereof is sought, and then only to the extent expressly set
forth in such writing. Time is of the essence with respect to all of Borrower’s obligations under
the Loan Documents.




     18.03. Binding Effect; Joint and Several Obligations. This Loan Agreement and each of
the other Loan Documents shall be binding upon and inure to the benefit of Borrower and Lender and
their respective successors and assigns, whether by voluntary action of the parties or by operation
of law. (The foregoing does not modify any conditions regulating Transfers.) If Borrower consists
of more than one party, each shall be jointly and severally liable to perform the obligations of
Borrower under the Loan Documents.



     18.04. Duplicate Originals; Counterparts. This Loan Agreement and each of the other
Loan Documents may be executed in any number of duplicate originals, and each duplicate original
shall be deemed to be an original. This Loan Agreement and each of the other Loan Documents (and
each duplicate original) also may be executed in any number of counterparts, each of which shall be
deemed an original and all of which together constitute a fully executed agreement even though all
signatures do not appear on the same document.



     18.05. Unenforceable Provisions. Any provision of this Loan Agreement or any other
Loan Documents which is determined by a court of competent jurisdiction or government body to be
invalid, unenforceable or illegal shall be ineffective only to the extent of such holding and shall
not affect the validity, enforceability or legality of any other provision, nor shall such
determination apply in any circumstance or to any party not controlled by such determination.



     18.06. Governing Law. This Loan Agreement and each of the other Loan Documents shall
be interpreted and enforced according to the laws of the State of New York (without giving effect
to rules regarding conflict of laws), provided, however, that the creation, perfection and
enforcement of the lien of each Security Instrument and Assignment of Leases and Rents shall
instead be governed by the laws of the state in which the Individual Property encumbered by such
Security Instrument and Assignment of Leases and Rents is located.



     18.07. Consent to Jurisdiction. Borrower hereby consents and submits to the exclusive
jurisdiction and venue of any state or federal court sitting in the county and state of New York
with respect to any legal action or proceeding arising with respect to the Loan Documents and
waives all objections which it may have to such jurisdiction and venue. Nothing herein shall,
however, preclude or prevent Lender from bringing actions against Borrower in any other
jurisdiction as may be necessary to enforce or realize upon the security for the Loan provided in
any of the Loan Documents.



     18.08. WAIVER OF TRIAL BY JURY. BORROWER AND LENDER EACH WAIVE THEIR RESPECTIVE
RIGHT, TO THE FULLEST EXTENT PERMITTED BY LAW, AND AGREE NOT TO ELECT A TRIAL BY JURY WITH RESPECT
TO ANY ISSUE ARISING OUT OF THIS LOAN AGREEMENT, ANY OTHER LOAN



73









 




DOCUMENT, OR THE RELATIONSHIP BETWEEN THE PARTIES AS BORROWER AND LENDER.




     18.09. Good Faith. All decisions, consents and approvals required of Lender under the
Loan Documents, whether exercised in Lender’s sole discretion or in its reasonable discretion,
shall be made in good faith by Lender.



ARTICLE 19




LIST OF DEFINED TERMS




     19.01. Definitions. The following words and phrases shall have the meaning specified
below.



          “Affiliate” of any Person means (a) any other Person which, directly or indirectly, is
in Control of, is Controlled by or is under common Control with, such Person; (b) any other Person
who is a director or officer of (i) such Person, (ii) any subsidiary of such Person, or (iii) any
Person described in clause (a) above; or (c) any corporation, limited liability company or
partnership which has as a director any Person described in clause (b) above.




          “Allocated Loan Amount” means, for each Individual Property, the amount set forth on
Exhibit E hereto.




          “Applicable Interest Rate” has the meaning set forth in Section 2.02(b) of this Loan
Agreement. It is the interest rate from time to time accruing on the Loan.




          “Approved Budget” has the meaning set forth in Section 9.11(a)(v) of this Loan
Agreement.




          “Assignment of Interest Rate Cap” means the Assignment of Interest Rate Cap Agreement
dated as of the Closing Date from Borrower, as assignor, to Lender, as assignee, assigning to
Lender all of Borrower’s rights, title and interest in and to the Rate Cap Agreement.




          “Assignment of Leases and Rents” means the Assignment of Leases and Rents dated as of
the Closing Date from Borrower, as assignor, to Lender, as assignee, assigning to Lender all of
Borrower’s right, title and interest in and to the Leases and the Rents with respect to the
Property.




          “Assignment of Property Management Contract” means an Assignment of Property
Management Contract and Subordination of Management Fees dated as of the Closing Date from
Borrower, as assignor, to Lender, as assignee, and acknowledged by Property Manager or as
applicable, any other Assignment of Property Management Contract executed pursuant to Section 9.14.




          “Bankruptcy Code” means the Bankruptcy Reform Act of 1978 codified as 11 U.S.C. §101
et. seq., and the regulations issued thereunder, both as hereafter modified from time to time.




74









 








          “Borrower” has the meaning set forth in the introductory paragraph of this Loan
Agreement.




          “Business Day” or “business day” means any day other than a Saturday, a
Sunday, or days when Federal Banks located in the State of New York or Commonwealth of Pennsylvania
are closed for a legal holiday or by government directive. When used with respect to the Interest
Rate Adjustment Date, “Business Day” shall mean a day upon which United States dollar deposits may
be dealt in on the London and New York City interbank markets and commercial banks and foreign
exchange markets are open in London and New York City.




          “Capital Improvements/Deferred Maintenance” means the capital improvements to be made
to the Property which are identified on Exhibit C hereto.




          “Cash Flow Available for Debt Service” means, for a specified period, (a) actual
Operating Income normalized for the following twelve (12) month period less (b) actual
Operating Expenses normalized for the following twelve (12) month period. Operating Income and
Operating Expenses will be normalized (i) in accordance with the guidelines delivered to Borrower
prior to the Closing Date, provided that Lender shall have the right, in its sole and absolute
discretion, to amend or discontinue such guidelines from time to time, and (ii) based upon
information available to Lender at the time of such calculation which are expected to effect such
calculation, including but not limited to (x) termination of a Lease or a Parking Lease, (y)
changes in Borrower’s obligations under any Ground Lease or (z) receipt of a current tax bill.




          “Casualty” means the occurrence of damage or destruction to the Property, or any part
thereof, by fire, flood, vandalism, windstorm, hurricane, earthquake, acts of terrorism or any
other casualty.




          “Closing Date” means October 3, 2005.




          “Compliance Certificate” means a compliance certificate substantially in the form of
Exhibit A hereto, signed by a Responsible Officer of Borrower.




          “Condemnation” means the taking by any Governmental Authority of the Property or any
part thereof through eminent domain or otherwise (including, without limitation, any transfer made
in lieu of or in anticipation of the exercise of such taking).




          “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person whether through ownership of voting
securities, beneficial interests, by contract or otherwise. The definition is to be construed to
apply equally to variations of the word “Control” including “Controlled,” “Controlling” or
“Controlled by.”




          “Data Delivery Failure” means, without reference to any cure period under Article 11,
each instance that any of the following occur: (a) failure to deliver any of the reports,
information, statements or other materials required under Section 9.11 after Lender giving of two
written notices, the first written notice to provide Borrower with thirty (30) days to cure,
Borrower’s failure and the second notice to provide Borrower with an additional thirty (30) days to
cure, (b) failure to provide the Compliance Certificate within five (5) Business Days after





75









 







written notice from Lender, or (c) failure to permit Lender or its representatives to inspect
or copy books and records within two (2) Business Days of Lender’s written request.
Notwithstanding anything in this Loan Agreement to the contrary, Borrower’s failure to deliver any
of the reports, information, statements or other materials required under Section 9.11 on a timely
basis shall be excused by, and the respective dates by which Borrower shall be required to provide
such reports, information, statements or other materials shall be extended for the period of any
delay caused by any Force Majeure Event.




          “Data Delivery Failure Fee” means an amount of Five Thousand Dollars ($5,000.00) for
the first failure, Ten Thousand ($10,000.00) for the second failure, Twenty-five Thousand Dollars
($25,000.00) for the third failure and each failure thereafter.




          “Debt” means the aggregate of all principal and interest payments that accrue or are
due and payable in accordance with the Loan Agreement, together with any other amounts due under
the Loan Documents. The terms “Debt” and “Loan” have the same meaning whenever used in the Loan
Documents.




          “Debt Service Coverage Ratio” means, as to a specific period, the ratio of (a) the
Cash Flow Available for Debt Service, to (b) interest due and payable under the Note for that
period.




          “Debt Service Coverage Constant Ratio” means, as to a specific period, the ratio
obtained by dividing (a) the Cash Flow Available for Debt Service, by (b) a debt service payment
calculated using the Loan Constant.




          “Default Rate” has the meaning set forth in Section 2.04(e) of this Loan Agreement.




          “Disbursement Request” means a written request substantially in the form of
Exhibit B from Borrower delivered to Lender, signed by a Responsible Officer of Borrower
and requesting Lender to disburse funds from a Reserve Account. Each Disbursement Request shall
describe in reasonable detail the use of the funds requested by the Disbursement Request and shall
have attached to it, as applicable: (a) the original invoices for all items or materials purchased
or services performed which are to be funded by the Disbursement Request, and (b) copies of all
permits, licenses and approvals, if any, by any Governmental Authority confirming completion of the
Reserve Items. If an original invoice is not available, Borrower shall be required to evidence, to
Lender’s satisfaction, the amounts expended for which reimbursement is requested.




          “Disclosure Documents” has the meaning set forth in Section 15.03 of this Loan
Agreement.




          “Environmental Indemnity” means the Environmental Indemnity Agreement dated as of the
Closing Date from Borrower and the other “Indemnitors” named therein to Lender.




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          “Equity Interests” means (a) partnership interests (whether general or limited) in an
entity which is a partnership; (b) membership interests in an entity which is a limited liability
company; or (c) the shares or stock interests in an entity which is a corporation.




          “Equity Owner” means PCAA Parent, LLC, a Delaware limited liability company.




          “ERISA” means the Employee Retirement Income Security Act of 1974, and the regulations
issued thereunder, all as amended or restated from time to time.




          “Event of Default” means any of the events specified in Section 11.01 of this Loan
Agreement.




          “Extension Term” has the meaning set forth in Section 2.03(d) of this Loan Agreement.




          “First Extended Maturity Date” has the meaning set forth in Section 2.03(d) of this
Loan Agreement.




          “First Extension Term” has the meaning set forth in Section 2.03(d) of this Loan
Agreement.




          “Force Majeure Event” means any act of God, act of war, insurrection, terrorist
activity, governmental restriction or any other cause beyond Borrower’s reasonable control.




          “GAAP” means generally accepted accounting principles in the United States of America
as in effect from time to time.




          “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, and any Person exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to such government.




          “Ground Lease” means that certain Lease dated January 19, 1995 by and between Reynal
Co. Limited Partnership, an Ohio limited partnership, as lessor, and Olympic Management Systems,
Inc., a New York corporation (as the same has been subsequently amended and assigned) or any
subsequent ground lease executed by Borrower which secures the Loan.




          “Guarantor” means PCAA Parent, LLC, a Delaware limited liabilty company, who is
executing the Guaranty as the guarantor, or, pursuant to the terms and conditions of this Loan
Agreement and the Guaranty, a replacement guarantor who satisfies Lender’s requirements as to
creditworthiness, net worth and liquidity substantially similar to those imposed by Lender on the
foregoing named guarantor.




          “Guaranty” means the Guaranty (Exceptions to Nonrecourse Liability) dated as of the
Closing Date from Guarantor to Lender.




          “Improvements” has the meaning set forth in the Security Instrument.




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          “Indemnified Claim” means the basis for the Indemnified Party’s claim for
indemnification under Article 13 hereof.




          “Indemnified Parties” means Lender, together with its successors and assigns, which
shall include, without limitation, any owner or prior owner or holder of the Note, any servicer of
the Loan, any investor, or holder of a full or partial interest in the Loan, any receiver or other
fiduciary appointed in a foreclosure or other proceeding under any Requirements of Law regarding
creditors’ rights, any officers, directors, shareholders, partners, members, employees, agents,
servants, representatives, contractors, subcontractors, Affiliates of any and all of the foregoing,
in all cases whether during the term of the Loan or as part of, or following, a foreclosure of the
Security Instrument.




          “Independent Director/Manager” means an individual who shall not have been at the time
of such individual’s initial appointment, and may not have been at any time during the preceding
five years, and shall not be at any time while serving as an Independent Director/Manager of the
Equity Owner or Borrower if a single member limited liability company or, if applicable, either (a)
a shareholder of, or an officer, director, partner or employee of, Borrower or Equity Owner or any
of their respective shareholders, partners, members, subsidiaries or Affiliates, (b) a customer of,
or supplier to, Borrower or Equity Owner or any of their respective shareholders, partners,
members, subsidiaries or Affiliates, (c) a person or other entity Controlling or under common
Control with any such shareholder, officer, director, partner, member, employee, supplier or
customer, or (d) a member of the immediate family of any such shareholder, officer, director,
partner, member, employee, supplier or customer.




          “Individual Property” means fee title to, or a leasehold interest in, as the case may
be, of any of the properties described in Exhibit G.




          “Insurance Premium Escrow Account” means an account held by Lender, or Lender’s
designee, in which Borrower’s initial deposit for Insurance Premiums paid on the Closing Date and
the Monthly Insurance Deposits will be held, pursuant to the provisions of Section 4.03 of this
Loan Agreement.




          “Insurance Premiums” means the premiums for the insurance Borrower is required to
provide pursuant to Section 9.03 of this Loan Agreement.




          “Interest Accrual Period” shall mean, with respect to any Payment Due Date, the period
beginning on the fifteenth (15th) day of the month prior to such Payment Due Date,
through and including the fourteenth (14th) day of the month of such Payment Due Date.
By way of example, for a Payment Due Date of February 9, the Interest Accrual Period would run from
January 15 through and including February 14.




          “Interest Rate Adjustment Date” means two (2) Business Days prior to the beginning of
any Interest Accrual Period.




          “Interest Rate Index” means the weekly average yield on United States Treasury
Securities adjusted to a constant maturity of one year, as made available by the Federal Reserve
Board forty-five (45) days prior to each Interest Rate Adjustment Date.




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          “Issuer Group” has the meaning set forth in Section 15.05 of this Loan Agreement.




          “Issuer Person” has the meaning set forth in Section 15.05 of this Loan Agreement.




          “Land” has the meaning set forth in the Security Instrument.




          “Large Loan Statements” has the meaning provided in Section 15.06 of this Loan
Agreement.




          “Lease” has the meaning set forth in the Security Instrument.




          “Lease Guaranty” has the meaning set forth in the Security Instrument.




          “Leasehold Estate” shall have the meaning set forth in the Security Instrument.




          “Lender” has the meaning in the introductory paragraph of this Loan Agreement.




          “Letter of Credit” has the meaning set forth in Section 6.07 of this Loan Agreement.




          “LIBOR Rate” means the average of London Interbank Offered Rates (in U.S. dollar
deposits) for a term of one month determined solely by Lender as of each Interest Rate Adjustment
Date. On each Interest Rate Adjustment Date, Lender will obtain the close-of-business LIBOR Rate
from “Page 3750” on the Telerate Service (or such other page as may replace Page 3750 on that
service) on the Interest Rate Adjustment Date. If Telerate Service ceases publication or ceases to
publish the LIBOR Rate, Lender shall select a comparable publication to determine the LIBOR Rate
and provide notice thereof to Borrower. The LIBOR Rate may or may not be the lowest rate based
upon the market for U.S. dollar deposits in the London Interbank Eurodollar Market at which Lender
prices loans on the date on which the LIBOR Rate is determined by Lender as set forth above.




          “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or otherwise), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, the filing of any financing statement under
the UCC or comparable law of any jurisdiction in respect of any of the foregoing and a mechanics’
or materialman’s lien).




          “Liquidity” means cash and unencumbered, marketable securities.




          “Loan” means the aggregate of all principal and interest payments that accrue or are
due and payable in accordance with the Loan Agreement, together with any other amounts due under
the Loan Documents. The terms “Loan” and “Debt” have the same meaning whenever used in the Loan
Documents.




          “Loan Agreement” means this Loan Agreement.




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          “Loan Amount” means the principal amount of $48,750,000.00 (as increased pursuant to
the terms hereunder), in lawful money of the United States of America, to be advanced to Borrower
pursuant to this Loan Agreement. Reference in the Loan Agreement to “Loan Amount” mean the maximum
principal amount, irrespective of actual principal amount outstanding or actually advanced to
Borrower during the term of the Loan.




          “Loan Constant” means 11.33%.




          “Loan Documents” means, collectively, this Loan Agreement, the Note, the Security
Instrument, the Assignment of Leases and Rents, the Assignment of Property Management Contract, the
Environmental Indemnity, the Guaranty, the Lockbox Agreement, the Assignment of Interest Rate Cap
Agreement, the Rate Cap Provider Consent and any and all other documents and agreements executed in
connection with the Loan, as each such agreement may be modified, supplemented, consolidated,
extended, restated or reinstated from time to time.




          “Loan to Value Ratio” means with respect to the specified period, the ratio obtained
by dividing (a) the Outstanding Loan Amount, by (b) either, as selected in Lender’s discretion, the
“as-is” or “as-stabilized” value of the Property as set forth in the appraisal obtained by Lender
in connection with its underwriting of the Loan or any update thereto, whichever is most recent.




          “Lockbox Agreement” means the Lockbox – Deposit Account and Control Agreement dated as
of the Closing Date between Borrower, PNC Bank and Lender.




          “Lockbox Trigger Event” has the meaning set forth in the Lockbox Agreement.




          “Losses” means any and all claims, suits, liabilities (including, without limitation,
strict liabilities and liabilities under federal and state securities laws), actions, proceedings,
obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees, judgments,
awards, and amounts paid in settlement of whatever kind or nature (including without limitation
reasonable legal fees and other costs of defense).




          “Major Lease” means any Lease covering ten percent (10%) or more rentable square feet
of any Individual Property including any expansion options years including any extension or options
to renew. Lender may, in Lender’s sole discretion, aggregate any and all Leases to Affiliated to
determine whether such Leases should be treated as a Major Lease.




          “Margin” has the meaning set forth in Section 2.02(b) of this Loan Agreement.




          “Material Adverse Effect” means, with respect to any circumstance, act, condition or
event of whatever nature (including any adverse determination in any litigation, arbitration, or
governmental investigation or proceeding), whether singly or in conjunction with any other event,
act, condition circumstances, whether or not related, in Lender’s reasonable judgment, a material
adverse change in, or a materially adverse effect upon (a) the business, operations, prospects or
financial condition of Borrower or Guarantor; (b) the ability of Borrower or Guarantor to perform
its obligations under any Loan Document to which it is a party; (c) the value or condition of the
Property; (d) compliance of the Property with any Requirements of Law; (e) the validity, priority
or enforceability of any Loan Document or the liens, rights




80









 







(including, without limitation, recourse against the Property) or remedies of Lender hereunder
or thereunder; or (f) the occupancy rate of the Property.




          “Maturity Date” has the meaning set forth in Section 2.03(c) of this Loan Agreement.
If Borrower has extended the Maturity Date in accordance with this Loan Agreement, references
thereafter in this Loan Agreement shall mean the Maturity Date as so extended, unless the context
otherwise requires.




          “Monthly Insurance Deposit” means, with respect to the specified period, an amount
equal to one-twelfth (1/12) of the Insurance Premiums that Lender estimates will be payable during
the next ensuing twelve (12) months, subject to adjustment as set forth in Section 4.03(d) of this
Loan Agreement.




          “Monthly Replacement Reserve Deposit” has the meaning set forth in Section 4.05(b) of
this Loan Agreement, subject to adjustment as set forth in Section 4.05(d).




          “Monthly Tax Deposit” means, with respect to the specified period, an amount equal to
one-twelfth (1/12) of the Taxes that Lender estimates will be payable during the next ensuing
twelve (12) months, subject to adjustment as set forth in Section 4.02(d) of this Loan Agreement.




          “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.




          “Net Worth” means, as of a given date, a Person’s equity calculated in conformance
with GAAP by subtracting total liabilities from the total market value of total tangible assets.




          “Note” means the Promissory Note dated as of the Closing Date from Borrower to the
order of Lender in the maximum principal amount equal to $58,740,000.




          “Obligations” means the Loan, and all other obligations and liabilities of the
Borrower to Lender, whether direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of, or in connection with the Loan
the Loan Documents, whether on account of principal, interest, fees, indemnities, costs, expenses
(including, without limitation, all reasonable fees and disbursements of legal counsel) or
otherwise.




          “OFAC List” means the list of specially designated nationals and blocked persons
subject to financial sanctions that is maintained by the U.S. Treasury Department, Office of
Foreign Assets Control and any other similar list maintained by the U.S. Treasury Department,
Office of Foreign Assets Control pursuant to any Requirements of Law, including, without
limitation, trade embargo, economic sanctions, or other prohibitions imposed by Executive Order of
the President of the United States. The OFAC List is accessible through the internet website
www.treas.gov/ofac/t11sdn.pdf.




          “Operating Agreements” has the meaning set forth in the Security Instrument.




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          “Operating Expenses” means all cash expenses actually incurred by or charged to
Borrower (appropriately pro-rated for any expenses that, although actually incurred in a particular
period, also relate to other periods), with respect to the ownership, operation, leasing and
management of the Property in the ordinary course of business, determined in accordance with GAAP,
including, without limitation: (a) personal property taxes and real estate taxes; (b) sales taxes
or any tax on rents (unless netted against Operating Income); (c) wages, salaries, payroll taxes
and employee benefits; (d) costs of utility services; (e) maintenance, repair and custodial costs;
(f) premiums payable for insurance carried on or with respect to the Property; (g) office supplies,
other administrative expenses and professional fees; (h) costs of advertising and marketing for the
Property; (i) costs of telephone service; (j) costs of garbage removal; (k) an allowance for income
items that are determined to be uncollectible; (l) if a property or asset manager has been engaged
by Borrower, any compensation, fees or reimbursements paid to such property or asset manager; if a
property or asset manager has not been engaged by Borrower, all management related and head office
expenses and salaries incurred by Borrower (but not less than 1.75% of Operating Income) and (k)
ground rents. Notwithstanding the foregoing, Operating Expenses specifically exclude (1)
capital expenditures, (2) depreciation and amortization, (3) payments made in connection with the
payment of the outstanding principal balance of the Loan, (4) costs of Restoration following a
Casualty or Condemnation, (5) funds disbursed from any Reserve Account, (6) any other non-cash
items, (7) interest expense and (8) all income tax expenses. Solely for purposes of calculating
the Debt Service Coverage Ratio under Sections 2.03(d)(ii)(F) and 10.03(a)(ii) and the Debt Service
Coverage Constant Ratio under Section 2.03(d)(ii)(D), Operating Expenses under clause (1) above
shall be deemed capped at the higher of (x) the actual management fee paid to any third party
property manager and (y) 1.75% of Operating Income.




          “Operating Income” means all gross cash income, revenues and consideration received or
paid to or for the account or benefit of Borrower resulting from or attributable to the operation
or leasing of the Property determined in accordance with GAAP, including, without limitation: (a)
parking revenues, rents from tenants, assignees, subtenants, ground lessee, or parties to walkway
agreements, provided such tenants, assignees or subtenants are in actual occupancy pursuant to
valid leases and paying rent; (b) amounts (to the extent included in Operating Expenses) payable by
tenants to Borrower on account of maintenance or service charges, taxes, assessments, utilities and
maintenance of the Property; (c) rents and receipts from licenses, service contracts, concessions,
vending machines and similar items located at or operated from the Property; and (d) interest
income; but excluding any income or revenues from a sale, refinancing, Casualty or
Condemnation, payment of rents more than one (1) month in advance, lease termination payments, or
payments from any other events not related to the ordinary course of operations of the Property.




          “Operating Permits” has the meaning set forth in Section 8.10 of this Loan Agreement.




          “Organizational Chart” means the chart attached hereto as Exhibit D which shows all
persons or entities having an ownership interest in Borrower and in the Equity Owner.




          “Other Charges” means all ground rents, maintenance charges, impositions (other than
Taxes) and similar charges (including, without limitation, vault charges and license





82









 







fees for the use of vaults, chutes and similar areas adjoining the Property), now or hereafter
assessed or imposed against the Property, or any part thereof, together with any penalties thereon.




          “Outstanding Loan Amount” means the principal amount of the Loan outstanding from time
to time.




          “Partial Release” has the meaning set forth in Section 10.03 of this Loan Agreement.




          “Partial Release Date” has the meaning set forth in Section 10.03 of this Loan
Agreement.




          “Partial Release Price” has the meaning set forth in Section 10.03 of this Loan
Agreement.




          “Payment Due Date” has the meaning set forth in Section 2.03(b) of this Loan
Agreement. It is the date that a regularly scheduled payment of principal and interest (or interest
if the loan payments are interest-only) is due.




          “Permitted Encumbrances” means each of the following:




          (a) Those exceptions shown in the Title Insurance Policy and each other Lien which has been
approved in writing by Lender.




          (b) Liens for taxes or other governmental charges not at the time delinquent or thereafter
payable without penalty or being contested in good faith by appropriate proceedings and, in each
case, for which Borrower maintains adequate reserves.




          (c) Liens arising in the ordinary course of business (such as (1) Liens of carriers,
warehousemen, mechanics and materialmen and other similar Liens imposed by law and (2) Liens
incurred in connection with worker’s compensation, unemployment compensation and other types of
social security (excluding Liens arising under ERISA) or in connection with surety bonds, bids,
performance bonds and similar obligations) for sums not overdue or being contested in good faith by
appropriate proceedings and not involving any deposits or advances or borrower money or the
deferred purchase price of property or services and, in each case, for which Borrower maintains
adequate reserves.




          (d) Liens arising in connection with capital leases (and attaching only to the property being
leased), subject to the limitations of Section 7.02(a)(xiii); and




          (e) easements, rights of way, restrictions, minor defects or irregularities in title and other
similar Liens arising after the date hereof which will not interfere in any material respect with
the value, use or ordinary conduct of the business of the Borrower.




          “Permitted Lease” has the meaning set forth in Section 9.06(a) of this Loan Agreement.




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          “Permitted Transfer” means each of the following:




          (a) Transfers of Equity Interests which, in the aggregate over the term of the Loan (i) do not
exceed forty-nine percent (49%) of the total interests in Borrower or in Equity Owner or in
Guarantor, as applicable; (ii) do not result in any Person holding an Equity Interest in Borrower
or Equity Owner, as applicable, which exceeds forty-nine percent (49%) of the total Equity
Interests in Borrower or in Equity Owner, as applicable; and (iii) do not result in a change of
Control.




          (b) Intentionally Reserved.




          (c) Transfers which have been approved by Lender in accordance with Section 10.02 of this Loan
Agreement.




          (d) Permitted Encumbrances.




          (e) All Transfers of worn out or obsolete furnishings, fixtures or equipment that are promptly
replaced with property of equivalent value and functionality.




          (f) All Major Leases which have been approved by Lender in accordance with this Loan
Agreement.




          (g) Transfer of interests in Borrower and its Affiliates prior to Closing which have been
approved by Lender.




          (h) All Leases which are not Major Leases and which have been approved by the Lender pursuant
to Section 9.06 or that not require Lender’s approval pursuant to Section 9.06.




          (i) If the transferor is an individual, Transfers of Equity Interests of such transferor to
such transferor’s immediate family members or trusts established for the benefit of such family
members for estate planning purposes, provided that (i) Borrower provides prior written notice of
such Transfers to Lender, together with all supporting information and documentation required by
Lender in connection with such Transfers, (ii) Borrower pays any and all Lender’s costs in
connection with the review of any such Transfer, and (iii) no such Transfer results in a change of
Control.




          “Person” means an individual, partnership, limited partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated association, joint
venture, governmental authority or other entity of whatever nature.




          “Personal Property” has the meaning set forth in the Security Instrument.




          “Prepayment Fee” has the meaning set forth in Section 2.05(b) of this Loan Agreement.




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          “Property” means collectively, all Individual Properties securing the Loan, as
described on Exhibit G attached hereto, or one or more of the Individual Properties, as the context
requires.




          “Property Management Contract” means the Operations Agreement between Borrower and
Property Manager which provides for the management of the Property for Borrower by Property
Manager.




          “Property Manager” means Airport Parking Management, Inc., a Delaware corporation or
any third party property manager retained by Borrower at Lender’s direction or with Lender’s
approval, all as set forth in this Loan Agreement.




          “Property Manager” means any third party property manager retained by Borrower at
Lender’s direction or with Lender’s approval, all as set forth in this Loan Agreement.




          “Property Banks” has the meaning set forth in Section 3.01 of this Loan Agreement.




          “Qualified Transferee” shall mean one or more of the following:




          (a) a real estate investment trust, bank, saving and loan association, investment bank,
insurance company, trust company, commercial credit corporation, pension plan, pension fund or
pension advisory firm, mutual fund, government entity or plan, provided that any such Person
referred to in this clause (i) satisfies the Eligibility Requirements;




          (b) an investment company, money management firm or “qualified institutional buyer” within the
meaning of Rule 144A under the Securities Act of 1933, as amended, or an institutional “accredited
investor” within the meaning of Regulation D under the Securities Act of 1933, as amended, provided
that any such Person referred to in this clause (ii) satisfies the Eligibility Requirements;




          (c) an institution substantially similar to any of the foregoing entities described in clauses
(i) or (ii) that has total assets (in name or under management) in excess of $600,000,000 and
(except with respect to a pension advisory firm or similar fiduciary) capital/statutory surplus or
shareholder’s equity of $250,000,000 satisfies the Eligibility Requirements;




          (d) any entity controlled by any of the entities described in clauses (i), (ii) or (iii)
above; or




          (e) an investment fund, limited liability company, limited partnership or general partnership
where a Permitted Fund Manager or an entity that is otherwise a Qualified Transferee under clauses
(i), (ii), (iii) or (iv) of this definition acts as the general partner, managing member or fund
manager and at least 50% of the equity interests in such investment vehicle are owned, directly or
indirectly, by one or more entities that are otherwise Qualified Transferees under clauses (i),
(ii), (iii) or (iv) of this definition.





85









 







which entity also either satisfies or engages a property manager or employs a management team which
satisfies the following:



1) has at least five (5) years’ experience in the management of off-airport parking operations
similar to the operation of the Property.



2) operates at least ten (10) off-airport parking facilities which (i) are located at a minimum of
six (6) different airports nationally; (ii) contain a minimum of 12,000 parking spaces in
aggregate, and (iii) generate a minimum revenue of $25 million annually.




          “Rate Cap” means an interest rate cap in the notional amount of the Outstanding Loan
Amount obtained by Borrower as protection against interest rate fluctuations under the Loan, which
interest rate cap shall remain in effect until the Maturity Date.




          “Rate Cap Agreement” means the written agreement evidencing the financial and
performance terms of the Rate Cap purchased by Borrower from Rate Cap Provider which satisfies all
requirements of Section 2.07 of this Loan Agreement.




          “Rate Cap Provider” means the counterparty issuing a Rate Cap to Borrower.




          “Rate Cap Provider Consent” means the Rate Cap Provider Consent and Acknowledgement to
Assignment of Rate Cap with respect to the assignment of the Rate Cap from Borrower to Lender,
executed by the Rate Cap Provider in favor of Lender.




          “Rating Agencies” means Fitch, Inc., Moody’s Investors Service, Inc. and S & P, or any
successor entity of the foregoing, or any other nationally recognized statistical rating
organization to the extent that any of the foregoing have been or will be engaged by Lender or its
designees in connection with or in anticipation of Securitization or any other sale or grant of
participation interests in the Loan (or any part thereof).




          “Rating Confirmation” means a written confirmation from each of the Rating Agencies
(unless otherwise agreed by Lender) that an action shall not result in a downgrade, withdrawal or
qualification of any securities issued in connection with a Securitization.




          “Release Property” means each portion of the Property identified as “Release Property”
above in the definition of Partial Release Price.




          “Rent Roll” means a statement from Borrower, in a form reasonably acceptable to
Lender, detailing the names of all tenants of the Property, the portion of Property occupied by
each tenant, the base rent and any other charges payable under each Lease, the term of each Lease,
the beginning date and expiration date of each Lease, whether any tenant is in default under its
Lease (and detailing the nature of such default), and any other information as is reasonably
required by Lender, all certified by a Responsible Officer to be true, correct and complete.




          “Rents” has the meaning set forth in the Security Instrument.




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          “Replacement Reserve Account” means an account held by Lender, or Lender’s designee,
in which the Monthly Replacement Reserve Deposits will be held, which shall not constitute a trust
fund.




          “Replacement Reserve Cap” has the meaning set forth in Section 4.05(b).




          “Replacements” means the scheduled repairs and replacements to the Property identified
on Exhibit F hereto.




          “Requirements of Law” means (a) the organizational documents of an entity, and (b) any
law, regulation, ordinance, code, decree, treaty, ruling or determination of an arbitrator, court
or other Governmental Authority, or any Executive Order issued by the President of the United
States, in each case applicable to or binding upon such Person or to which such Person, any of its
property or the conduct of its business is subject including, without limitation, laws, ordinances
and regulations pertaining to the zoning, occupancy and subdivision of real property.




          “Reserve Accounts” means, individually and collectively, as the context requires, the
Tax Escrow Account, the Insurance Premiums Escrow Account, the Replacement Reserve Account, the
Capital Improvements/Deferred Maintenance Escrow Account and the Leasehold Payment Reserve Account.




          “Reserve Item” means, individually and collectively, as the context requires, the
Replacements, the Capital Improvements.




          “Responsible Officer” means, as to any Person, an individual who is a managing member,
a general partner, the chief executive officer, the president or any vice president of such Person
or, with respect to financial matters, the chief financial officer or treasurer of such Person or
any other officer authorized by such Person to deliver documents with respect to financial matters
pursuant to this Loan Agreement.




          “Restoration” means the repairs, replacements, improvements, or rebuilding of or to
the Property following a Casualty or Condemnation.




          “Restoration Deficiency Deposit” has the meaning set forth in Section 9.04(d) of this
Loan Agreement. All amounts deposited by Borrower with Lender as the Restoration Deficiency
Deposit shall become a part of the Restoration Proceeds and disbursed by Lender for Restoration on
the same conditions applicable to disbursement of Restoration Proceeds and, until so disbursed, are
pledged to Lender as security for the Loan and Obligations.




          “Restoration Holdback” has the meaning set forth in Section 9.04(e) of this Loan
Agreement.




          “Restoration Proceeds” has the meaning set forth in Section 9.04(b) of this Loan
Agreement.




          “S & P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., and any successor thereto.




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          “Second Extended Maturity Date” has meaning set forth in Section 2.03(d) of this Loan
Agreement.




          “Second Extension Term” has meaning set forth in Section 2.03(d) of this Loan
Agreement.




          “Securities Act” means the Securities Act of 1933 and any successor statute thereto
and the related regulations issued thereunder, all as amended from time to time.




          “Securities Exchange Act” means the Securities Exchange Act of 1934, and any successor
statute thereto and the related regulations issued thereunder, all as amended from time to time.




          “Securities Liabilities” has the meaning provided in Section 15.05 of this Loan
Agreement.




          “Securitization” or “Securitize” means the sale of the Loan, by itself or as
part of pool with other loans, in a transaction whereby mortgage pass-through certificates or other
securities evidencing a beneficial interest, backed by the Loan or such pool of loans, will be sold
as a rated or unrated public offering or private placement.




          “Security Instrument” means those certain Mortgages, Assignment of Rents and Leases,
Security Agreement and Fixture Filing, or the Deed of Trust, Assignment of Rents and Leases,
Security Agreement and Fixture Filing, as applicable, encumbering the Property and executed by
Borrower to Lender or to a trustee for the benefit of Lender, as the case may be, to secure
Borrower’s payment of the Loan and performance of the Obligations.




          “Single Purpose Entity” has the meaning set forth in Section 7.02 of this Loan
Agreement.




          “Standard Lease Form” means, as applicable, the standard form of lease agreement used
by Borrower for the rental of commercial units at the Property and the standard form of lease
agreement used by Borrower for the rental of residential units at the Property, in each case in the
form certified to Lender as of the Closing Date or subsequently approved by Lender in writing.




          “Strike Rate” means with respect to the period from and including the Closing Date
through October 15, 2008, four and forty-eight one-hundredths percent (4.48%). The Strike Rate for
any Extension Term shall be determined by Lender in accordance with Section 2.03(d) hereof.




          “Tax Code” means the Internal Revenue Code of 1986 and the related Treasury Department
regulations issued thereunder, including temporary regulations, all as amended from time to time.




          “Tax Escrow Account” means an account held by Lender, or Lender’s designee, in which
Borrower’s initial deposit for Taxes made on the Closing Date and the Monthly Tax Deposits will be
held, which shall not constitute a trust fund.




88









 








          “Taxes” means all real estate taxes, government assessments or impositions, lienable
water charges, lienable sewer rents, assessments due under owner association documents, ground
rents, vault charges and license fees for the use of vault chutes and all other charges (other than
the Other Charges), now or hereafter levied or assessed against the Land and Improvements.




          “Title Insurance Policy” means the mortgagee title insurance policy obtained by Lender
in connection with the Loan, and, until the issuance of such policy, the commitment for title
insurance as marked-up as of the Closing Date, in either case in form and substance (with such
endorsements and affirmative coverages) as is satisfactory to Lender, insuring that the Security
Instrument constitutes a perfected first Lien against the Property in the Loan Amount, subject only
to Permitted Encumbrances.




          “Transfer” means any action other than a Permitted Transfer by which either (a) the
legal or beneficial ownership of the Equity Interests in Borrower or in Equity Owner or (b) the
legal or equitable title to the Property, or any part thereof, or (c) the cash flow from the
Property or any portion thereof, are sold, assigned, transferred, hypothecated, pledged or
otherwise encumbered or disposed of, in each case (a), (b) or (c) whether undertaken, directly or
indirectly, or occurring by operation of law or otherwise, including, without limitation, each of
the following actions:





	 	(i)	 	the sale, conveyance, assignment, grant of an
option with respect to, mortgage, deed in trust, pledge, grant of a
security interest in, or any other transfer, as security or otherwise,
of the Property or with respect to the Leases or Rents (or any
thereof);
	 
	 	(ii)	 	the grant of an easement across the Property
(other than minor easements not having a Material Adverse Effect) or
any other agreement granting rights in or restricting the use or
development of the Property (including, without limitation, air
rights);
	 
	 	(iii)	 	an installment sale wherein Borrower agrees to
sell the Property for a price to be paid in installments;
	 
	 	(iv)	 	an agreement by Borrower leasing all or a
substantial part of the Property for other than actual occupancy by a
space tenant thereunder; or
	 
	 	(v)	 	the issuance of additional partnership,
membership or other equity interests, as applicable.





          “Transferee” has the meaning provided in Section 6.08 of this Loan Agreement.




          “UCC” means the Uniform Commercial Code in effect in the State where the Property is
located, as from time to time amended or restated. For purposes of the UCC’s application to the
Reserve Accounts, the parties agree that the Reserve Accounts shall be deemed located in the laws
of the State of New York.





89










 






          “Underwriter Group” has the meaning provided in Section 15.05 of this Loan
Agreement.




ARTICLE 20




FUTURE FUNDINGS




     20.01. General. As of the Closing Date, Borrower is pursuing the acquisition of
certain other fee and leasehold properties located in New York, New York (“La Guardia
Property”) and Phoenix, Arizona (“Phoenix Property”), respectively. Accordingly,
Borrower has not completed, nor submitted to Lender for review and approval, all of the due
diligence materials required in connection with either such property. Within forty-five (45) days
of the date of this Agreement, Borrower agrees to submit all due diligence materials relating to
such properties specified in the closing conditions listed on Exhibit I (“Future Funding
Conditions”). Accordingly, notwithstanding anything to the contrary contained in this Loan
Agreement, it is contemplated that, subject to satisfaction of the Future Funding Conditions and/or
of this Loan Agreement, as the case may be, the Loan will be disbursed in three (3) separate
advances, as follows:



          (a) $48,750,000 shall be disbursed on the Closing Date;




          (b) $7,200,000 shall be disbursed on or before November 17, 2005 in connection with the La
Guardia Property (the “La Guardia Disbursement”); and




          (c) $2,790,000 shall be disbursed on or before November 17, 2005 in connection with the
Phoenix Property (the “Phoenix Disbursement”).




     20.02. The La Guardia Disbursement.



          (a) The Lender shall not be required to make the La Guardia Disbursement unless all of the
Future Funding Conditions with respect to the La Guardia Property have been met as of November 17,
2005 and/or have been waived in writing by the Lender and each of the following additional
conditions have been met:





	 	(i)	 	The Borrower shall have executed and delivered
an acceptable first mortgage and an assignment of leases and rents
encumbering such property in favor of Lender;
	 
	 	(ii)	 	The Title Insurance Policy shall be increased
by $7,200,000 and endorsed to include the La Guardia Property.
	 
	 	(iii)	 	The notional amount of the Rate Cap shall be
increased by $7,200,000.
	 
	 	(iv)	 	The Lender shall have received an opinion of
local counsel for the Borrower regarding the proper form and
enforceability of the




90









 






	 	 	 	mortgage and the assignment of leases and rents
encumbering such property.
	 
	 	(v)	 	No Event of Default shall have occurred and be
continuing under this Loan Agreement.
	 
	 	(vi)	 	Each of the representations and warranties of
the Borrower set forth in this Loan Agreement shall be true and
accurate as of the date of such disbursement.





          (b) In the event the La Guardia Disbursement is made:





	 	(i)	 	The Allocated Loan Amount shall be $7,200,000
for the La Guardia Property, and Exhibit E will be deemed modified
accordingly.
	 
	 	(ii)	 	The following references shall be modified:






	 	(A)	 	Exhibit G will be deemed modified
by any additional capital improvements identified by Lender in
writing.
	 
	 	(B)	 	the definition of Ground Lease
will be modified to reflect any ground lease associated with the
La Guardia Property, and individually or collectively with the
Ground Lease on the Columbus, Ohio property as the context of
the Loan Documents requires.
	 
	 	(C)	 	the Monthly Replacement Reserve
Deposit shall be increased by $785.83.
	 
	 	(D)	 	all references to Property shall
be deemed to include the La Guardia Property.
	 
	 	(E)	 	the Capital Improvements/Deferred
Maintenance Deposit shall be increased by an amount determined
by Lender, in its sole reasonable discretion.
	 
	 	(F)	 	the Replacement Reserve Cap and
any applicable Letter of Credit shall be increased by $9,430.
	 
	 	(G)	 	the Leasehold Payment Reserve
Account shall be increased by an amount equal to one month’s
rent under any ground lease of the La Guardia Property.






	 	(iii)	 	The Prepayment Fee specified in Section
2.05(b)(iii)(A) shall be reduced to eighty-eight one-hundredths percent
(0.88%), the Prepayment Fee specified in Section 2.05(b)(iii)(B) shall be reduced
to forty-four one-hundredths percent (0.44%) and the




91









 






	 	 	 	release fee
applied to the Partial Release Price shall be reduced to 0.88% in
Section 10.03(a(iii)(A) and 0.44% in Section 10.03(a)(iii)(B).





     20.03. The Phoenix Disbursement.



          (a) The Lender shall not be required to make the Phoenix Disbursement unless all of the Future
Funding Conditions with respect to the Phoenix Property have been met as of November 17, 2005
and/or have been waived in writing by the Lender and each of the following additional conditions
have been met:





	 	(i)	 	The Borrower shall have executed and delivered
an acceptable first deed of trust and an assignment of leases and rents
encumbering such property in favor of Lender.
	 
	 	(ii)	 	The Title Insurance Policy shall be increased
by $2,790,000 and endorsed to include the Phoenix Property.
	 
	 	(iii)	 	The notional amount of the Rate Cap shall be
increased by $2,790,000.
	 
	 	(iv)	 	The Lender shall have received an opinion of
local counsel for the Borrower regarding the proper form and
enforceability of the deed of trust and the assignment of leases and
rents encumbering such property.
	 
	 	(v)	 	No Event of Default shall have occurred and be
continuing under this Loan Agreement.
	 
	 	(vi)	 	Each of the representations and warranties of
the Borrower set forth in this Loan Agreement shall be true and
accurate as of the date of such disbursement.





          (b) In the event the Phoenix Disbursement is made:





	 	(i)	 	The Allocated Loan Amount shall be $2,790,000
for the Phoenix Property, and Exhibit E will be deemed modified
accordingly.
	 
	 	(ii)	 	The following references shall be modified:






	 	(A)	 	Exhibit G will be deemed modified
by any additional capital improvements identified by Lender in
writing.
	 
	 	(B)	 	the Monthly Replacement Reserve
Deposit shall be increased by $550.00.
	 
	 	(C)	 	all references to Property shall
be deemed to include the Phoenix Property.




92









 






	 	(D)	 	the Capital Improvements/Deferred
Maintenance Deposit shall be increased by $600,000.
	 
	 	(E)	 	the Replacement Reserve Cap and
any applicable Letter of Credit shall be increased by $6,600.






	 	(iii)	 	The equity investment described in Sections
8.30 and 9.17 shall be increased by $1,235,000.





93









 





Loan Number: 48442




	 	 	 
	Attachments:
	 	 
	 
	 	 
	Schedule 8.01

	 	Exceptions to Required Approvals
	Schedule 8.04

	 	Litigation
	Schedule 8.08

	 	Condemnation Proceedings
	Schedule 8.09

	 	Exceptions to Compliance with Requirements of Law
	Schedule 8.10

	 	Exceptions to Required Licenses and Permits
	Schedule 8.11

	 	Exceptions to Separate Tax Lots
	Schedule 8.15

	 	Encroachments
	Schedule 8.19(A)

	 	Leases
	Schedule 8.19(D)

	 	Leases to Related Persons
	Schedule 8.32

	 	Leases for which no memorandum has been recorded and
	 

	 	Changes since Memorandum of Lease
	Exhibit A

	 	Compliance Certificate Form
	Exhibit B

	 	Disbursement Request Form
	Exhibit C

	 	Capital Improvements
	Exhibit D

	 	Organizational Chart
	Exhibit E

	 	Allocated Loan Amount
	Exhibit F

	 	Replacements
	Exhibit G

	 	List of Properties
	Exhibit H

	 	Excess Parcel
	Exhibit I

	 	Future Funding Conditions






[Remainder of page is blank; signatures appear on next page.]




 









 








          IN WITNESS WHEREOF, Lender and Borrower hereby sign, seal and deliver this Loan Agreement. By
signing below on behalf of Borrower, Equity Owner also consents, in its individual capacity, to the
obligations of Equity Owner set forth in Sections 9.11(c), 8.21 and Article 15 of this Loan
Agreement.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	LENDER:
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	GMAC COMMERCIAL MORTGAGE BANK, a Utah industrial bank
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Nancy Bendokas	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Nancy Bendokas
	 	 	 	 	Title:	 	Limited Signer
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	BORROWER:
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	PCAA SP, LLC, a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	PCAA Parent, LLC, a Delaware limited liability
	 	 	 	 	company, its Sole Member
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Parking Company of America Airports
	 	 	 	 	 	 	Holdings, LLC, a Delaware limited liability
	 	 	 	 	 	 	company, its Managing Member
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:	 	Macquarie Americas Parking
	 	 	 	 	 	 	 	 	Corporation, a Delaware
	 	 	 	 	 	 	 	 	corporation, its Managing Member
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	By:	 	/s/ Peter Stokes
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	Name:
	 	Peter Stokes
	 

	 	 	 	 	 	 	 	 	 	Title:
	 	Vice President
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Borrower’s State Identification Number:
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Borrower’s Tax Identification Number:
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 





2









 





          Parking Company of America Airports LLC executes this Agreement to acknowledge the provisions
of Section 8.34 hereof.




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	PARKING COMPANY OF AMERICA AIRPORTS LLC
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	PCAA Parent, LLC, a Delaware limited liability

company, its Sole Member
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Parking Company of America Airports
Holdings, LLC, a Delaware limited liability company, its Managing Member
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:	 	Macquarie Americas
Parking Corporation, a Delaware corporation, its Managing Member
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	By:	 	/s/ Peter Stokes	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Name:	 	Peter Stokes
	 	 	 	 	 	 	 	 	 	 	Title:	 	Vice President






3









 





SCHEDULE 8.01




Exceptions to Required Approvals





	1.	 	St. Louis Site, Edmunson, Missouri, requires that a new certificate of occupancy be issued
after a transfer of real estate is completed. Borrower has made the necessary applications
but a final certificate of occupancy cannot be provided until the closing has occurred. Once
the closing occurs, the final certificate of occupancy will be pursued by Borrower diligently.





 









 





SCHEDULE 8.04




Litigation




None.




 









 





SCHEDULE 8.08




Condemnation Proceedings





	1.	 	Phoenix Site, Borrower is acquiring the Phoenix Site subject to a pre-existing purchase
agreement pursuant to which the City of Phoenix is acquiring 2,076 square feet of frontage
along East Washington Street along with a temporary construction easement and a public utility
easement. A copy of this purchase agreement was provided to Lender.





 









 





SCHEDULE 8.09




Exceptions to Compliance with Requirements of Law





	1.	 	St. Louis Site, Edmunson, Missouri, requires that a new certificate of occupancy be issued
after a transfer of real estate is completed. Borrower has made the necessary applications
but a final certificate of occupancy cannot be provided until the closing has occurred. Once
the closing occurs, the final certificate of occupancy will be pursued by Borrower diligently.





 









 





SCHEDULE 8.10




Exceptions to Required Licenses and Permits





	1.	 	St. Louis Site, Edmunson, Missouri, requires that a new certificate of occupancy be issued
after a transfer of real estate is completed. Borrower has made the necessary applications
but a final certificate of occupancy cannot be provided until the closing has occurred. Once
the closing occurs, the final certificate of occupancy will be pursued by Borrower diligently.





 









 





SCHEDULE 8.11




Exceptions to Separate Tax Lots




None.




 









 





SCHEDULE 8.15




Encroachments




As shown on surveys delivered to Lender.




 









 





SCHEDULE 8.19(A)




Leases





	1.	 	Buffalo, the Buffalo Site is subject to an office space lease in favor of Pasquale
Scarzamuzza dated July 1, 1992 which has been renewed on a year to year basis.





 









 





SCHEDULE 8.19(D)




Leases to Related Persons




None.




 









 





SCHEDULE 8.32




Leases for which no memorandum has been recorded

and

Changes since Memorandum of Lease




None.




 









 





Exhibit A




Compliance
Certificate Form





 










 






COMPLIANCE CERTIFICATE




Borrower Name:                                                                                                                                                                




Property Address:                                                                                                                                                                




GMACCM Loan Number:                                                                                                                                            



Borrower is providing this Compliance Certificate in accordance with the terms of the Loan
Agreement dated October 3, 2005 (“Loan Agreement”) executed between Borrower and GMAC
Commercial Mortgage Bank (“Lender”). Capitalized terms used in this Compliance Certificate
and not specifically defined herein have the meaning provided in the Loan Agreement.



This
Compliance Certificate covers the period from
                    , 
200___  through                     ,
200___, inclusive (“Covered Period”).



Borrower hereby represents, warrants and certifies to Lender that, as of the date hereof (or such
other date as may be specified below), and unless otherwise provided on Schedule A hereto:





	1.	 	No Event of Default has occurred and is continuing [, and no event or condition exists that
would be an Event of Default if notice had been given or applicable grace/cure periods had
expired (or both).]
	 
	2.	 	Borrower’s representations and warranties set forth in the Loan Documents [(including without
limitation, those in Article 8 of the Loan Agreement and in Article 2 of the Environmental
Indemnity Agreement)] are true and correct in all material respects.
	 
	3.	 	The Debt Service Coverage Ratio as of the end of the Covered Period is:





	 	 	 	 	 	 	 
	 

	 	Required:
	 	___  to 1.0
	 	 
	 

	 	Actual:
	 	___  to 1.0	 	 







	4.	 	Guarantor’s Net Worth as of the end of the Covered Period is:





	 	 	 	 	 	 	 
	 

	 	Required:
	 	___
	 	 
	 

	 	Actual:
	 	___	 	 







	5.	 	Guarantor’s Liquidity as of the end of the Covered Period is:





	 	 	 	 	 	 	 
	 

	 	Required:
	 	___
	 	 
	 

	 	Actual:
	 	___	 	 







	6.	 	The following financial statements of Borrower (“Financial Statements”) attached hereto are
true, accurate and complete reports of the period covered thereby:






	 	 	[___] [monthly][quarterly][year-to-date] operating statement for the Property





 









 





	 	 	[___] [monthly][quarterly][year-to-date] balance statement
	 
	 	 	[___] [monthly][quarterly][year-to-date] changes in financial position
	 
	 	 	[___] [monthly][quarterly][year-to-date] profit/loss statement
	 
	 	 	[___] [monthly][quarterly][year-to-date] statement detailing the amount and type
of Capital Expenditures completed at the Property during
          the applicable period




No payments have been made to equity investors in Borrower as returns of equity other than as
reported in [identify applicable financial statement and its date].





	7.	 	No Transfer has occurred in violation of the Loan Agreement. If any change has occurred in
Borrower’s Organizational Chart, a new Organizational Chart is attached hereto.
	 
	8.	 	The attached operating budget for the Property is a true, accurate and complete projection of
Operating Income, Operating Expenses and Capital Expenditures reasonably anticipated in good
faith for the period commencing on ___ and ending ___, inclusive.
	 
	9.	 	No floods, major plumbing or water leaks have occurred at the Property since the end of the
Covered Period in the last Compliance Certificate.
	 
	10.	 	No event or condition exists which, in Borrower’s reasonable judgment, could have Material
Adverse Effect on Borrower, any Guarantor, the Property, the Property Manager or any Major
Lease.
	 
	11.	 	No change has occurred in the Property Manager or with respect to the Property Management
Contract. No event of default currently exists under the Property Management Contract[, and
no event or condition exists that would be an event of default under the Property Management
Contract if notice had been given or applicable grace/cure periods had expired (or both)].
	 
	12.	 	All policies of insurance required for the Loan are in full force and effect and in the
required coverage amounts. Borrower has not received notice that any insurance policy is to
be cancelled, not renewed, materially modified or existing coverage excluded.





[OPTIONAL PROVISIONS, AS NEEDED]





	13.	 	The Loan-to-Value Ratio as of the determination date is:





	 	 	 	 	 	 	 
	 

	 	Required:
	 	___
	 	 
	 

	 	Actual
	 	___	 	 






2









 







	14.	 	The outstanding principal balance of all indebtedness (other than the Loan) of Borrower is
___. Schedule A identifies each obligation, the purpose, and principal amount due.
	 
	15.	 	The outstanding principal balance of all indebtedness of Equity Owner is ___. Schedule
A identifies each obligation, the purpose, and principal amount due.
	 
	16.	 	No unpaid or unreimbursed construction or fit-up allowances are due to any tenant of a Major
Lease.
	 
	17.	 	The O&M Plan (as defined in the Environmental Indemnity Agreement) for [define purpose] is
being followed and maintained.
	 
	18.	 	The attached current budget for ______ [define scope of work, e.g. Capital
Improvements, Replacements] represents Borrower’s good faith and reasonable estimate of the
funds needed to complete the required work. Any change in a budget item, scope of work, or
completion date since the end of the Covered Period in the last Compliance Certificate is
identified on Schedule A. [No material dispute exists between Borrower and any
contractor, supplier, subcontractor or material provider in connection with any work or
improvements being performed at the Property.]
	 
	19.	 	[Use this provision when repairs/improvements are required, but Lender has not escrowed,
reserved or held back funds to ensure completion]. The [define scope of work, e.g. Capital
Improvements] [have been completed][are progressing on schedule] in compliance with the
requirements of the Loan Agreement. All payments due to contractors, suppliers,
subcontractors and material providers in connection with such work have been paid in full, and
no Liens exists against the Property in connection with such work.




3









 










BY SIGNING BELOW, Borrower certifies that (a) all information provided in this Compliance
Certificate and Schedule A hereto (if attached) is true, accurate and correct in all material
respects and does not omit any material fact that would make any statement false or misleading and
(b) the undersigned representative is duly authorized to sign this Compliance Certificate on
Borrower’s behalf.




	 	 	 	 	 
	 

	Borrower	 	 
	 
	 	 	 	 
	Date:

	By: 	 

    	 	 
	 

	Name:	 	 
	 

	Title:	 	 






4









 






Exhibit B




Disbursement Request Form




 









 








Exhibit C




Capital Improvements




     None.



2









 





Exhibit D




Organizational Chart




3









 








Exhibit E




Allocated Loan Amount




	 	 	 	 	 	 	 	 	 
	Buffalo

	 	-
	 	$	9,100,000	 	 	 
	Houston

	 	-
	 	$	1,100,000	 	 	 
	Columbus

	 	-
	 	$	4,300,000	 	 	 
	Oklahoma City

	 	-
	 	$	3,500,000	 	 	 
	Philadelphia

	 	-
	 	$	10,250,000	 	 	 
	St. Louis

	 	-
	 	$	20,500,000	 	 	 






4









 






Exhibit F




Replacements




5









 








Exhibit G




List of Properties




	 	 	 	 	 
	1.

	 	Buffalo, NY
	 	 
	2.

	 	Houston, TX	 	 
	3.

	 	Columbus, OH	 	 
	4.

	 	Oklahoma City, OK	 	 
	5.

	 	Philadelphia, PA	 	 
	6.

	 	St. Louis, MO	 	 






6









 






Exhibit H




Oklahoma City Release Parcel




7









 








Exhibit I




Future Funding Conditions




     Lender’s obligation to fund the La Guardia Property or the Phoenix Property shall be
conditioned upon, and subject to, satisfaction of each of the following conditions:



     (a) Lender shall have received to the extent not previously delivered to and approved by
Lender prior to the date hereof:



          (i) a final written appraisal satisfactory to Lender;



          (ii) a written comprehensive environmental Phase One site assessment meeting Lender’s
requirements, conducted using ASTM standards by certified independent qualified environmental
consultant(s) registered with the Lender, and satisfactory resolution of any environmental issues
raised therein (including, but not limited to, Phase II environmental reports if necessary);



          (iii) a final written architectural and engineering report by an engineering firm designated
by Lender satisfactory to Lender; and



          (iv) the original, or a copy certified by the insurance agent, of the policy(ies) of
insurance, all in form and content satisfactory to Lender. Insurance binders or certificates will
not be accepted.



     (b) Final review and approval of any documentation, other than the Loan Documents,
contemplated by the transaction described in the Addendum to Application or otherwise required in
satisfying all of the remaining terms and conditions of this letter.



     (c) All of the terms, covenants and conditions of the Addendum to Application dated August 10,
2005 (“Application”) and this Exhibit I on the part of Borrower to be fulfilled or
performed shall have been fulfilled and performed to the satisfaction of Lender.



     (d) Other terms and conditions:



          (i) Intentionally omitted.



          (ii) Intentionally omitted.



          (iii) Intentionally omitted.



          (iv) Receipt of estoppels and consents from landlords under all ground leases (which will be
in effect after the Loan Closing) in form substantially similar to those attached to the Agreement
for the Sale and Purchase of Property dated as of August 2, 2005, together with satisfactory
estoppels for any leases subsequently entered into after the dates of the aforesaid estoppels and
consents.



8









 





          (v) Receipt and approval by Lender, to its satisfaction, of zoning letters with respect to the
properties or alternatively, receipt by Lender, to its satisfaction, of other evidence of zoning
compliance with respect to the properties.



          (vi) Intentionally omitted.



          (vii) Execution and delivery of a purchase and sale agreement in substantially the form which
has been approved by Lender and performance by Borrower of its obligations thereunder, to the
extent same are capable of being performed as of the Loan Closing.



          (viii) Review and approval of satisfactory title searches and surveys for each property and
delivery of title insurance policies or marked title commitments for all such properties in a form
and having endorsements satisfactory to Lender.



     (e) Except as approved in writing by Lender:



          (i) As to those properties for which a site inspection has been conducted, since the date of
such inspection by Lender, no material portion of such property shall have been damaged and not
repaired to Lender’s satisfaction, or shall have been taken in condemnation or other similar
proceedings, or any such proceedings shall be pending;



          (ii) As to those properties for which a site inspection has been conducted, since the date of
such inspection by Lender, there has been no material change in the structure or physical condition
thereof;



          (iii) neither Borrower nor any Guarantor or any affiliate thereof, or officers or principals
of any of the foregoing, shall be the subject of any bankruptcy, reorganization or insolvency
proceeding;



          (iv) no default shall have occurred and be continuing in the performance of any obligation of
Borrower, the Guarantors or any affiliate of any of the foregoing in the instruments evidencing,
securing or guaranteeing any other loan;



          (v) except as disclosed in the environmental reports required to be delivered to Lender and
which have been approved in connection with the Loan, no asbestos, toxic waste, oil or petroleum
spillage or other Hazardous Substances (as defined in the Loan Documents) or condition shall exist
on any property;



          (vi) intentionally omitted;



          (vii) the income and expenses of the properties, and any other features of the transaction
contemplated hereby, shall be substantially as represented in this Exhibit I or any other documents
delivered to, or communications with, Lender in order to induce Lender to make the Loan;



9









 





          (viii) a material adverse change shall not have occurred in (a) the financial condition of, or
(b) any information or other matters affecting, Borrower or the Guarantors since the date the
financial data, documentation, information or other matters relating to such persons or entities
was disclosed to Lender;



          (ix) no other change in facts, events, conditions or circumstances shall occur, and no new
facts, events, conditions or circumstances shall occur after the date hereof, which may reasonably
be expected to cause the Loan to become delinquent or to materially and adversely affect the (a)
Loan or property, (b) business, operations, properties or condition (financial or otherwise) of the
Borrower or Guarantors or (c) financial, banking or capital markets such that a prudent lender
would be unwilling or unable to close the Loan or unable or unwilling to securitize, syndicate or
sell on a whole loan basis the Loan thereafter; and



          (x) All of the information provided by Borrower, the Guarantors or any affiliate thereof, or
any officers or principals of any of the foregoing, in connection with Borrower’s application for
the Loan, including but not limited to questionnaires completed by any of the foregoing persons or
entities, was true and correct in all material respects on the dates provided and did not omit any
information necessary to render the information provided complete and accurate in all material
respects on the respective dates provided, and all such information shall remain materially
accurate on the Closing Date, except as Borrower has otherwise disclosed in writing to, and has
been approved in writing by, Lender. All representations and warranties by Borrower and the
Guarantors in the Loan Documents shall be accurate and complete on the Closing Date.



     (f) Intentionally omitted.



     (g) Any and all amounts required to be paid by Borrower on or before the Closing Date in
accordance with the Loan closing settlement statement (including, without limitation, amounts
specified by Lender in the Loan Agreement as initial deposits for the escrow and reserve accounts
required to be maintained under the Loan Agreement) shall have been paid to Lender’s designated
escrow agent by wire transfer of immediately available funds no later than 12:00 noon New York City
time on the Closing Date.



     (h) There shall have been no material adverse change to any of the due diligence conducted by
and approved by Lender as of the date hereof.




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